Gerald Neuman
Before the coronavirus pandemic disrupted everything, world politics was unsettled by a series of electoral successes of right-wing populist parties, leaders, and movements. They have not gone away. Some remain in office, and others hover in waiting. The populist project of Brexit is a reality and its tensions continue. Meanwhile, in Latin America, some left-wing populists cling to power, as in Venezuela and Nicaragua, and others have been resurging, as in Bolivia.
The growing strength of populism in established democracies that have previously provided key support to the international human rights regime raises special concern. It not only endangers human rights within those countries’ own borders, it also threatens to weaken the international system for protecting human rights abroad. The harms are not greater than those created by fully authoritarian governments, but the decay of rights-respecting governance is alarming. Now that the Trump presidency has ended, one may ask how the United States and other countries that see the dangers can contribute to preventing them.
With this purpose in mind, the chapter begins by examining the concept of populism, which is debated among political scientists. The analysis favors the “ideational approach,” which understands populism as employing an exclusionary notion of the people—the “real people,” as opposed to disfavored groups that are unworthy—and that purports to rule on behalf of the “real people,” whose will should not be constrained. I do not claim that this is the only possible understanding of populism or that it covers all the phenomena that have been characterized as “populist.” Rather, this definition captures the relevant category of populism for the inquiry that it undertakes. I will sometimes specify this as “exclusionary populism,” as explained later.
The chapter then sketches the negative effects that populism may produce on internationally recognized human rights, both internally and through its influence on foreign policy. This is followed by a discussion of responses to exclusionary populism and its effects, by international human rights institutions, by rights-respecting governments in general, and by the United States in particular as a country recovering from populism.
The Meaning of Populism
The leading contemporary account of populism employed by political scientists is the ideational approach. Cas Mudde has described populism as “an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite,’ and which argues that politics should be an expression of the volonté générale (general will) of the people.”[1] Jan-Werner Müller further adds, “Right-wing populists also typically claim to discern a symbiotic relationship between an elite that does not truly belong and marginal groups that are also distinct from the people.”[2] These accounts stress important common features: populists are antipluralist; populists have an exclusionary notion of the “real people” that they contrast with morally reprehensible elites; and populists claim to speak for the will of the “real people,” which should not be constrained. This ideational conception covers a wide range of more specific forms of populism, including left-wing populists, right-wing populists, and some who are neither. But merely criticizing an elite, or invoking “the people” is not enough to make someone a populist.
Other political scientists have favored different accounts of populism, for example, as an opportunistic strategy pursued by particular leaders, or as a matter of performance or political style.[3] The political-strategic approach views populism as an electoral strategy of a personalistic leader who asserts a direct relationship with the people.[4] Other authors define populism as a form of rhetoric, communicating an identification with the people; this rhetorical approach measures the populist character of a speaker as a matter of degree.
A school of political thinkers on the left, following Ernesto Laclau and Chantal Mouffe, has theorized populist mobilization as a discursive method necessary for constructing a “people” unified in antagonism to the elites in power in order to bring about transformational change.[5] How such a transformation can develop into a stable, rights-protecting democracy, however, is very unclear, as the examples of Venezuela, Bolivia, and Nicaragua illustrate. From a human rights perspective, it is important not to overlook the risks that left-wing populism can also create.
Another contrasting usage of the term “populist” involves theorists or activists who proudly claim the label for a pluralistic, participatory empowerment of the full electorate, consistent with equal rights for all. It should be emphasized that this type of rights-respecting populism is not the subject of this chapter.
Given such variations in usage, some care is required in drawing conclusions from the academic literature on populism. Authors disagree on what “populism” means and on who counts as a populist. I will argue later that, in view of these uncertainties, populism should not be treated as an operative legal concept; rather, outside observers should derive heuristic benefit from close attention to populists’ actions.
Without claiming that the ideational approach provides the best definition for all purposes, or covers the full range of individuals and groups that could reasonably be called “populist,” one can justify the usefulness of that approach in identifying current dangers. First, ideational populists invoke an antipluralist understanding of “the people.” Second, the ideational approach emphasizes their claim to implement the people’s will without legal or institutional constraint. Third, the ideational approach applies both to personalistic leaders and to parties. Perhaps the relevant category should be called “exclusionary populism.”[6]
Political scientists have offered various explanations of the causes of populism.[7] In this regard, the factors may vary from country to country and at different periods, and the studies may employ different definitions of populism. Some scholars see populist politics as appealing to voters whose identities have been destabilized by modernization or globalization.[8] Others perceive populism as resulting from failures of democratic governance, in European states where convergence among parties constricts the range of policy choices, or in Latin American states where entrenched corruption leads the established parties to neglect the basic needs of the citizenry.[9] Pippa Norris and Ronald Inglehart trace the current success of authoritarian populists to a cultural backlash produced by structural changes in economics, politics, and society.[10] Richard Heydarian has emphasized that different causes operate in emerging market democracies in Asia, where despite economic growth weak institutions have been unable to meet the rising expectations of the middle classes.[11]
It is worth noting here that some of the factors identified in the literature relate to governments that fail to serve the human rights of their population, while others involve a cultural backlash that includes the negative reaction of some citizens to improvements in the human rights of others, possibly racial minorities or women. These types of causes may also operate conjointly—as when majority group members whose economic and social rights are neglected resent attention to minority groups that may be even more disadvantaged.
Dangers for Human Rights from Exclusionary Populism
This section illustrates some of the dangers of exclusionary populism to human rights within a country, to human rights in other countries, and to the international system for protecting human rights.[12] The point is not that populism threatens human rights more than fully established authoritarianism does; China and Russia (which I would not regard as democratic enough to be populist) pose greater dangers. In fact, some of the international risks that populism creates are intensified when populist governments make common cause with autocrats.
Even before populists come to power, they may incite private discrimination or violence, and existing parties may compete with them for votes by adopting some of their exclusionary policies. However, the risks multiply once populists control governmental authority and resources.
To start with, the populists’ narrowed definition of “the people,” combined with unconstrained implementation of what they claim to be the will of the people, threatens the rights of the excluded groups. The victims may include the ousted elites, but also vulnerable minorities whom the populists think the elites wrongly protected. The threatened rights may involve equality, economic rights, liberties, fair trial, or even life, depending on the particular local situation.
The dangers spill over, however, to other social groups. Once in power, populism risks tipping over into authoritarianism. Political scientists have emphasized the tendency of populist leaders to claim that only they represent the popular will and to deny the legitimacy of any opposition. Thus the category of enemies of the people may expand to encompass former allies, dissenters, and critics. Populists often aim to entrench themselves in power, dismantling legal guarantees of fair electoral competition and disrespecting the political rights of everyone, including their own constituency. They also disdain checks and balances, and may attempt to take over, replace, or abolish institutions such as the judiciary and independent watchdog agencies. Meanwhile, populists may seize the opportunity to enrich themselves and their major supporters, neglecting the needs and rights of the people they purport to represent.
