The Draft Order on Multilateral Treaties and the Trump Administration’s Failure to Understand the Human Rights of National Security

On January 25, the New York Times reported on a leaked draft executive order (EO) draft to impose a moratorium on joining new multilateral treaties and establish a review committee to reconsider participation in all such treaties to which the United States is a party or might join.

The draft EO expresses an exceptionally unusual and flawed understanding of the relationship between national security and human rights. Even if never executed, the draft and its explanatory statement reveal dangerous thinking by the Trump Administration that is cause for concern.

As the Times notes, the executive order would only apply to treaties that are not related to national security, extradition or trade. However, as Lawfare put it, “it is unclear which treaties would be included in these categories.”

The order does make clear, however, manifest intention to target human rights treaties for withdrawal and non-participation. The explanatory statement cites the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Rights of the Child Convention, as “not appropriate matters for international treaties.”  Both are mainstream human rights agreements in which U.S. non-accession is a clear outlier (the U.S. is one of seven states not to ratify CEDAW and the lone holdout to the Rights of the Child Convention since Somalia signed on in 2015).

First, the draft EO explanatory statement asserts that treaties “force countries to adhere to often radical domestic agendas” that would not otherwise comport with domestic law is bizarre. Developing states have often suggested the “universal” human rights promulgated through the UN impose distinctly Western values. The Trump Administration’s language seems to turn this on its head, painting the United States as the disempowered victim of foreign values and imperialism. That’s not an argument the U.S. has ever asserted before. Not only has the U.S. been a primary architect of the contemporary international law regime, as a global superpower the victim-card is a difficult one to play. 

Second, excluding “national security” treaties from review while targeting human rights treaties for withdrawal grossly misunderstands their direct relationship. The World War II “proliferation” of human rights agreements reflects international security concerns as much, if not more than, any moral prerogative.

Being a global superpower means that there’s no place in the world where the U.S. lacks vested interests. As a result, when conflicts erupt and spread, U.S. interests are almost guaranteed to be implicated.

Franklin Roosevelt’s “Four Freedoms” speech in 1941 ultimately served as a de facto mission statement in the infancy of the United Nations, but it was originally perceived as a “plea for all aid short of war.” Exposing the U.S. to enmeshment in World War II could only be justified if it led to a world engineered to avoid the next global conflagration. To Roosevelt, failure to provide secure employment, civil liberties, and a constantly rising standards of living was the “root cause of the social revolution” that sparked and fed the war. The view that America’s security is inextricably entwined with the world’s and that “enduring peace cannot be bought at the cost of other people’s freedom” has been a cornerstone of American foreign policy philosophy of Democrat and Republican presidents ever since.

Envisioning rights and security as linked is intuitive and familiar: A repressive government sparks protests, the government uses violence to suppress protests, violence radicalizes and unifies opposition, and the cycle of violent action and response escalates. Quite clearly this describes Syria, as well as dozens of other conflicts of recent history.

However, verifying the interdependence of human rights and national security doesn’t depend on intuition or theory. An article published last year in the International Area Studies Review demonstrates the tie through empirics. The authors found that (1) human rights violations elevate a state’s risk of civil war indicates, and (2) infringements of social or economic rights and rights of physical integrity (like torture) are the violations most likely to inflame internal conflict. Internal conflicts, once lit, almost immediately have international consequences as refugees flee, third-party states get involved and the risks inherently expand to global security ecosystems.

Drawing together the leaked order on multilateral treaties and another leaked order on detention and interrogation, it’s easy to conclude that the human rights laws most important to international stability are most vulnerable to U.S. disavowal under the new Administration.

I don’t expect a U.S. withdrawal or continued non-participation in major human rights agreements would fundamentally undermine rights enjoyed by most Americans. I suspect, however, that most national security and human rights experts would agree that U.S. abdication of its longstanding role in promoting human rights agreements would increase the number and severity of abuses around the world. In turn, this would foster international instability that quickly enmeshes U.S. national security interests.

In short, as a global trend towards authoritarian regimes and democratic backsliding threaten rights generally, indicators that the Administration intends to deconstruct human rights and international security systems built by its predecessors can only weaken national security.

Image: Milos Bicanski/Getty Images 

About the Author(s)

Scott Sullivan

Harvey A. Peltier, Sr. Professor of Law at the Louisiana State University Law Center Follow him on Twitter (@smsullivan_).