On September 15, 2019, Dr. Peter Berkowitz, the Executive Director of the State Department’s Commission on Unalienable Rights, published responses to criticisms that have been leveled against the Commission.[1] Here are those responses followed by this blogger’s reactions to same.
Dr. Berkowtiz’s Responses to Criticisms
“The announcement of the . . . [Commission’s} existence and mandate immediately triggered a barrage of skepticism, indignation, and anger. The misunderstandings that the criticisms embody underscore the urgency of the commission’s work.”
Characterization of the Criticisms
“The very idea of human rights has come under fire from the left and the right for its supposedly sham universality. Hard-core progressives contend that human rights are nothing more than a vehicle for advancing Western imperialism and colonialism. Single-minded conservatives maintain that the essential function of human rights is to erode national sovereignty and promulgate progressive political goals around the world.”
“More measured and compelling objections focus on the excesses to which the human rights project has been exposed. The proliferation of rights claims has obscured the distinction between fundamental rights that are universally applicable and partisan preferences that are properly left to diplomacy and political give-and-take. International institutions charged with monitoring and safeguarding human rights sometimes include in their membership countries that flagrantly violate human rights and which wield international law as a weapon to undermine them. The growth of international institutions, courts, and NGOs dedicated to human rights has created a cadre of bureaucrats, judges, scholars, and activists. Many of these experts and advocates are dedicated to the cause of human rights and serve with distinction, but all face the temptation — typical of any professional community — of succumbing to special interests and self-serving agendas. And an overemphasis on universal rights can distract from other essentials of political life, including the discharge of responsibilities, the cultivation of virtues, and the caring for community.”
U.S. Role in Evaluating These Criticisms
“It’s especially important for the United States to respond thoughtfully to the confusion and controversy swirling around human rights because of our country’s founding convictions. The Declaration of Independence affirms “certain unalienable Rights” — these include “Life, Liberty, and the pursuit of Happiness” — that inhere in all human beings. The Constitution establishes the institutional framework that enables Americans to secure these fundamental rights through democratic self-government.” (Emphasis added.)
Moreover, as a driving force behind the Universal Declaration of Human Rights — adopted by the U.N. General Assembly in December 1948 — the United States reaffirmed the nation’s founding conviction that all human beings deserve the rights and liberties secured by its Constitution. At the same time, the Constitution leaves to the American people and their elected representatives the discretion to determine the role in the country’s foreign policy played by the universal rights that Americans and non-Americans share.” (Emphasis added.)
Evaluation of Criticisms
“Yet an array of scholars, pundits, former political officials, and organizations are up in arms about the commission. Their critiques are illuminating, though not entirely as they intended.”
“First, critics charge that the Trump administration’s record advancing human rights renders it unfit to establish a commission to provide advice on human rights. Set aside that the administration has engaged Kim Jong-un in pursuit of peaceful dismantlement of North Korea’s nuclear program; imposed tough sanctions on Vladimir Putin’s belligerent Russia; supported a democratic transition in Venezuela; opposed Iran’s quest to impose a brutal hegemony throughout the Middle East; and convened in Bahrain an international forum attended by Saudi Arabia and the United Arab Emirates, among others, to discuss the economic reconstruction of the West Bank and Gaza and peace between Israel and the Palestinians. Isn’t the State Department’s determination to improve understanding of the connections between America’s founding principles and the administration’s foreign policy a sign of the enduring significance it attaches to human rights?”
“Second, critics detect a sinister ambition in Secretary Pompeo’s “distinction between unalienable rights and ad hoc rights granted by governments.” They worry that authoritarian countries around the world will conclude that the guiding purpose of the Commission on Unalienable Rights is to redefine human rights narrowly. But the American constitutional tradition turns on the difference between universal rights that are essential and unchanging and the contingent rights created by the consent of the governed that serve as a means to protecting citizens’ fundamental freedoms, and which are bound to vary from country to country.” (Emphasis added.)
“Third, critics express dismay that the commission was charged with examining the reasoning by which claims about human rights are assessed, because they believe that the debate about the foundations and the meaning of human rights has all but ended. It has been asserted, for example, that codification of human rights by widely ratified international treaties (in many cases, though, not ratified by the United States) renders the commission’s work superfluous. This contention illustrates problems that gave rise to the panel. Contrary to the critics’ belief, a right does not become inalienable simply because an international treaty says so. And the refusal of the United States to ratify many such treaties demonstrates the persistence of questions about what counts as a human right and about the status of such rights in international law.” (Emphasis added.)