Populists may employ the language of individual rights and in some cases may do more for the rights of their own voters than previous governments had done. From a human rights perspective, however, the allegiance of populists to rights is generally selective and defeasible. They may favor the social rights of the poor, free speech rights of the intolerant, or religious rights of the majority, for example, but only until these interfere with the populists’ other priorities. Populist governments may distribute benefits to the poor on a discretionary basis, requiring personal political loyalty in return, rather than implementing genuine social rights.
In addition to violating rights of those they govern, populists clash explicitly with international human rights institutions. Populist agitation may include a focus on how human rights law interferes with implementing the populist understanding of the general will. This conflict may predate a populist’s rise to power, as with the Euroskeptics, or it may begin later, after policies have been adopted and criticized, as when the International Criminal Court began to examine Rodrigo Duterte’s sanguinary drug enforcement in the Philippines. The judges or personnel of the international institution, and human rights advocates relying on that institution, may then be identified as yet another corrupt elite.
Populist governments may engage in ad hoc defiance of particular rulings or broader efforts to insulate their policy from international scrutiny and interference. Venezuela under the presidency of Hugo Chávez withdrew from the American Convention on Human Rights in 2012, and then his successor Nicolás Maduro resigned from the Organization of American States (OAS) altogether in 2017. (Venezuela also created rival forms of regional cooperation to compete with those it rejected; but as mismanagement, corruption, and the fall in oil prices produced the collapse of the Venezuelan economy, these initiatives have withered.[13]) Similarly, the Philippines withdrew from the International Criminal Court after it attracted the Prosecutor’s attention.[14]
Nevertheless, populist regimes may be willing to invoke international human rights mechanisms as tools to serve their own goals, either as allies against domestic opponents or in support of their foreign policy positions, just as they selectively employ rights domestically. For example, Bolivia turned to the OAS under the Inter-American Democratic Charter in 2008 to help Evo Morales overcome resistance to his proposed constitutional reforms. The right-populist Trump administration repeatedly attempted to utilize the same Charter against left-populist Venezuela, and it pursued some country-specific resolutions before quitting the Human Rights Council.
Some populist governments seek to have impact on human rights outside their borders. Although there is no single typical populist foreign policy, certain governments have contributed to the spread of populism by assisting like-minded populists in other countries.[15] Hugo Chávez famously used Venezuela’s oil wealth to support left-wing populists in other Latin American countries. Prime Minister Viktor Orbán of Hungary has openly campaigned for right-wing populist candidates in nearby countries such as Slovenia and North Macedonia and has reportedly channeled financial support to them.
Instead of withdrawing from a human rights mechanism in order to avoid its scrutiny, as described above, a populist government may remain in the system and attempt to undermine or obstruct it. The government may actively lead efforts to undermine the mechanism or it may join or acquiesce in such efforts by other populist governments or fully autocratic states. For example, left-populist governments led by Venezuela, Bolivia, and Ecuador (under Rafael Correa) protected one another from OAS sanctions and sought to constrain the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.[16] Bolivia, Nicaragua, and Venezuela have joined with Russia and China in endeavors at the United Nations (UN) to weaken the global treaty body system.[17]
The role of populist members who remain in the system has become increasingly problematic as populists gain power within key supporters of the international human rights regime. Prominent examples have included the United States under Donald Trump and the European Union (EU), as will be discussed.
Populist governments may decrease their financial support to international human rights institutions, either deliberately to weaken them or merely because they want to keep the funds for purposes they value more. They may seek to change the output of international human rights institutions directly, in political bodies where governments hold seats of their own, such as in the General Assembly and the Human Rights Council, or indirectly, by modifying the procedures of more independent expert bodies that the political bodies oversee.
The spread of populism in Europe has weakened the European Union’s capacity for promoting human rights within and beyond its own region. The populist-fueled Brexit has confronted the EU with the loss of an economically and diplomatically important member with a strong rule-of-law tradition. Hungary and Poland have both defied EU human rights measures and shown their willingness to hold the EU budget hostage in order to insulate themselves from financial sanctions for violating their rule-of-law obligations.[18]
Turning to the United States, the unforeseen rise of Donald Trump may have had multiple causes, but populist appeals formed a central feature of his campaign and continued on an essentially daily basis. As Ronald Inglehart and Pippa Norris observed, “Trump’s rhetoric stimulated racial resentment, intolerance of multiculturalism, nationalistic isolationism and belligerence, nostalgia for past glories, mistrust of outsiders, sexism, the appeal of tough leadership, attack-dog politics, and racial and anti-Muslim animosity.”[19] The harms that the Trump administration inflicted on human rights within the United States have received widespread attention, often expressed in terms of the subversion of democracy and U.S. constitutional principles. In addition to its domestic effects, the Trump presidency was extremely damaging to human rights globally, not only by the appalling example that it gave, but by its deliberate encouragement of other right-wing populists and autocrats, such as Hungary’s Viktor Orbán, Israel’s Benjamin Netanyahu, Brazil’s Jair Bolsonaro, and Egypt’s Abdel Fattah al-Sisi, and by its attacks on the international system. This damage persists, despite Trump’s defeat in the 2020 election, and regardless of whether he later returns as a candidate.
To give a few examples, Trump was contemptuous of international cooperation, condemned the European Union, withdrew from the Paris Agreement on climate change while suppressing climate science, and announced withdrawal from the World Health Organization to distract attention from his irresponsible handling of the COVID-19 pandemic. His administration resigned from the UN Human Rights Council, withheld funds from the United Nations and UN agencies, and undermined international legal prohibitions against forcible acquisition of territory. His State Department convened a “Commission on Unalienable Rights” to weaken respect for international human rights law and then conducted a propaganda campaign for its report—translated into several languages—encouraging other countries to pursue self-serving reinterpretations of their human rights obligations.[20] Trump’s refusal to accept the outcome of the 2020 election, and his incitement to attack Congress in order to prolong his reign, have offered a precedent to authoritarians around the globe.
Responses to the Populist Challenge
Given the threats that the current wave of exclusionary populism poses to human rights within national borders, to human rights outside them, and to the international human rights system itself, how should human rights institutions and rights-respecting governments—now including the United States—respond? The answer needs to be complex, just as the varieties of exclusionary populism are complex, and different actors will have different roles to play.
Ideally, respect for human rights is achieved by a well-intentioned government and domestic civil society interacting within a background of international cooperation and possibly material assistance. The creation of the international human rights system reflects the recognition that the domestic processes benefit from external attention and advice, which may include binding adjudication and sometimes require stronger incentives. When exclusionary populists come to power, they disrupt these domestic processes and produce situations requiring, at a minimum, external attention and advice.
