Reclaiming Human Rights: While the US Detracts, Non-State Actors Step Up

[Julie Fraser is a human rights lawyer and assistant professor with the Netherlands Institute of Human Rights and the Montaigne Centre at Utrecht University. Her monograph further exploring this topic is out this year with Cambridge University Press.]

The ongoing protests in the US against racial inequality in response to the killing of George Floyd have triggered both solidarity protests around the world as well as condemnation at home. However, this is not new for human rights, which have been contested since their proclamation in the Universal Declaration of Human Rights (UDHR) more than 70 years ago. However, commentators in the last decade have warned of increasing contestation of human rights as well as challenges to the institutions tasked to protect them. Examples include the election of President Trump in 2016 and the US’ withdrawal from the UN Human Rights Council, UNESCO, the Paris Agreement, and now the WHO. The former UN High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, criticised populist leaders including Trump, noting that “the further away we get from those historical and dreadful experiences [of WWII], the more we tend to play fast and loose with the institutions created to prevent repetition”. Academics have also commented on the decline of human rights, with Hopgood arguing that the “endtimes are coming for human rights as effective global norms”. The current protests across the US tell a different story.

The protests – as well as the many statements and actions in solidarity – suggest that human rights are not in fact facing their endtimes. While not necessarily using the language of human rights, protestors are demanding justice and equality, which are two of its key principles. Not only are individual rights-holders stepping up (and out onto the street), but so too are other actors, including businesses and social institutions such as religious groups and sporting clubs. For example, Jewish organisations, the Hellenic Council, and Catholics have voiced their support for racial equality in the US. The Pope declared racism a ‘sin’ and reiterated the sacredness of every human life. Basketball legend Michael Jordan, along with Nike, has pledged US$100m in support of Black communities, with other NBA players also speaking out. NASCAR issued a formal statement and the National Football League (NFL) changed its policy to allow players to ‘take a knee’ in protest of police brutality. As these examples show, private actors are using different ways to support the human rights of racial equality, freedom of speech, access to justice, and reparations for victims. Such rights are protected in legal instruments binding on the US including the 1965 Convention on the Elimination of Racial Discrimination and the 1966 International Covenant on Civil and Political Rights.

I argue that these non-state actors are crucial to the meaningful protection and promotion of human rights. While international human rights law (including the two instruments mentioned above) casts the state as the primary guardian of human rights, the role of non-state actors demands attention – especially when the state openly shirks its obligations. The UDHR itself notes in its preamble that ‘every individual and every organ of society’ is responsible for realising human rights. Despite the State’s centrality in international human rights law, this legal construction was never fully aligned with practice. For example, social institutions like families, women’s associations, and religious groups have been providing healthcare, social security, and education for centuries. Scholarship (including by Merry, Nyamu, and Fraser) has shown that due to their cultural embeddedness and legitimacy, social institutions can be highly effective promoters of human rights and providers of rights related services. Today, the role of private actors in human rights has only increased.

Due to factors such as globalisation and privatisation, businesses are increasingly engaging with human rights. For example, business and human rights has emerged as its own specialised field examining how businesses can be held accountable for their abuse of rights, as well as how they can promote rights within their sphere of operation. Discussions last century on voluntary Corporate Social Responsibility have developed into the recognition that businesses have human rights responsibilities (UNGPs), and to contemporary legal negotiations on an internationally binding treaty. While they may have mixed motivations, many businesses have joined the call in the US for racial equality. Ben&Jerrys have long spoken out against white supremacy and even launched a new flavour in 2019 – JusticeReMix’d – to raise awareness. Not only are businesses voicing support for equality, but they are also recognising their own shortcomings to date and pledging to do better. Apple’s CEO has made a number of commitments in a letter to staff regarding racial injustice, as did Google, including a pledge of US$12m. Lego has pulled marketing of its police and White House toy sets and pledged US$4m to education about racial equality.

While becoming more visible, such actions by businesses are not new. In the wake of President Trump’s announcement in 2017 that the US would withdraw from the UN Framework Convention on Climate Change (Paris Agreement), numerous other actors declared that they would continue to implement the agreement. Almost 4,000 private and public sector leaders across the US signed the ‘We Are Still In’ declaration or America’s Pledge committing to taking action on climate change, and to ensure that the US delivers on its climate goals. Climate change is, of course, inextricably linked with human rights including the rights to life and to health. This is a prime example of businesses and other private actors stepping up even when the State denounces its own obligations. There has also been a rise over the years of social enterprises, which are for-profit businesses that use their profit for social purposes including human rights. An example is Thinx, an organisation that sells sustainable women’s underwear and runs programmes focusing on adolescent reproductive healthcare education. Last week, they also voiced their support for racial equality and justice, and donated to the NAACP Legal Defense and Educational Fund. As these further examples show, while State-centricity is a persistent norm in international human rights law, it is increasingly a fiction in reality.

As the current mobilisation for racial equality illustrates, there is a need to recognise the role of non-state actors including businesses and social institutions in promoting human rights. Polycentric approaches to human rights realisation involving a multiplicity of actors should replace the State-centric one. The vague human rights responsibilities on non-state actors that have been articulated by the UDHR, the UNGPs and various UN treaty bodies need to be further elaborated. International human rights law should include businesses and other private actors in order for the law to better reflect and respond to practice. This is particularly pressing when the State – like the US right now – is the human rights detractor. Rejecting Hopgood’s negative forecast referred to above, Toft claims that ‘the human rights regime is not only not dead, but thriving’, and is arguably more decentralised and locally owned than before. Today’s challenging times do not present us with the end of human rights, but rather an opportunity to re-imagine and re-engage a wider variety of actors on human rights. Clearly, much more must be done to address the pervasive structural racism in our societies and its wide-ranging detrimental consequences. Given the persistent contestation and violation of human rights, it is necessary to have every organ of society engaged in their realisation.