Appropriating rights: Who rewrites rights and how?
Instead of blunt rejection, the global new Right is pursuing a project of so-called rights renewal.
Credit: Alejandro Ospina
Authoritarian governments and conservative forces might be expected to outright reject international human rights. Core human rights values and protected rights are often at odds with conservative goals, particularly when it comes to socioeconomic, reproductive, and LGBTQI+ rights. However, instead of blunt rejection, the global new Right is pursuing a project of so-called rights renewal. Claiming to reinvigorate rights, such actors instead often redefine and appropriate the very sources, content, and interpretive rules of rights, rolling back hard-fought protections to rewrite what and who human rights protect. How does this strategy of appropriating human rights for conservative ends work and how can it be resisted?
This conservative “renewal” project comes amid the growing protective reach of rights, with their definition and enforcement aided by post–World War II treaties and supervisory machinery. This deepening protection has not come without controversy; indeed, rights have been critiqued from both the Right and the Left. What is striking about the current conservative approach(es) to human rights, however, is the outward, vocal embrace of rights while insidiously reworking them from within. We call this rights doublespeak, as well as anachronistic, because it refers back to antiquated sources of rights to deny their modern breadth and create false rights hierarchies.
In order to expose the mechanics of appropriation—as well as sites and tactics of resistance—in a recent article we examine the Trump Administration’s Commission on Unalienable Rights. Set up in 2019 to do a “profound reexamination” of rights, the 11-person body instead sought to rewrite the human rights canon from within to end the recognition of some rights, create rights hierarchies, and sideline the instruments and interpretive practices of the modern global rights ecosystem. It was subsequently disavowed by the Biden Administration, but its work has been taken up by others and the appropriation of rights in the United States and globally continues.
Indeed, four appropriation moves and counter-moves can be usefully distilled.
First, appropriation begins with messenger and motive legitimacy. For the new global Right, a common argument for valid motive is that the redefinition effort is needed to respond to a rights “crisis” through rights renewal. Indeed, the commission ultimately called for the US government to pursue rights with “renewed vigor.” As such, national sovereigntist claims—for example, the importance of US leadership on rights—are also used to legitimate its purpose. Accordingly, civil society contestation involved coalition-building, framing, and media agenda-setting, as well as litigation, to focus attention on the body’s likely harmful impacts and its conservative, partial membership.
Second, appropriation requires process legitimacy. Effective appropriation relies on an ostensibly credible process for reexamining the sources and meaning of rights. To bolster the legitimacy of the outcomes of the commission, its supporters presented the process leading to those findings, including its public hearings, as serious and fair: transparent, deliberative, and inclusive of all viewpoints. Through advocacy strategies, including monitoring, shaming, media, and litigation, civil society was able to challenge the commission’s procedural flaws, showing that it was not a credible authority for defining rights. Instead, the commission’s hearings showcased biases in views about rights and views that departed from widely accepted understandings of rights.
Third, appropriation involves an appeal to substantive legitimacy around where rights come from and their content. A key tool in the appropriation toolbox is to advance a narrow understanding of the legitimate sources and interpretative rules for human rights law, one that sidelines the instruments, interpretive rules, and content of the modern human rights system. For example, the commission elevated some rights—property rights and religious freedom—over others and inaccurately framed reproductive and sexual orientation rights as “controversies” rather than protected rights. It created unduly restrictive criteria for recognizing “new” rights and diminished the role of binding treaties and the work of expert bodies in favor of looking back to the Universal Declaration of Human Rights (UDHR) and US founding documents. Debunking the substantive appropriation of rights required civil society to challenge the very normative bases of the commission’s takes on rights.
Fourth, appropriation is spread and has impact through norm diffusion. At the domestic level, government agencies may take up the new definition of rights in their practices and policies. Appropriation in the long term also requires influencing other governments and international forums. The Trump Commission’s report was published in seven languages, its commissioners traveled to promote it, its views were fed to other governments and into international documents, and conservative networks acted as amplifiers. Preventing norm diffusion requires civil society advocacy in all of these forums. In the case of the commission, US NGOs supported other groups to counteract the commission’s ripple effects, sought boycotts of commission work, and used mechanisms like the Universal Periodic Review as “boomerang” strategies that engaged external stakeholders to undermine the commission’s impact.
Rights and their institutions for protection are not without flaws. Yet conservative and other stakeholders’ appropriation of rights undermines decades of developments to secure the universality, interdependence, and indivisibility of human rights. While claiming dedication to the renewal of rights, and under the guise of fixing a broken system, the global new Right’s appropriation of rights strikes at core human rights values. By making apparent the mechanisms of appropriation, as well as the options for pushing back, rights defenders will be able to better recognize and resist future conservative moves to appropriate rights.
Jayne Huckerby is a clinical professor of law and director of the International Human Rights Clinic at Duke University School of Law.
Sarah Knuckey is a clinical professor of law and director of the Human Rights Institute and Smith Family Human Rights Clinic at Columbia Law School.