International human rights courts and similar nonjudicial monitoring bodies have been tasked with making impartial evaluations of a state’s compliance with its existing international obligations. Examples include the regional human rights courts and commissions, the global human rights treaty bodies, the International Court of Justice, and the Court of Justice of the European Union, among others—for brevity, I will refer to them all as “monitoring bodies.” These independent expert bodies cannot solve the problem posed by the rise of populism, but they can assist in restraining it. They can help to preserve the rule of law and democratic alternatives to populism; they can aid in addressing underlying social causes of populism; they can identify human rights violations committed by populist governments and seek to provide remedies. They can also change their own behavior that may have contributed to populism and avoid making things worse.
Here, as in other situations, the monitoring bodies depend for success on the cooperation of actors with other powers and roles. Other international bodies, governments of other countries, international nongovernmental organizations (NGOs), and local civil society are potential allies in motivating branches of a national government to change rules and practices.
Rights-respecting governments have multiple reasons to be concerned by the misdeeds of states under populist rule. These include the general interests that states have in the rights of one another’s citizens under modern international law, specific repercussions that exclusionary populism may have for their own nationals and co-ethnics, the spillover effects of populist misrule on neighboring countries, the distortion of international organizations in which they are joint members, and support that populist governments give to populist opposition movements in other states. As a result, states may seek to protect human rights either by acting through multilateral organizations such as the United Nations, the European Union, or the Organization of American States, or they may pursue bilateral responses in their relations with populist states.
This section discusses the methods by which human rights monitoring bodies and rights-respecting states address the problems caused by populism. First, it explains that monitoring bodies (and generally states) should treat exclusionary populism according to its substance rather than its name. Second, it examines how monitoring bodies (and other states) should share with local actors the task of opposing populist abuse of power. Third, it argues that they must deal with the issues of economic inequality that are often contributory causes of populism. Fourth, it focuses on the need for monitoring bodies to learn from populist critiques of their output, in order to improve their own performance, and for states to protect the independence and funding of monitoring bodies. Fifth, it argues that states need to maintain their own ability to adopt negative incentives against populist human rights violations. Finally, the section makes some specific recommendations for the United States, as a state endeavoring both to recover from populism and to support human rights abroad.
Confronting Populism as Such?
Should the international human rights system directly address populism as an operative legal category? That question is relevant both to international monitoring bodies and to rights-respecting states that cooperate with them. In particular, should they determine whether a specific politician, party, or government qualifies as “populist” and attach legal consequences to that characterization? For several reasons, they should not.
One important consideration is the context of monitoring bodies acting within a human rights law framework. “Populism” is not a legal term recognized in international law, and it has no universally accepted definition. The disputes among scholars regarding the proper understanding of the term have been sufficiently illustrated above. Despite agreement on some core examples, social scientists disagree not only on how to conceptualize populism but also on which politicians or parties should count as populist. Monitoring bodies would open themselves to delegitimating charges of bias and political selectivity if they relied on such a concept as a reason for finding violations or condemning states.
Instead, monitoring bodies can focus on the actions of populists without explicitly categorizing them as such, especially in dealing with the policies of populist governments. Abuses such as discriminatory laws, assaults on the independence of the judiciary, suppression of political competition, attacks on the press, police violence, and similar outcomes of populism are already human rights violations that come within the jurisdiction of various human rights bodies.
I am not saying that monitoring bodies should take no notice of the phenomenon of populism or should never mention it. On the contrary, they should be alert to the risks that it creates for human rights and to the special challenges of interacting with populist governments. International bodies should not, however, try to make populism as such an element of a human rights violation. And they should be conscious of the ambiguity of the term.
There should be room for monitoring bodies to keep a wary eye on populist governments, among others, in accordance with their mandates. Some of the hallmarks of populist consolidation of power include the capture of electoral commissions, takeover of judiciaries, banning of NGOs, subordination of media, and removal of term limits. Such techniques, whether deliberately diffused or merely imitated, have been recognized as elements of an authoritarian “playbook” that should be treated as warning signs of an incremental hollowing out of democracy.[21] Monitoring bodies should pay close attention to these practices individually as well as in the aggregate—at least, to the extent that these issues lie within the body’s jurisdiction.[22]
Monitoring bodies could also make an important contribution by clarifying that human rights related to political participation do not require the absence of term limits for elected presidents and that these term limits are an important protection for responsive representative democracy. Populist leaders have sought to extend their power by eliminating rules that prevent their reelection, and sometimes subservient courts have invalidated such rules by finding that they violate human rights—either the rights of the leader or the rights of the voters.[23] Monitoring bodies should explain unequivocally that the human rights argument for indefinite reelection of presidents is specious. The Venice Commission of the Council of Europe has issued a useful report favoring nondiscriminatory term limits for presidents; and the Inter-American Court of Human Rights issued an advisory opinion in 2021 holding not only that term limits are compatible with human rights, but that the American Convention on Human Rights prohibits indefinite reelection.[24] It would be beneficial for the Human Rights Committee at the global level and the African Commission on Human and People’s Rights to add their own analyses.[25]
In stressing these structural issues of civil and political rights, I do not mean that monitoring bodies that also have jurisdiction to address economic and social rights should de-emphasize them. The need to address economic inequality is discussed below.
Rights-respecting states have similar reasons for caution in using the contested concept of populism when they criticize another state, particularly when they act as members of international organizations. Actions taken in the name of the organization may need to display neutrality, and the ambiguity of the word makes it unsuitable for the articulation of generalized policies. Moreover, some regional organizations have special powers to take action in response to structural alterations in their member states that undermine democracy or the rule of law, or depart from the state’s constitutional order.[26] Exclusionary populism may supply a heuristic lens for noticing occasions when such responses may be needed, but the more specific violations provide the prerequisites for action.
However, states in their bilateral relations do not face the same expectations of apolitical behavior and nonselectivity that international monitoring bodies do. Nor are they expected to articulate their foreign policies in neutral and generalizable terms. Thus there may be more room for them to invoke the term “populist” in their dealings with another state, especially when the context ensures that the intended meaning will not be misunderstood.
Counterframing against Populist Politics
Without explicitly condemning populism as such, monitoring bodies and rights-respecting states can contribute to the struggle against it by defending the contrasting ideology of universal human rights and by facilitating open political contestation at the national level, which is where the conflict of ideas must ultimately be won. In the context of discontent with the status quo, populism and human rights provide incompatible perspectives on where the problem lies and how to go about solving it.