“Fourth, critics have warned that the commission intends to strip members of various groups and communities of their rights. In fact, the commission proceeds from the premise that all persons — regardless of faith, nationality, race, class, and gender — share essential rights grounded in our common humanity.” (Emphasis added.)
Fifth, critics accuse the commission of lacking intellectual and political diversity. In fact, the political diversity and variety of intellectual perspectives represented compares quite favorably with the uniform political and intellectual outlook that informs so many of those who have condemned the commission.
“In one respect, the quick-out-of-the-gate criticisms of the State Department’s Commission on Unalienable Rights have been highly constructive. By throwing into sharp relief the passion and perplexity that surround the discussion of human rights, the critics themselves unwittingly make the case for sober and deliberate reflection about the roots of human rights in the American constitutional tradition, and their reach in the conduct of America’s foreign affairs. That is precisely the task that Secretary Pompeo has directed the Commission on Unalienable Right to undertake, and which its members have proudly embraced.” (Emphasis added.)
This Blogger’s Reactions
Some of the highlighted portions of Berkowitz’s comments correctly observe that some of the criticisms expressed concern that the Commission was designed to reduce the scope of international human rights in accord with the political views of the Trump Administration, but Berkowitz fails to acknowledge statements by Secretary Pompeo that prompted these criticisms.
Berkowitz also acknowledges, as he should, that the U.S. “Constitution establishes the institutional framework that enables Americans to secure these fundamental rights through democratic self-government.” But he fails to note that the U.S. Declaration of Independence itself states, ““to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed” immediately following its proclamation, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” (Emphasis added.)
In other words, the U.S. Declaration itself implicitly recognizes that it does not secure the rights it proclaims because it does not create binding legal obligations. Instead the Declaration contemplates that the not yet established U.S. government subsequently will enact statutes that protect the unalienable rights, only three of which are specifically mentioned in the Declaration while alluding to a larger category of unalienable rights. These subsequent statutes are not “ad hoc” and lesser rights as Secretary Pompeo likes to say. [2]
Similarly the U.N. Universal Declaration of Human Rights (UDHR) from 1948, which the Commission, in other contexts, properly mentions in the same breath as the U.S. Declaration of Independence, does not create any binding legal obligations. Instead, the UDHR says, “every individual and every organ of society , keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure [these rights and freedoms] universal and effective recognition and observance.” In other words, the UDHR itself contemplated that there should be additional measures, including national legislation and international treaties, to secure the rights and freedoms articulated in the UDHR. Again, these are not “ad hoc” and lesser rights.(Emphasis added.)
In addition, the Commission’s Chair Mary Ann Glendon, the author of a leading book about the creation of the UDHR, has said that one of the principles of the UDHR’s framers was “flexible universalism.” The UDHR framers “understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements.” For example, . . . [UDHR’s] Article 22 provides: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (Emphasis added.) Another example is Article 14, which states, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution,’ but is silent on how that right should be protected. [3]
“Flexible universalism” also exists in human rights treaties that allow for their ratification by nation states with reservations for at least some of the treaty’s provisions. And, of course, a state may chose not to ratify a treaty and thereby not be bound by any of its provisions. Moreover, there are mechanisms for other states and international agencies to address these reservations and non-ratifications. For example, in the U.H. Human Rights Council’s Universal Periodic Review process, the Council and other states may, and do, make recommendations for states to withdraw reservations or ratify certain treaties. But these are only recommendations.[4]
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[1] Berkowitz, Criticisms Illustrate Need for State Dept. Human Rights Panel (Sept. 15, 2019). Dr. Berkowitz also serves this year on the Department’s Policy Planning Staff while on leave as Ted and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University. He is the author of books and articles about constitutional government, conservatism, liberalism and progressivism, liberal education and Israel and the Middle East. He holds degrees from Swarthmore College (B.A.), Hebrew University of Jerusalem (M.A.), and Yale University (PhD and JD). (Com’n Unalienable Rights, Member Bios.)
[2] E.g., Another Speech About Unalienable Rights by Secretary of State Michael Pompeo, dwkcommentareies.com (Sept. 7, 2019); Criticism of the U.S. Commission on Unalienable Rights, dwkcommentaries.com (July 20, 2019).
[3] Human Rights Commentaries by Mary Ann Glendon, Chair of the Commission on Unalienable Rights, dwkcommentaries.com (Nov. 2, 2019).
[4] E.g., U.N.’s Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review, dwkcommentaries/com (Sept. 20, 2018); U.S. Ratification of the International Covenant on Civil and Political Rights, dwkcommentareis.com. (Feb. 5, 2013) (U.S. ratification had five reservations, understandings, four declarations and a proviso).
