Human Rights Commentaries by Mary Ann Glendon, Chair of the Commission on Unalienable Rights

A prior post reviewed the limited public record (to date) of the first meeting on October 23 of the Commission on Unalienable Rights.

To gain a better understanding of what to expect from the Commission, this blog will examine two recent commentaries on human rights by, and an interview of, the Commission’s Chair, Mary Ann Glendon, the Learned Hand Professor of Law at the Harvard Law School, the author of a major book about the development of the Universal Declaration of Human Rights (UDHR) [1] and a prominent Roman Catholic who was U.S. Ambassador to the Vatican in the George W. Bush Administration. The Conclusion will evaluate her comments and those made by others at the first meeting.

Reclaim Human Rights (August 2016) [2]

Glendon began this article by acknowledging that she had been a participant in the Ramsey Colloquium’s 1998 affirmation of the UDHR as “the most available discourse for cross-cultural deliberation about the dignity of the human person” and as making “possible a truly universal dialogue about our common human future.” [3] She also affirmed she was “a longtime supporter of the cautious use of rights language, and a frequent critic of its misuses.”

Nevertheless, Glendon said that a 2016 criticism of human rights by R.R. Reno, the editor of First Things, [4] caused her to “ponder whether the noble post-World War II universal human rights idea has finally been so manipulated and politicized as to justify its abandonment by men and women of good will.”

According to Glendon, by “1998, governments and human-rights organizations alike were ignoring the fact that the UDHR was constructed as an integrated document whose core fundamental rights were meant to be ‘interdependent and indivisible.’ [However, by 1998, the] sense of the interdependence among rights and the connections between rights and responsibilities was fading.” Moreover, “a host of special-interest groups [were inspired] to capture the moral force and prestige of the human-rights project for their own purposes. . . .[The] core of basic human rights that might be said to be universal was being undermined by ‘multiplying the number of interests, goods, and desires that are elevated to the status of rights.”

As a result, by 2016, she argues, “the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy.”

Reno’s criticism of human rights, Glendon continues, emphasizes “the way that human rights as an ideology detracts from the difficult and demanding work of politics.” This is especially true in the U.S., she says, as “judicially-created rights have displaced political judgements that could and should have been left to the ordinary processes of bargaining, education, persuasion, and voting.” This has damaged “the American democratic experiment” by making it more difficult to correct an unwise judicial decision, intensifying “the politicization of the judicial selection process,” depriving “the country of the benefits of experimentation with different solutions to difficult problems” and accelerating “the flight from politics.”

Glendon concludes by urging “church leaders and people of good will to make every effort to connect the human-rights project to an affirmation of the essential interplay between individual rights and democratic values. We should insist on the connection between rights and responsibilities. And we should foster an appreciation of the ultimate dependence of rights upon the creation of rights-respecting cultures.”

 “Renewing Human Rights” (February 2019) [5]

“When Eleanor Roosevelt and a small group of people gathered at the behest of the U.N. in early 1947 to draft the world’s first ‘international bill of rights’” (the subsequent UDHR), the “idea that some rights could be universal—applicable across all the world’s different societies—was controversial.”

“Yet in the decades that followed, the UDHR . . . successfully challenged the view that sovereignty provided an iron shield behind which states could mistreat their people without outside scrutiny.”

“But now . . . the international human rights idea is in crisis, losing support both at home and abroad. Good intentions, honest mistakes, power politics, and plain old opportunism have all played a role in a growing skepticism, and even a backlash.”

As Glendon sees it, “there were three stages” to this change: [1] a pick-and-choose attitude toward rights initiated by the two superpowers in the Cold War era [U.S. and U.S.S.R.]; [2] an over-extension of the concept once the human rights idea showed its moral force; and [3] a forgetfulness of the hard-won wisdom of the men and women who had lived through two world wars.”

“The end of the Cold War increased the influence of human rights. American predominance, Western ideological ascendancy, a series of atrocities and conflicts, and a growing role for the United Nations and other international actors spurred the rapid growth of human rights activism in the 1990s. By the 2000s, there were many human rights organizations, including specialists, activists, agencies for monitoring and enforcement, and academic journals.”

These changes brought about “an interventionist approach, backed by Western—especially American—power. . . .  The establishment of state-like institutions such as the International Criminal Court (which the United States ultimately did not endorse), and doctrines such as the ‘Responsibility to Protect,’ reflected this shift. They increased the human rights field’s ability to frame the international agenda and set global standards. . . .  This encouraged an expansion in the number of basic rights.”

“Given that individual rights were gaining ascendancy, the role of social institutions and non-­individualistic values were deemphasized. A one-size-fits-all approach triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and inter­dependence of fundamental rights were ­forgotten.”