Sociologists have emphasized the role of framing in the efforts of social and political movements to persuade citizens to accept their proposals.[27] Populists promote an account in which corrupt elites are to blame for numerous ills, and reassertion of the unconstrained popular will through the leadership of the populists will correct them. Human rights advocates and institutions offer competing accounts whose common theme is that unconstrained government power leads to invasion or neglect of universal rights of individuals.
As is often the case in the system of human rights protection, different roles are appropriate for different actors. Monitoring bodies at the universal or regional level have more generic justifications for the obligations that they enforce. Democratic governance requires rights constraints for all and judicial independence, not the unlimited pursuit of majority will; governments must accept criticism and political competition. Advocates within the national system can particularize their arguments with culturally based references and locally held values that international bodies do not, or should not, rely on. Governments of other states may have both options, depending on their relationship with the state in question.
The effectiveness of external criticism on the domestic audience may depend on how it aligns with local values. For example, in a context where populists hijack an established democratic culture, defending the right to criticize the government against suppression and retaliation may resonate with the voters and awaken them to risks to their own rights as well. National values of freedom of the press, social solidarity, or equal respect may have deeper historical roots in a country than modern treaty articulations.
Most of the work to resist ideational populism, however, must be performed by local actors—human rights defenders, journalists, political opponents, and social movements. A monitoring body can support their efforts, and their right to undertake these efforts, but it should not expect their advocacy to follow international models. Local critics of populist governments will have local discourses that they can employ instead of or alongside the international rights discourse. Local advocates are not bound by norms of neutrality and expertise that monitoring bodies profess; they are free to engage politically and to make openly emotional appeals.[28] Even where international obligations are fully reflected in domestic law, the national versions of universal norms may be more relevant in domestic political debate, especially during periods of populist rule. In the final analysis, successful opposition to populist governments requires locally credible political alternatives. Ideally these will be respectful of universal rights, but rights compliance should be coupled with a particular affirmative vision that attracts voters.
Rights-respecting states face some of the same obstacles as monitoring bodies in reaching the local population of a populist-ruled state in order to help preserve political space for a democratic opposition. The cultural distance between the assisting state and the state with a populist government is one factor that may impair the ability of the former to communicate with local resonance to the residents of the latter. Other historical and political factors in their bilateral relations may make the communication more, or less, successful, and in some situations the advocacy of another country may be considerably more influential than advocacy from global institutions.
Realizing Economic and Social Rights
Being alert to the civil and political rights that exclusionary populism attacks does not mean that either monitoring bodies or rights-respecting states should neglect economic and social rights. Economic hardship and economic inequality have been identified as causal factors in the rise of populism—both left-populism and right-populism—in various countries (though not all). It would be self-defeating to address only the symptoms and not the causes if one has the opportunity to do both. Monitoring bodies that have mandates including economic and social rights should attend to them as part of their response to populism. There are limits, however, to a monitoring body’s ability to promote the transnational sharing of resources that realization of economic and social rights may require.
States have greater breadth of authority to seek new solutions than specialized human rights institutions that implement existing obligations, and rights-respecting states in the Global North have access to the resources that are needed. As the world rebuilds from the COVID-19 pandemic, it will be even more urgent to address issues of economic inequality within and among states that were pressing before its onset and have worsened since. That is not to imply that the issues are easy or that the solutions are obvious. Economic and social rights doctrines provide analyses that can justify and guide some of the efforts states make, but there are other discourses such as sustainable development and conflict prevention that can be applied in combination with them.
Meanwhile, however, rights-respecting states need to resist ongoing efforts at the global level to impose unconditional duties of transnational redistribution that would preclude the use of economic incentives to promote human rights compliance. As will be discussed later, extraterritorial obligations of assistance and coordination in the realization of economic and social rights, and other collective rights attributed to peoples, should not be naively or cynically twisted into an unqualified obligation of one state to subsidize the depredations by a second state’s government against parts of its own population.
Improving and Protecting Human Rights
Monitoring Bodies
A monitoring body should not only pass judgment on the actions and claims of populists, it should also reflect on the arguments populists make, in order to evaluate its own practice. Within a human rights framework, deliberative attention to the criticisms leveled against international institutions may help a monitoring body improve its analysis or strategy. At the same time, rights-respecting states need to protect the monitoring body’s ability to deliberate appropriately and carry out its functions, defending the body against the efforts of populists and authoritarians to incapacitate it procedurally or financially.
Reflecting on Populist Critiques
International human rights institutions have important lessons to learn from the current wave of populism. Populist rhetoric often includes explicit attacks on international monitoring bodies.[29] These bodies are seen as part of the global elite or the “world government” that threatens the nation; their decisions are said to favor the rights of criminals, terrorists, migrants, prisoners, and other enemies over the rights of the people. I do not want to make claims of causation regarding the importance of human rights backlash for the success of populists; multiple factors contribute to their performance in elections and referendums. Nonetheless, there is value in examining the objections, to see what could be learned from them, to reduce the appeal of populists, or simply to improve the performance of the treaty regimes.
For example, particular claims that human rights bodies overprotect unpopular groups may merely be hateful rhetoric, but examination sometimes reveals elements of valid concern within them. Monitoring bodies should not disregard such objections to their rulings without reflection.
Members of monitoring bodies are, in fact, mostly foreign experts. Transnational monitoring enlists states mutually in protecting one another’s populations, shielding current minorities against present harm and members of current majorities against future harm. Ideally states and local human rights defenders would help explain and vindicate the system, but the arrangement is susceptible to nationalist and populist attacks. This reality raises the burden of justification on the experts to show that they are not merely external elites abusing power.
The fundamental principle of international human rights law is that every human being has rights, and populist movements that seek to deny that principle are essentially rejecting the system. Not all populist critiques, however, depend on denying a right altogether. Most human rights are subject to justified limitation for the purpose of directly protecting the rights of others and also for certain more general purposes that are indirectly related to the rights of others (such as “national security”).[30] Both the rights and the limitations are important.
A common populist objection to the human rights system maintains that human rights bodies give too much weight to the rights of criminals. A few human rights are and should be absolute, such as the prohibition of torture. Other acts of law enforcement may involve rights that are protected in qualified terms, or explicitly subject to limitation. In determining violations of those rights, monitoring bodies should make clear that they are not disproportionately restricting the government’s response to criminal activity, and in particular that they recognize the need to protect the rights of others. As a matter of substance, this recognition should inform the reasoning that leads to a finding of violation. As a matter of exposition—and especially when faced with this type of critique—there would be value in making explicit for readers the body’s attention to the rights of nonparticipating victims.
What happens if monitoring bodies conclude that some populist objections to particular decisions or doctrines may have some accuracy, and modify them? Perhaps less than we might hope. Once populist attacks have been unleashed, their rhetoric often operates at a level that can gloss over changes in factual reality. Furthermore, once exclusionary populists come to power, they are likely to acquire new reasons for quarreling with a monitoring body as they seek to entrench their power. Nonetheless, there may be lessons in particular objections that would help the monitoring bodies avoid similar errors in the future, and not supply new fuel to populist fire.
