The COVID-19 pandemic. Nationwide protests against police violence. Events of 2020 have commanded widespread attention to what progressive social movements have long understood—that racial discrimination and economic inequality perpetuate differentially enjoyed rights in the United States. These conditions are about to worsen. President Donald Trump has nominated Amy Coney Barrett to fill the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s passing. And Senate Republicans have all but assured her confirmation.
Barrett’s appointment will cement a 6-3 conservative majority on the Supreme Court, with crippling effects on constitutional rights for decades. As constitutional law scholars Leah Litman and Melissa Murray have observed, “The change brought by a 6-3 conservative majority would . . . affect issues at the heart of a functioning democracy and government—positioning the GOP to maintain its grip on political power at the expense of democratic principles and preventing historically disenfranchised groups from accessing civic institutions.”
With no clear path to rebalancing the Court’s ideological split, the United States is plausibly entering a new era of rights restrictions, accelerating the trend that has alarmed legal scholars and social justice advocates since the nomination of Justice Neil Gorsuch in 2017. Social justice movements must abandon their longstanding reliance on the Supreme Court to stave off the worst threats to the rights of members of marginalized and vulnerable groups. The fight for rights in the United States may well start to more closely resemble, for perhaps the first time since the civil rights movement, that in many places abroad.
In response to the failure of domestic judiciaries to protect rights, a global human rights movement has emerged. Around the world, in the face of weak or hostile courts, often compounded by political repression, domestic rights movements have appealed to international human rights law and institutions for help. Rights-based organizations and social justice movements in the United States similarly should reconsider their advocacy methods to take full advantage of an international strategy.
Historically, U.S. civil rights and social justice organizations have largely focused their attention domestically. The U.S. civil rights movement combined bottom-up, grassroots activism—including protest marches, sit-ins, and voter registration drives—with strategic litigation to advance equal rights for Black Americans. Other groups facing identify-based discrimination, such as women, members of the LGBTQ+ community, and Latinx, Native American, and disabled people, have formed organizations and used similar tactics to press for expanded legal protections. These movements have achieved significant, hard-fought victories almost exclusively through domestic advocacy. Strong rule-of-law traditions and independent courts in the United States have, over the years, enabled groups to leverage demonstrations and legal strategies to secure social change. But President Trump has undermined these conditions. The President has fanned the rise of the far right, used executive power to crusade against immigration, and made considerable progress in packing the federal courts with overwhelmingly White, male, and conservative loyalists who hold life tenure. With a conservative Supreme Court in place for the foreseeable future, international human rights offer U.S. social justice movements new leverage.
In the United States, progressive activists unite under the banner of “civil rights,” i.e., individual rights guaranteed and protected by the government. In the rest of the world, what we in the United States call “civil rights” are referred to as “human rights” and cover a broader range of protections. These rights are considered fundamental and owed to each of us by virtue of being human. Within the United Nations system, human rights are embedded in the international legal order through the 1948 Universal Declaration of Human Rights and codified in a series of international treaties. Unlike civil rights in the United States, the core of human rights include not only civil and political rights—e.g., the rights to freedom of expression, assembly, and liberty—but economic, social, and cultural rights—e.g., the rights to education, health, and an adequate standard of living.
This capacious understanding of human rights is expressed as demands for human dignity, which undergird mass mobilizations from Poland’s Solidarity movement in the early 1980s to the Egyptian revolution thirty years later. Further, human rights law enshrines robust protections against discrimination based on race, sex, and other classifications alongside state duties to prevent violations and hold perpetrators accountable for abuses. Given the intersection of economic inequality and racial discrimination in the human rights corpus, international human rights offer U.S. social justice groups a powerful discursive and legal framework beyond the narrower constraints of civil rights praxis. Opal Tometi, a cofounder of Black Lives Matter, has recognized these distinctions, stating that human rights law, compared to domestic law, provides a more powerful framework for tackling impunity for police killings. For example, human rights law obligates states to conduct impartial and effective investigations of arbitrary police killings. This requirement, if coupled with use force standards that complied with the higher international standards, would yield greater police accountability in the United States.
The prominence of civil rights in the United States relative to human rights is no historical accident. During the founding of the United Nations in the early days of the Cold War, the U.S. delegation, led by Eleanor Roosevelt, actively ensured that the institution would lack the authority to scrutinize racism in the United States. As a result, the civil rights movement turned away from international fora as sites of activism.
Human rights critics of the United States have often chastised the state as a two-faced champion of human rights. U.S. governments routinely support enforcement of human rights in other countries while failing to ratify human rights treaties or to join the International Criminal Court, thus shielding itself from international investigation of its own human rights abuses. Even when an international human rights movement developed in this country starting in the 1970s, it focused its attention on U.S. involvement in violations committed outside the United States. Human Rights Watch was founded in 1978 and directed by former ACLU Executive Director Aryeh Neier. Under Neier’s leadership, HRW rose to prominence and helped catalyze reform of U.S. foreign policy in Central America. By deploying international human rights law as the basis to report on violations committed in Guatemala and El Salvador by U.S.-funded forces fighting the threat of Communism, HRW and others made human rights central to U.S. foreign policy debates for ordinary Americans. This U.S.-based human rights strategy ultimately contributed to the Reagan administration’s decision to moderate its support of anti-Communist governments and rebels responsible for horrific abuses.
