Good Governance Papers No. 9: Building an Effective Human Rights-Based Foreign Policy

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

In 2017, in a memo leaked to the press, senior State Department appointee Brian Hook argued that under the Trump administration, “human rights, democracy promotion, and liberal values” should appropriately be seen as tools with which “to pressure, compete with, and outmaneuver” America’s enemies. “Allies,” Hook asserted, “should be treated differently.”

Intentionally or not, Hook’s stark words echoed an early 19th century quote generally attributed to Peruvian Field Marshal Óscar Benavides, “For my friends, everything; for my enemies, the law.” President Donald Trump may not recognize the reference, but there is little doubt that he embodies the concept. A man incapable of condemning neo-fascist street gangs who has demanded that state governors “dominate” protesters in America’s streets, Trump has thoroughly grounded his administration in the view that rules meant to govern the universal rights and responsibilities of citizens and governments alike are, in his words, for “suckers.”

To be fair, in many respects the only thing consistent about the U.S. government’s post-WWII support for human rights and democratic governance abroad has been its opportunism. Even in the best of times, the United States has often undermined its own long-term objectives in pursuit of perceived short-term security or economic gains. That includes treating allies with a softer touch than adversaries and others.

In the last four years, however, Trump hasn’t so much amplified American hypocrisy as he has fully inverted our position unabashedly in favor of authoritarianism. An administration that began on pledges to jail political opponents and enact travel bans based on religious belief has carried out a multi-pronged assault on human rights and support for democratic governance overseas so broad as to defy concise enumeration.

One could begin with deliberate policies to remove children from refugee and other parents at America’s borders, or support for excessive force in response to peaceful protests. Or attempts to gut aid to activists and crush America’s diplomatic corps. Or declarations of “love” for tyrants responsible for gulags in Pyongyang, or support for premeditated murderers in Riyadh. Or efforts to wreck America’s asylum and refugee resettlement systems, or to conflate international jurists investigating serious alleged crimes with terrorists and arms proliferators. The list goes on.

Notwithstanding the attestations of his secretary of state, Trump has rejected the notion that America should even attempt to be a force for good in the world. The results of this moral and strategic collapse are plain to see. No matter who wins in November, the next presidential administration will inherit an international landscape defined by frayed alliances, emboldened autocratic regimes, cratering international popular support, and impassioned calls for reform and justice at home. Plus, of course, a pandemic.

Yet the fact remains: because of both its history and heft, the United States is vital to the defense of democracy and human rights globally, just as the defense and renewal of democracy and universal rights at home is indispensable to the security, prosperity, and defining character of the United States. If America is ever to lead, inspire, and partner with the world again, it will need to take steps immediately to revive and advance a democracy and rights agenda that begins and builds from meaningful reform at home. Change will not happen overnight. But if the United States is to reestablish a foreign policy that hews to its long-stated principles while competing in a fraught international environment, it should take decisive, rapid action on two fronts: norm resetting, and rapid, meaningful policy reforms.

Norms Reset

Democracies draw strength not only from their laws but from their legitimacy. America’s credibility to stand against violations of democratic norms and fundamental rights depends on the example it sets at home and around the world. As early as practicable in a new administration, and foreshadowed by his January 2021 inaugural address, the president should deliver a major foreign policy speech reasserting the primary role that democracy strengthening and human rights protection will play in his administration. Global in scope, this speech should be framed around two essential points.

First, it should explicitly pair the need for democratic resilience and renewal at home to U.S. interests abroad, as Vice President Joe Biden stated in his March 2020 Foreign Affairs article announcing a plan to host a “Summit for Democracy.” The global onslaught against democracy and human rights won’t wait patiently for America to get itself sorted at home. But nor can the United States effectively implement an international agenda detached from our domestic realities. Indeed, the fight against injustice, inequality, and impunity at home only strengthens our strategic position around the world, and must become part of an integrated plan for deepening support for democracy and human rights globally. This should mean moving past old-fashioned views of American exceptionalism and being forthright about the challenges in our own democracy. The United States currently has the opportunity to model one of democracy’s finest traits: self-correction. It should use it.

Second, the speech should promote the defense of democracy and human rights not just an expression of American values, but as the basis of our security and prosperity. Facing Beijing’s exportation of a techno-authoritarian model, Vladimir Putin’s malignant kleptocracy, and strategically disruptive ethno-nationalism from the Danube to Delhi, the moral and practical force of democracy is America’s single strongest comparative advantage. Starting early in 2021, the president should state unequivocally that democratic backsliding and the erosion of human rights globally is a threat to U.S. national security—and the renewal of democracy is a national security imperative.