Protecting the Funding and Independence of Monitoring Bodies
Populist governments have repeatedly sought to reduce the impact of monitoring bodies by cutting their funding and limiting their independence, sometimes acting in partnership with fully authoritarian states that are also members of the bodies’ sponsoring international organization (such as the UN or the OAS). Even without such deliberate punitive efforts, monitoring bodies face budgetary reductions when states shift their spending priorities or in times of austerity. The continuing economic effects of the COVID-19 pandemic may deprive the system of resources at a time when governments most need to be monitored.
Rights-respecting states need to protect the ability of the system to function, and to resist efforts to undermine monitoring bodies, especially those bodies with jurisdiction to address populist governments’ characteristic abuses. Unfortunately there is a kind of egalitarian culture within the UN that disfavors judgments of quality among the various human rights mechanisms, and that facilitates dispersion of resources to less consequential projects.
If necessary, a human rights body can survive lean years when its budget shrinks, so long as the cuts are not too deep and it retains control of its spending choices within the lower amount. The more serious threats involve interference with the body’s independence and direct restraint of its functions. These have included efforts to give political bodies disciplinary powers over members of monitoring bodies, to prohibit follow-up procedures or the issuance of general comments, and to limit the information that monitoring bodies can receive.[31] Proposals of that kind portend long-term impairment of the institution’s mandate, and rights-respecting states should vigorously oppose them.
Sanctions and Conditional Assistance
States are in a position to do more than criticize populist governments that violate human rights; they can also impose material consequences on them. There are numerous forms of cooperation and assistance that rights-respecting states are free to withhold.[32] The basis of the withholding should be the actual violations, and not the labeling as “populist” per se. A state may have the confidence to make the judgment for itself, or it may avail itself of the findings of international courts and other monitoring bodies. These findings possess an authority and objectivity that can be combined with the political power and financial resources of states to press for change.[33]
Withholding assistance may serve several purposes. It creates countervailing incentives for a government that sees advantage in violating rights; it signals to the other government and its population the seriousness of the violations; and it avoids complicity in the violations or the responsibility for maintaining in power the government that commits them.
Rights-respecting states need to preserve their authority to pursue these goals, in the face of various initiatives aiming to redefine their international obligations in a manner that would unduly restrict or outlaw these sanctions. Authoritarian states such as Cuba, China, and Russia, with some populist allies, have led efforts within the United Nations to proscribe human rights–based sanctions that are not approved by the Security Council (and thereby subject to veto). Various arguments of a state-centered or human rights–based character have been invoked to this end, including the sovereign equality of states, the impermissibility of “unilateral coercive measures,” a collective right of peoples to solidarity, and an elaboration of the right to development.[34] Some of these asserted norms are ambiguously defined, making the wrongfulness of measures dependent on an expansive definition of the transnational duties they are said to contravene; others deny the legitimacy of one state’s judging the actions of another.
Rights-respecting states need to continue opposing vague and over-broad definitions of “coercive measures” that would eliminate human rights sanctions, and object to the inclusion of a prohibition of such measures in declarations and draft treaties. The human rights of those persons affected by sanctions do need to be taken into account in the operation of sanctions, but not in the exaggerated way favored by advocates of a ban.
Moreover, sanctions arise not only bilaterally but in the context of a prior agreement that authorizes the use of economic pressure to enforce compliance with human rights obligations undertaken within a regional organization. Such preconsented measures, accepted by a state for the sake of its population, should not be viewed as “coercive.”
In the case of the European Union, it is disputed whether the organization needs more tools or needs more willingness to use the tools it has, to deal with open defiance of its values by Hungary and Poland.[35] The EU should have and should use the power both to condemn and to impose material consequences for systemic undermining of democracy. Although some decisional procedures give deviant states or groups of deviant states the opportunity to veto decisions, other actions can be taken by majorities. Rights-respecting EU governments should recognize how the deliberately spread contagion of right-wing populism in the EU threatens their own interests, and should resist subsidizing it.
Moreover, Europe has a particularly thick array of mutually reinforcing human rights institutions within the EU and the larger Council of Europe that diagnoses the violations. The EU’s Court of Justice and the European Court of Human Rights, which can make decisions by majority, have provided leadership in judgments that are legally binding.[36] Such decisions require political support for their effective implementation, but their legitimacy and authority can reassure those who are inclined to act, and strengthen the motivation of others. The EU Court of Justice has given rule-of-law criteria in EU law greater traction against backsliding by developing a nonregression principle that invokes the state’s own prior level of democratization as part of the standard for showing a violation. That criterion not only adds specificity but should assist in explaining the EU’s reaction for the benefit of the state’s own population, which must ultimately be persuaded to turn against the populists.
The United States as a Recovering Populist State
The United States now has a rights-respecting government at the federal level, which narrowly defeated a right-populist incumbent, and which seeks to restore and secure its liberal democratic character. Populism retains a hold on various state governments, making that task more difficult. The current administration is also seeking to reengage more cooperatively with the international system, including the human rights system. The considerations discussed above have relevance for the United States, both as a state that has suffered from populism and as a state that is trying once more to be a key supporter of the human rights regime.
The Trump years should not be contrasted with an imaginary golden age in which human rights norms provided the sole factor in U.S. foreign policy, and one should not expect such a policy to follow now. Moreover, the United States has largely emphasized civil and political rights rather than the full range embraced by the international human rights system, including economic and social rights. Nonetheless, Trump’s indifference to human rights, admiration for autocrats, and encouragement of right-wing populism in other countries represented a major departure. His administration caused significant damage to the international perception of the United States and to conditions abroad that will be difficult to repair. The danger that Trumpism or its equivalent might return to power is itself an obstacle to U.S. credibility.
At home, the United States needs to restore democratic pluralism and a sense of common purpose. The atmosphere of polarization preceded Trump, but he exacerbated it, and he and his allies and enablers are continuing to do so. The public health and economic crises resulting from COVID-19 provide both challenges and opportunities for reestablishing shared goals.
The economic insecurity that contributed to Trump’s rise clearly needs to be addressed, for the good of both his supporters and those he disdained. This project relates to the international concept of economic and social rights, but that global discourse is unlikely to prove useful in the United States and would for many in the population be counterproductive. Framing the issues in terms of the country’s own democratic and egalitarian values will have wider appeal to a public accustomed to American exceptionalism.[37] The government should also seek as far as possible to gain the cooperation of diverse religious voices, whose compassionate messages support its public goals—this is doubly important, both to reach their communities and to counteract the impression that right-wing populism is the proper home of religion.[38] Meanwhile, the public needs not only to benefit but to be shown that it is benefiting, in the face of determined efforts of populists to mislead.
