US President Donald Trump's ongoing attacks on the Diversity Equity and Inclusion (DEI) agenda have hit the headlines but analysis so far has ignored the decades of international law underpinning these obligations. The influence of the United States has been over-stated with regard to its threat to DEI globally but also with regard to its genesis.
We should be reassured by the longstanding, global commitments to DEI in international human rights treaties that have been widely adopted by the 193 member states of the United Nations.
Let’s remember, the groundwork for protection of human rights and equality was laid with the establishment of the UN in 1945 as a direct response to the atrocities of the world wars. The opening paragraph of the founding document, the UN Charter, declared “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. The protection of human rights, respect for human dignity, and principles of equality were identified as fundamental to international law and to the maintenance of peace and security.
The recognition of what we now term “diversity, equity and inclusion” continued to gain momentum with the adoption of the Universal Declaration on Human Rights in 1948. This was followed by a global commitment to tackling racial discrimination in 1965 when the International Convention on the Elimination of All Forms of Racial Discrimination was adopted by the UN, with member states committing to condemning racial discrimination and eliminating it through laws and other means. The United States, Australia and 180 other countries have signed up to this Convention.
Although the US government withdrew from the UN Human Rights Council during Trump’s last term in office, the United States has never declined to participate in the Universal Periodic Review process.
In 1966, two more treaties were introduced, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. Both of these guarantee a range of human rights and specify that “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” cannot be used to exclude people from accessing their rights. Again, these treaties are widely accepted globally with over 170 signatory countries.
With the awareness of risks to particular groups growing, further UN treaties were adopted focusing on women’s rights (in 1979), children’s rights (in 1989), and the rights of people with disabilities (in 2006). These strengthened the global momentum to protect and promote the rights of minorities and vulnerable groups.
It is these international treaties that place obligations on countries to enact domestic laws and policies to protect rights and prevent discrimination, leading to thousands of laws, policies, and human rights and equality bodies all around the world. Although there is no dedicated LGBTQIA+ UN treaty, gay rights have been recognised under many of the other treaties. One example was the high-profile case of Toonen vs Australia in 1994 where the UN found that the criminalisation of gay sex in Tasmania had breached the covenant on civil and political rights. Former UN High Commissioner for Human Rights, Navi Pillay, explained that this result reverberated around the world with wide-ranging implications for the human rights of millions of people. More recently, in 2016, the UN established the role of Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.
UN member states have their performance reviewed periodically with regard to each treaty they have signed, but also, since 2008 they are reviewed on all human rights commitments in a high-profile political hearing before the UN Human Rights Council every four and a half years – the Universal Periodic Review. All UN member states participate in this political review which is seen as quite successful as a monitoring mechanism, with many recommendations resulting in action within the country under review.
The last review of the United States in 2020 included criticism of its record on the rights of women and children, concerns over racial discrimination and treatment of migrants, and calls to end the death penalty. It is likely that the Trump administration will face harsh criticism at their next review by the UN later this year. Although the US government withdrew from the UN Human Rights Council during Trump’s last term in office, the United States has never declined to participate in the Universal Periodic Review process.
We can’t deny that Trump’s attack on the DEI agenda is concerning – including its reach overseas in terms of international development aid. It has also impacted on Australians travelling to the US and to Australian researchers funded by the United States. However, we need to retain some optimism and remember that the global DEI agenda has been established, expanded, consolidated and widely accepted for 80 years. It won’t simply be dismantled overnight.