Policy Reform

In tandem with the speech outlined above, the next administration should invest attention early on “quick fixes” of Trump’s most egregious missteps over the past four years. The list here is long, but should, at a minimum, include executive actions in the following categories.

  • Restart Access to Asylum. Early in its tenure, the administration should issue a new executive order overturning and/or abolishing the suite of policies that have gravely endangered asylum seekers, including the so-called “Remain in Mexico” program; expulsions relying on a series of specious public health orders; entry and transit bans and denials; “asylum cooperation agreement” transfers to unsafe countries; “metering” reductions at border ports-of-entry; and fast-track deportation programs blocking legal representation.
  • Resume Refugee Resettlement. Via executive order, the administration should immediately rescind the series of discriminatory Muslim, Africa, and refugee bans based on ethnicity and nationality and reset the refugee admissions goal for 2021. Biden has committed to raising this target to 125,000, an important symbol of the durable commitment to rebuilding the U.S. Refugee Admissions Program from rubble of the war Trump and his immigration hardliners have waged against it. The administration, regardless of who occupies the Oval Office, should also promptly improve the pace with which Afghans and Iraqis at risk due to their work with the U.S. military, diplomats, and development officials are brought to safety, in keeping with a solemn obligation we owe these men and women.
  • Stop Arming War Criminals and Reform Arms Transfers. Emboldened by the Trump administration’s “sell arms and ask no questions later” approach to its Gulf partners, the Saudi-led coalition continues to use American arms to bomb civilians in Yemen. The next president should immediately curtail support to Saudi-led forces operating in Yemen (something Biden has pledged to do). But it should also go further in terms of reform of security sector assistance and arms transfers.

Among other worthwhile steps catalogued by Human Rights First, CIVIC, and the Stimson Center in two recent reports, the administration should pledge to abide by existing but ignored law (22 U.S.C. § 2304) that prohibits the executive branch from providing security assistance to foreign governments that have engaged in a “consistent pattern of gross violations of internationally recognized human rights,” subject to presidential waiver. And it should also create a process to certify that arms transfer recipients have not and are not foreseeably likely to use U.S. arms to commit gross violations of human rights. Finally, it should take these unilateral steps while pushing Congress to update and amend the Arms Export Control Act in ways that strengthen human rights protections. Smart legislation on this topic has recently emerged from Senators Menendez, Leahy, and Kaine, as well as Senator Murray.

Were Trump to win reelection, Congress should push forward on these reforms, which in many respects should be able to garner bipartisan support.

  • Rejoin the Human Rights Council. Biden has already committed to a rejoin a body that, while seriously flawed, serves an important role in multilateral efforts to protect human rights. Rather that ceding ground to China, Russia, and other governments seeking to erode the international human rights architecture, the next administration should reengage with and seek reelection to the HRC, while working with allies to advance meaningful reform.
  • Overturn Sanctions Against the ICC. Trump’s decision to sanction staff members of the International Criminal Court (ICC) undermines the legitimacy of American sanctions more broadly, sabotages vital criminal justice efforts, alienates us from our allies, and creates an opening for genocidaires and war criminals aiming to attack those that scrutinize their actions, all while doing nothing to protect Americans. The next president should immediately direct the Treasury Department to remove sanctions placed on senior ICC staff, while eliminating the executive order authorizing such penalties.
  • Abolish the Commission on Unalienable Rights. Secretary of State Mike Pompeo’s politically motivated, anti-human rights Commission should have never existed. It was opposed by hundreds of human rights NGOs, scholars, and practitioners, sidelined the State Department’s human rights experts, and sought to “fix” a problem that doesn’t exist. The next Secretary of State should disband it, and instruct the State Department’s workforce to ignore its highly flawed report.
  • Fight Corruption. Biden has announced that he will issue a presidential policy directive that “establishes combating corruption as a core national security interest and democratic responsibility,” and will lead efforts to circumscribe the ability of kleptocrats to utilize anonymous front companies. While the most valuable elements of this push will require the enactment of legislation like the Corporate Transparency Act (CTA), the next administration can take unilateral steps to fight corruption by expanding the definition of “financial institutions” subject to various reporting and record-keeping requirements; expanding the applicability of Geographic Targeting Orders to close the real estate loopholes that allow foreign individuals to launder their ill-gotten gains in the United States; and directing the Secretary of State to establish new, senior anti-corruption coordinators in each of the State Department’s six regional bureaus.
  • Stop Turning a Blind Eye to COVID-Related Repression. Freedom House reports that the condition of democracy and human rights has grown worse in 80 countries since the onset of COVID-19. Steeling the resolve to resist government overreach is a primary responsibility of civil society, the vibrancy of which is a strong determinant of healthy democracy. Congress has advanced strongly bipartisan legislation, entitled the Protecting Human Rights During Pandemic Act” (PHRDPA) responsive to the “parallel pandemic” of rights violations made under cover of public health responses. The next administration can, and should, push for the passage of the PHRDPA and then quickly work to implement its provisions.