Intensified threats to the U.S. electoral system impend as Trump and his supporters reiterate their baseless objections to his defeat, and allies in state legislatures adopt measures to suppress voting and to rewrite election outcomes.[39] Creative countermeasures will be needed if the Senate minority continues to obstruct reform.
The United States badly needs to vindicate truthfulness after four years of continuous fraud at the highest levels. This requires both candor going forward (which will not always be easy) and greater disclosure of the actions of the prior regime and their consequences. The public needs to be shown the level of self-enrichment, corruption, falsification, and conscious illegality that the Trump administration perpetrated.[40] Extreme cases may justify criminal prosecution or civil sanctions, but reputational accountability should be provided more broadly. The Trump administration terminated or suppressed some internal investigations and redacted the reports of others, while intimidating whistleblowers.[41] Disclosure of primary internal documentation may be as important as the conclusions of independent investigations, which are likely to be dismissed by shameless loyalists as partisan “witch hunts.” In some instances there may be objectively persuasive reasons of national security or related concerns for limiting disclosure, but otherwise the self-protective claims of abusive former officials should be outweighed by the public interest in setting the record straight. Regrettably, the needed process of publication may become entangled with byzantine and unsettled doctrines of executive privilege.[42]
Turning to foreign relations, the United States has much to contribute as a rights-respecting state. The Biden administration has already begun to take some of the appropriate steps. It is reengaging with neglected allies and international arrangements, including the World Health Organization and the Paris Agreement on climate change, has rejoined the Human Rights Council, and has ceased to praise autocracy. Still, it is important that these course corrections continue. Secretary of State Antony Blinken has repudiated the notorious report of the Trump administration’s “Commission on Unalienable Rights,” which sought to dilute U.S. human rights policy and discredit international monitoring bodies.[43] The State Department will need to make further efforts to counteract the encouragement that the wide official dissemination of the report, and private efforts to continue publicizing it, give to other populist governments.
Meanwhile, the Trump administration’s mutually supportive relations with right-populist governments need to be rethought. A prime example was the Netanyahu government in Israel, which traded political favors with Trump. Among other actions, Trump proclaimed U.S. recognition of Israeli sovereignty over Syria’s Golan Heights, in defiance of modern international law’s prohibition of acquisition of territory by conquest, and in December 2020 he agreed to recognize Morocco’s sovereignty over the former Spanish colony of Western Sahara in exchange for Morocco’s recognizing Israel.[44] These disruptive moves threaten to destabilize the basic ground rules of armed conflict and to legitimate Russia’s expansion across its borders by force. In Latin America, the United States needs to exert moderating influence, to the extent it can, on both left-populist and right-populist governments.
The Trump administration also established a so-called International Religious Freedom (or Belief) Alliance, enlisting primarily right-wing populist governments such as Hungary, Poland, and Brazil. The Alliance enabled religiously intolerant governments to claim attachment to religious liberty by protesting persecution of their own coreligionists, and to argue for the supremacy of religious freedom over the human rights of women and sexual minorities.[45] The new administration has continued in the Alliance, providing its Secretariat in the State Department’s Office of International Religious Freedom and leading one of its working groups (on threats posed by technology).[46] The United States could resign from the Alliance, but it should consider expanding and reforming it. Rights-respecting countries reluctant to join a project of Mike Pompeo might be willing to contribute to a genuinely evenhanded approach to religious freedom that is recalibrated to be consistent with the human rights of all. Actual religious persecution is definitely a serious problem in the world, and a diverse group of governments willing to help enforce existing international standards could decrease it—particularly if they are sufficiently diverse and committed to examining their own failings as well as those of others. A reconfigured alliance could support the work of existing human rights mechanisms rather than attempting to undermine or replace them. Domestically, the effort might also draw some religious constituencies back toward shared values and away from populist divisiveness.
The problem of participation in the Alliance illustrates a disadvantage of convening states as admitted members in a standing organization to address the challenges of populism. Membership becomes a credential that may be undeserved from the outset and that is politically very difficult to withdraw, even after changes in a member’s government. The same concerns apply to the idea of anointing a group of 10 democracies—the“D-10”—to defend democracy, rather than convening ad hoc meetings of countries based on their current circumstances.[47] One need only consider the real possibility of France under a future President Marine Le Pen. Whatever merit the idea might have in opposition to full-fledged autocracy, it is unsuitable at this time as a strategy against exclusionary populism.
Conclusion
Exclusionary populism threatens human rights, and rights-respecting states have both principled and self-protective reasons for responding to its spread. Autocracy poses even greater dangers, but the protection of pluralistic democracy depends on constraints that populists also disdain. Populism arises in different contexts and takes different forms, and so strategies for opposing it must be sensitive to context.
International human rights monitoring bodies should treat populism by its substance, condemning the characteristic violations that result, rather than considering “populism” itself as a violation. The international bodies should protect local opponents of populism, who add nationally resonant advocacy to the more distant universal discourse. These bodies should address the causes as well as the consequences of populism, especially the neglect of economic and social rights. Monitoring bodies should not merely dismiss populist critiques of their decisions but should examine the feedback for possible lessons about their own conclusions and explanations.
Rights-respecting states, now including the United States, should generally focus on the violations, reinforcing the efforts of monitoring bodies and the rights of local opponents. That also requires states to protect the independence and fiscal capacity of monitoring bodies. The United States needs to stabilize its own democracy to counter exclusionary populism abroad. Rights-respecting states must address the problems of economic inequality that often contribute to populist electoral success. At the same time, they need to preserve their own authority to impose appropriate sanctions on states that violate human rights; rights-respecting EU states should muster the will to sanction their own members. The United States should reckon with the abuses of the Trump years and try to enlist religious allies in projects consistent with universal human rights.
Notes
1. Cas Mudde, “Populism: An Ideational Approach,” in The Oxford Handbook of Populism, edited by Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa Espejo, and Pierre Ostiguy (Oxford University Press, 2017), pp. 29–47.
2. Jan-Werner Müller, What Is Populism? (University of Pennsylvania Press, 2016), p. 23.
3. This section draws on Gerald L. Neuman, “Populist Threats to the International Human Rights System,” in Human Rights in a Time of Populism: Challenges and Responses, edited by Gerald L. Neuman (Cambridge University Press, 2020), pp. 1–19.
4. Kurt Weyland, “Populism: A Political-Strategic Approach,” in Oxford Handbook, edited by Rovira Kaltwasser et al., pp. 48–72; Steven Levitsky and James Loxton, “Populism and Competitive Authoritarianism in the Andes,” Democratization 20, 1 (2013), p. 110, https://doi.org/10.1080/13510347.2013.738864.