While HRW perfected “naming and shaming” to change U.S. policy abroad, human rights groups, mostly based in the Global South, used this strategy to pressure their own governments to protect citizens domestically. Scholars Margaret Keck and Kathryn Sikkink call this the “boomerang effect.” Domestic activists enlist human rights actors in other countries to mobilize information and international attention against their governments, ultimately inducing them to change their behavior. In a classic example, human rights groups around the world supported the campaign to dismantle South African apartheid, using a variety of shaming and pressure tactics. These tactics ranged from boycotts, sanctions, and embargoes to a worldwide petition that led the U.N. Security Council to demand that South Africa end the trial of Nelson Mandela. Human rights groups bolstered international isolation of the White South African government, which eventually negotiated a peaceful transition to democratic rule under a Black African majority.
Past experience shows that human rights movements are most likely to appeal to international law and mechanisms when courts at home are ineffective at resolving disputes over rights. As domestic court-centric strategies no longer pay off, or backfire, U.S. social justice groups may increasingly turn to a boomerang strategy.
We see some evidence of this happening already. In May, the killing of George Floyd by Minneapolis police officers ignited nationwide protests against police violence and White supremacy. A few weeks later, the families of George Floyd, Breonna Taylor, Philando Castile, and Michael Brown sent a letter to the U.N. Human Rights Council, the inter-governmental body charged with promoting and protecting human rights, pleading for it to take action. The effort was coordinated by the ACLU and the U.S. Human Rights Network, and generated signatures from over 600 human rights groups internationally. The letter called on the Council to convene a special session on human rights in the United States. It also urged the creation of an independent commission of inquiry into violations of U.S. treaty obligations, including the “recent history of racist policing” in the United States, impunity for police killings, and excessive force used against peaceful protestors and journalists in recent demonstrations.
U.N. investigations of states for human rights violations is a familiar technique in a boomerang strategy. Commissions of inquiry and fact-finding missions enjoy international prestige and a reputation for exacting research and impartial findings. Unlike with reporting by nongovernmental organizations, member states have a legal duty to cooperate with U.N. investigations. Recommendations of these bodies lay the groundwork for further international intervention, including ongoing monitoring and reporting. They also often recommend governments to undertake institutional and policy reforms. Currently, the Council has several states under such scrutiny including Burundi and Syria. Putting the United States in the same category as states that have been the subject of international condemnation for years of mass human rights violations signals international opprobrium and damages U.S. prestige. Sustained international attention on systemic causes of police killings of Black people will support the work of social justice groups within the United States, just as the international campaign against apartheid helped bring down racist White rule in South Africa.
In an unprecedented move, the Council went ahead with a rare special session. The body never before had considered an international inquiry directed at a western state besides Israel, let alone one of five permanent members of the U.N. Security Council. The Council considered a resolution proposed by Burkina Faso on behalf of African states, which called for action along the lines proposed in the family members’ letter. Top U.N. human rights experts addressed the session, urging action to address systemic anti-Black racism, police brutality, and impunity for violators. Intense pressure by U.S. allies succeeded in softening the resolution, which ended up tasking existing U.N. officials with examining the issues rather than creating a dedicated body. The resolution also emphasized that the United States would be but one country among many whose law enforcement practices would be studied.
Though human rights groups did not wholly achieve their desired outcome, the initiative at the Council demonstrated that U.S. social justice organizations have built a transnational network that can be mobilized to great effect. Over the last decade, the U.S. Human Rights Network has nurtured a domestic human rights movement built around a commitment to holding the U.S. government accountable to universal human rights standards. U.S. advocates see value in the international human rights legal framework as well as its capacity to build a global movement to eradicate systems of oppression. Further, commenting on the power of engaging the international human rights movement, Tometi noted: “[A]nti-blackness is global. Structural racism impacts Black people and their quality of life and freedoms everywhere. So, it’s important to strengthen solidarity with movements and members of civil society in these types of international spaces.”
The need for international solidarity will only increase with a reliable conservative majority on the Supreme Court. But this summer suggests that the Council and other international human rights bodies may become more willing to scrutinize the United States for its failure to protect human rights at home. While the United States watered down the Council resolution through diplomacy, it could not stop the session from taking place. After undermining international law through its War on Terror and withdrawing from the Council two years ago, the United States can no longer play the role of international human rights champion in the same way as it has in the past. Rather, the United States faces ongoing and increasing risks that it will be subjected to international castigation as a human rights abuser.
This summer’s action at the Council is the result of over half a century of cultivating a U.S. human rights movement. Transnational networks of domestic human rights groups partnered with social justice organizations, U.N. human rights experts, diplomats, and academics to internationalize racism in the United States as a human rights issue that demands a human rights response. Regardless of whether Judge Barrett is confirmed or President Trump is reelected, social justice movements can take to the international arena to articulate and hold the U.S. government accountable to a human rights agenda. After all, U.S. human rights groups are part of the nearly 6,000 civil society organizations that currently advocate at the U.N. The boomerang strategy is designed for repeat players, and U.S. groups are honing their skills.
Laurel E. Fletcher: Clinical Professor of Law, Co-Director of the International Human Rights Law Clinic, and Co-Director of the Miller Institute for Global Challenges and the Law at Berkeley Law.
David Maxson Harris: Senior Executive Editor for the California Law Review and member of Berkeley Law Class of 2021.
Recommended Citation: Laurel E. Fletcher & David Maxson Harris, The Case for U.S. Social Justice Movements to Go International, Calif. L. Rev. Online (Oct. 2020), https://www.californialawreview.org/u.s.-social-justice-movements-international.