The next administration should also request a marked increase in democracy and human rights foreign assistance to address the needs of a poorer, sicker, less democratic post-COVID-19 world, while adapting the way the United States supports civil society and democratic movements. The challenge is to provide effective means of support to non-violent social movements without endangering or overly professionalizing them. Recent work by the U.S. Institute of Peace indicates that such forms of flexible support are possible and desired, but will require changes to U.S. government funding mechanisms.

  • Empower Women and Protect Public Health. Biden has laid out a comprehensive women’s equality program that includes as its centerpiece a White House Council on Gender Equality to coordinate economic, health care, racial justice, gender-based violence, and foreign policy matters that impact women and girls. He has also pledged to rescind the Trump administration’s expanded Mexico City Policy, which bars the U.S. government from supporting organizations overseas engaged in public health work if they also offer information on abortion services, and to pursue ratification of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The next administration should take those steps but also supplement such efforts by immediately rescinding USAID’s regressive 2020 Gender Equality and Women’s Empowerment Policy and disavowing the so-called “Geneva Consensus Declaration,” a “pro-family” political statement advanced by Secretary Pompeo and a who’s who of authoritarian governments.
  • Promote LGBTQ+ Equality. As explained by Human Rights Campaign, among other actions, the Trump administration has rolled back Department of Justice legal interpretations that protected LGBTQ+ workers from employment discrimination, overruled military leaders to ban transgender service members from the armed forces, and submitted Supreme Court amicus briefs urging discrimination against LGBTQ+ people. In a direct acknowledgement that American leadership on the rights of LGBTQ+ people abroad depends on setting the example at home, Biden has committed to reversing these policies. He has likewise appropriately committed to issuing a Presidential Memorandum prioritizing support for LGBTQ+ rights, while reconstituting senior envoy positions focused on the issue at State and USAID.
  • Elevate Human Rights and Democracy Within the Bureaucracy. Last but not least, rather than reverting to the Obama administration status quo, the next administration should make serious changes to how it structures key administration institutions to give lift to a foreign policy centered on protecting human rights and democracy.

At a minimum, it should take two critical steps: (1) elevating the rank of the senior National Security Council (NSC) official responsible for these matters to Deputy Assistant to the President and staffing his or her office accordingly; and (2) directing the Secretary of State to include the Under Secretary of State for Civilian Security, Democracy, and Human Rights in all significant policy decision-making within State and through the NSC process. More ambitiously, the next president should consider establishing a senior ranking democracy and human rights coordinator who would span the NSC, Domestic Policy Council (DPC), and National Economic Council (NEC) in order to directly tie a pro-democracy agenda at home to American interests abroad. Finally, the next Secretary of State should launch a reform of the Foreign Service’s career progression criteria. At present, unofficially, service in one of the department’s bureaus tasked with defense of human rights can be a career killer. It should instead be viewed as a career enhancement.

President Trump and Secretary of State Pompeo have taken a blowtorch to U.S. credibility on democracy promotion and human rights. Pompeo in particular seems to revel in attacking human rights NGOs while going so far as to host “human rights” events populated overwhelmingly by the most repressive governments on the planet. The next administration will have its hands full in repairing the damage. But there is also ample opportunity and need to significantly improve commitments to human rights and democracy beyond what the Obama administration achieved. In pursuing its objectives, the next administration should act swiftly but remain humble. The world has witnessed a United States greatly diminished; its own democratic confidence badly shaken. Yet as compared to those governments who admit no fault and brook no criticism, the United States retains the ability to learn from its mistakes. That remains a fundamental strength upon which to build a new foundation. 

About the Author(s)

Ariana Berengaut

Director of Programs, Partnerships, and Strategic Planning at the Penn Biden Center. Follow her on Twitter (@ArianaBerengaut).

Rob Berschinski

Senior Vice President for Policy at Human Rights First, Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor Follow him on Twitter (@RobBerschinski).