5. See Ernesto Laclau, On Populist Reason (London: Verso, 2005).
6. Professors Mudde and Rovira Kaltwasser, proponents of the ideational approach, have used the term “exclusionary populism” in a narrower sense, contrasting contemporary examples in European welfare states with more “inclusionary” examples of ideational populism in Latin America that offer empowerment to long-disenfranchised economic classes. All of these, however, are ideational populists, inclusive toward some and exclusionary toward others, and thus “exclusionary” in the wider sense I am using here.
7. See Kirk A. Hawkins, Madeleine Read, and Teun Pauwels, “Populism and Its Causes,” in Oxford Handbook, edited by Rovira Kaltwasser et al., pp. 267–86.
8. Ibid., p. 269; Kenneth M. Roberts, “Neoliberalism and the Transformation of Populism in Latin America,” World Politics 48, 1 (1995), p. 82, www.jstor.org/stable/25053953.
9. For example, Kirk A. Hawkins, “Responding to Radical Populism: Chavismo in Venezuela,” Democratization 23, 2 (2016), p. 242, https://doi.org/10.1080/13510347.2015.1058783; Hanspeter Kriesi, “The Populist Challenge,” West European Politics 37, 2 (2014), p. 361, https://doi.org/10.1080/01402382.2014.887879.
10. Pippa Norris and Ronald Inglehart, Cultural Backlash: Trump, Brexit and the Rise of Authoritarian Populism (Cambridge University Press, 2019).
11. See Richard Javad Heydarian, “Penal Populism in Emerging Markets: Human Rights and Democracy in the Age of Strongmen,” in Human Rights in a Time of Populism, edited by Neuman, pp. 130–63.
12. The examples will assume that the countries or leaders mentioned are properly described as populist—I am not claiming that the facts mentioned suffice to demonstrate exclusionary populism.
13. See Asa K. Cusak, Venezuela, ALBA, and the Limits of Postneoliberal Regionalism in Latin America and the Caribbean (New York: Palgrave Macmillan, 2019); compare Alexander Cooley’s chapter 4 in this volume, which discusses the creation of authoritarian international organizations by China and Russia.
14. See Jason Gutierrez, “Amid Inquiry of Duterte, Philippines Exits International Criminal Court,” New York Times, March 17, 2019, www.nytimes.com/2019/03/17/world/asia/philippines-international-criminal-court.html; Antonio F. Perez, “Democracy Clauses in the Americas: The Challenge of Venezuela’s Withdrawal from the OAS,” American University International Law Review 33 (2017), p. 391, https://scholarship.law.edu/scholar/985/. The effectiveness of Maduro’s withdrawal from the OAS is disputed.
15. Rosa Balfour, Corina Stratulat, Juliane Schmidt, et al., “Europe’s Troublemakers: The Populist Challenge to Foreign Policy,” European Policy Center, 2016, pp. 35–36, www.epc.eu/documents/uploads/pub_6377_europe_s_troublemakers.pdf?doc_id=1714.
16. See Mónica Pinto, “The Crisis of the Inter-American System,” American Society of International Law Proceedings 107 (2013), p. 127, https://doi.org/10.5305/procannmeetasil.107.0127.
17. See Christen Broecker and Michael O’Flaherty, “The Outcome of the General Assembly’s Treaty Body Strengthening Process: An Important Milestone on a Longer Journey,” 2014, www.universal-rights.org/urg-policy-reports/the-outcome-of-the-general-assemblys-treaty-body-strengthening-process-an-important-milestone-on-a-longer-journey/; see also Alexander Cooley’s chapter 4, on efforts by Russia and China to dilute UN oversight.
18. See Benjamin Martill and Monika Sus, “Known Unknowns: EU Foreign, Security and Defence Policy after Brexit,” Dahrendorf Forum, 2018, www.dahrendorf-forum.eu/publications/known-unknowns/; Anna Júlia Donáth, “Absolutely Corrupted: The Rise of an Illiberal System and the Future of Hungarian Democracy,” Brown Journal of World Affairs 27, 2, p. 1, https://bjwa.brown.edu/27-2/absolutely-corrupted-the-rise-of-an-illiberal-system-and-the-future-of-hungarian-democracy/.
19. Norris and Inglehart, Cultural Backlash, p. 76.
20. See also chapter 7 by Melani McAlister in this volume, discussing the origin of the Commission on Unalienable Rights and criticisms of its report.
21. See César Rodríguez-Garavito and Krizna Gomez, “Responding to the Populist Challenge: A New Playbook for the Human Rights Field,” in Rising to the Populist Challenge: A New Playbook for Human Rights Actors, edited by César Rodríguez-Garavito and Krizna Gomez (Bogotá: Dejusticia, 2018), pp. 11–53; Christopher Sabatini and Ryan Berg, “Autocrats Have a Playbook—Now Democrats Need One Too,” Foreign Policy, February 10, 2021, https://foreignpolicy.com/2021/02/10/autocrats-have-a-playbook-now-democrats-need-one-too/; Kurt Weyland, “Autocratic Diffusion and Cooperation: The Impact of Interests vs. Ideology,” Democratization 24, 7, (2017), p. 1235, https://doi.org/10.1080/13510347.2017.1307823.
22. For example, the regional human rights courts and the Human Rights Committee have general authority to examine civil and political rights such as voting rights, free expression and association, and judicial independence; monitoring bodies focused on economic and social rights or on specially protected groups such as children have more limited opportunities to address these issues.
23. See Tom Ginsburg, James Melton, and Zachary Elkins, “On the Evasion of Executive Term Limits,” William and Mary Law Review 52, 6 (2011), p. 1807, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1683594; and David Landau, “Presidential Term Limits in Latin America: A Critical Analysis of the Migration of the Unconstitutional Constitutional Amendment Doctrine,” Law and Ethics of Human Rights 12 (2018), p. 225, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3053521.
24. European Commission for Democracy Through Law, “Report on Term-Limits: Part I—Presidents,” CDL-AD(2018)010 (2018), www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2018)010-e; Advisory Opinion OC-28/21, Indefinite Presidential Re-Election in Presidential Systems in the Context of the Inter-American System of Human Rights (Interpretation and scope of Articles 1, 23, 24, and 32 of the American Convention on Human Rights, XX of the American Declaration of the Rights and Duties of Man, 3(d) of the Charter of the Organization of American States and of the Inter-American Democratic Charter), 28 Inter-American Court of Human Rights (ser. A) (2021) (with two dissenting opinions).
25. Admittedly, term limits for a particular office would not prevent populist leaders from guiding their governing parties from alternative posts or unofficial positions, as Jarosław Kaczyński currently does in Poland, but they do at least restrict de jure concentration of power over long periods of time and create opportunities for rivalries within a populist party to weaken its threat to competitive democracy.
26. For example, the Inter-American Democratic Charter, Articles 17–22 (2001) (addressing unconstitutional interruption of the democratic order of a member state); and the African Charter on Democracy, Elections and Governance, Articles 23–26 (providing for sanctions against listed illegal means of accessing or maintaining power).
27. Robert D. Benford and David A. Snow, “Framing Processes and Social Movements: An Overview and Assessment,” Annual Review of Sociology 26 (2000), p. 615, https://doi.org/10.1146/annurev.soc.26.1.611.
28. See Rodríguez-Garavito and Gomez, “Responding to the Populist Challenge,” p. 39.
29. See, for example, Ángel R. Oquendo, “The Politicization of Human Rights: Within the Inter-American System and Beyond,” New York University Journal of International Law and Politics 50, 1 (2017), p. 1, https://nyujilp.org/wp-content/uploads/2018/02/Oquendo-PDF.pdf.
30. For example, the International Covenant on Civil and Political Rights, Article 19(3)(b) (allowing restrictions on freedom of expression that are necessary for the protection of national security); and the American Convention on Human Rights, Article 13(2)(b) (same).
31. See Broecker and O’Flaherty, “The Outcome of the Treaty Body Strengthening Process”; see also Pinto, “Crisis of the Inter-American System.”
32. I say “free to withhold” because there may be treaty obligations to confer certain benefits, subject to certain conditions, and there are too many variations to address them all here.
33. Moreover, within international organizations, the fact that an international court can decide by majority may make these findings a useful supplement when a political body is stymied by a veto rule.
34. See, for example, Alexandra Hofer, “The Developed/Developing Divide on Unilateral Coercive Measures: Legitimate Enforcement or Illegitimate Intervention?,” Chinese Journal of International Law 16, 2 (2017), p. 175, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3581655; Rosa Freedman and Jacob Mchangama, “Expanding or Diluting Human Rights? The Proliferation of United Nations Special Procedure Mandates,” Human Rights Quarterly 38, 1 (2016), pp. 164, 189–93, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775622; Draft Convention on the Right to Development, Article 14, UN Doc. A/HRC/WG.2/21/2 (2020).
35. Kim Lane Scheppele and R. Daniel Kelemen, “Defending Democracy in EU Member States: Beyond Article 7 TEU,” in EU Law in Populist Times: Crises and Prospects, edited by Francesca Bignami (2020), pp. 413–56; Justyna Łacny, “The Rule of Law Conditionality under Regulation No 2092/2020—Is It All about the Money?,” Hague Journal on the Rule of Law 13 (2021), p. 79, https://link.springer.com/article/10.1007/s40803-021-00154-6.
36. See, for example, Repubblika v. Il-Prim Ministru, Case C-896/19 (CJEU 2021) [Grand Chamber]; Xero Flor w Polsce v. Poland, App. no. 4907/18, ECHR (2021).
37. Nonetheless, international human rights framings may provide encouragement to citizens whose claims for justice are not adequately met by current U.S. constitutional doctrines. I am grateful to Gay McDougall for emphasizing this point.
38. See also chapter 7 by Melani McAlister.
39. See Jane Mayer, “The Big Money behind the Big Lie,” New Yorker, August 9, 2021, www.newyorker.com/magazine/2021/08/09/the-big-money-behind-the-big-lie.
40. See, for example, Sam Berger, “How a Future President Can Hold the Trump Administration Accountable,” Center for American Progress, August 6, 2020, https://cdn.americanprogress.org/content/uploads/2020/08/05105154/TrumpAccountability-brief.pdf?_ga=2.116672966.134675517.1617069745-695515846.1617069745.
41. Ibid.
42. See Mark J. Rozell and Michel A. Sollenberger, Executive Privilege: Presidential Power, Secrecy, and Accountability, 4th ed. (University Press of Kansas, 2020); Jonathan David Shaub, “The Executive’s Privilege,” Duke Law Journal 70 (2020), p. 1, https://scholarship.law.duke.edu/dlj/vol70/iss1/1/; see Nixon v. Administrator of General Services, 433 U.S. 425, 448–49 (1977) (recognizing qualified interest of a former president in limiting public access to confidential communications).
43. See U.S. Department of State, “Secretary Antony J. Blinken on Release of the 2020 Country Reports on Human Rights Practices,” March 30, 2021, www.state.gov/secretary-antony-j-blinken-on-release-of-the-2020-country-reports-on-human-rights-practices/.
44. On the Golan Heights, see Jean Galbraith, “Contemporary Practice of the United States Relating to International Law—United States Recognizes Israeli Sovereignty over the Golan Heights,” American Journal of International Law 113, 3 (2019), p. 613, https://doi.org/10.1017/ajil.2019.35; Oona Hathaway and Scott Shapiro, “Trump’s Golan Policy and Its Threat to the Post-War International Legal Order,” Just Security (blog), May 16, 2019, www.justsecurity.org/64141/trumps-golan-policy-and-its-threat-to-the-post-war-international-legal-order/; on Morocco, see Kristen E. Eichensehr, “United States Recognizes Morocco’s Sovereignty over Western Sahara,” American Journal of International Law 115, 2 (2021), p. 318, https://doi.org/10.1017/ajil.2021.11.
45. See Jeffrey Haynes, “Trump and the Politics of International Religious Freedom,” Religions 11, 8 (2020), p. 385, www.mdpi.com/2077-1444/11/8/385; see also chapter 7 by Melani McAlister, which discusses the origins and focus of the Alliance.
46. See U.S. Department of State, International Religious Freedom or Belief Alliance, 2021, www.state.gov/international-religious-freedom-or-belief-alliance/. In 2021, President Biden chose Rashad Hussain to head that Office, as part of the effort “to build an Administration that looks like America and reflects people of all faiths.” White House, “President Biden Announces Intent to Nominate and Appoint Leaders to Serve in Key Religious Affairs Roles,” July 30, 2021, www.whitehouse.gov/briefing-room/statements-releases/2021/07/30/president-biden-announces-intent-to-nominate-and-appoint-leaders-to-serve-in-key-religious-affairs-roles/. Brief notes about monthly meetings of the Alliance can be found on the web page of the Danish Office of the Special Representative for Freedom of Religion or Belief; see Ministry of Foreign Affairs of Denmark, Activities, 2021, https://um.dk/en/foreign-policy/office-of-the-special-representative-for-freedom-of-religions-or-belief/selected-activities-of-the-office-of-the-special-representative-for-freedom-of-religion-or-belief/.
47. See, for example, Michel Duclos, “Do We Need a Global Alliance of Democracies?,” Institut Montaigne (Blog), January 7, 2021, www.institutmontaigne.org/en/blog/do-we-need-global-alliance-democracies.