Some states now object to “uniform methods of interpreting and implementing” human rights treaties and to “supra­national institutions. They are remote from the people whose lives they affect. They lack public scrutiny and accountability, are susceptible to lobbying and political influence, and have no internal checks and balances.”

According to Glendon, the following “four major principles that the UDHR’s framers followed [in 1947-48] can reinvigorate the human rights idea in our own time:”

  • Modesty concerning universality. “The framers wisely confined themselves to a small set of principles so basic that no country or group would openly reject them. This was essential not only in order to gain broad political support within the U.N., but also to ensure that the Declaration would have deep and long-lasting support across vastly different cultures, belief systems, and political ideologies.”
  • 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.
  • Interdependence of basic rights.” The UDHR makes it clear “that everyone’s rights depend on respect for the rights of others, on the rule of law, and on a healthy civil society. . . . The framers of the [UDHR] did not expect uniform management of tensions or conflicts between rights. . . . [and instead] assumed that communities must balance the weight of claims of one right versus another before determining the best course of action.” Only a few rights do not allow such variation: “protections for freedom of religion and conscience” as well as “prohibitions of torture, enslavement, degrading punishment, . . .retroactive penal measures, and other grave violations of human dignity.”
  • “Subsidiarity.” Emphasis on “the primacy of the lowest level of implementation that can do the job, reserving national or international actors for situations where smaller entitles are incapable.” This principle, as stated in the UDHR’s Proclamation, also calls on “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.”

Glendon concludes by arguing for a new human rights goal: “the systematic elimination of a narrow set of evils for which a broad consensus exists across all societies. This would at least include “protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.”

Glendon Interview [6]

On August 3, 2019, Glendon was interviewed by Jack Goldsmith, another Harvard Law School professor of international law. Here are her comments that were not already expressed in the above articles.

She said there was confusion and crisis in human rights with roughly half of the world’s population without any rights and exasperated by disappointing performance of international human rights institutions.

Socrates said that definition of terms was the beginning of wisdom, and this is especially important since human rights are now important parts of U.S. foreign policy.

The concept of “unalienable rights,” which the printer of the original Declaration of Independence substituted for Thomas Jefferson’s draft’s use of “inalienable,” has evolved with the U.S. Bill of Rights (the first ten amendments to the Constitution) and the words of Abraham Lincoln and Martin Luther King, Jr.

While the U.S. Declaration of Independence talked about “laws of nature” or pre-political rights, the UDHR is grounded in the world’s religious and philosophical traditions.

Glendon emphasized the civil and political rights in the UDHR were interdependent with economic and social rights and pointed to the New Deal and the preambles of many U.S. statutes on economic and social issues as expressing this interdependence. This also is stated in Article 22 of the UDHR: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation 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.) This provision rejected the Soviet Union’s position that the state was solely responsible for such rights with Eleanor Roosevelt saying during the deliberations over the UDHR that no one had figured out how to do that without loss of freedom.

Another emphasis of Glendon was on the UDHR Proclamation’s words: ‘every individual and every organ of society, Keeping the [UDHR] constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of [U.N.] Member States themselves and among the peoples of territories under their jurisdiction.” Or as Judge Learned Hand said, ‘The spirit of liberty will die if not in the hearts of the people.’

Reactions

 Glendon’s primary focus in these two articles and interview is the UDHR, which is mentioned as one of two  guiding authorities for the Commission on Unalienable Rights, but Glendon has less to say about the U.S. Declaration of Independence, which is the other guiding authority for this Commission.

We all should seek to follow her emphasizing the UDHR’s interdependency of civil and political rights with economic and social rights and the importance of every individual and every organ of society striving by teaching and education to promote respect for human rights and freedoms.

The UDHR indeed is an important international human rights instrument. But it is a declaration adopted by the U.N. General Assembly in 1948. It does not by itself establish legal obligations on any nation state or other person.

In any event, Glendon says nothing about another provision of the UDHR’s Proclamation: “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.” (Emphasis added.) 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 and, by implication, that these other measures will include “rights” language. Moreover, under the principle of “flexible universalism,” a developed and wealthy country like the U.S. could well find ways to secure the rights mentioned in the UDHR that are more complex than those in other countries.

A similar principle for the Commission exists in the U.S. Declaration of Independence.  It says, as the Commission emphasizes, “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.” But the very next sentence of the U.S. Declaration says, but the Glendon and the Commission ignore, “That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (Emphasis added.) In other words, the U.S. 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.[7] These are not “ad hoc” rights as Secretary Pompeo likes to say.

As a result, after the 1948 adoption of the UDHR, various U.N. organizations have drafted and adopted many international human rights treaties,[8] and the U.S. federal and state governments have adopted many human rights statutes and regulations.

This obvious point is surprisingly overlooked by Glendon when she lauds UDHR’s Article 14 on the right to asylum as an example of flexible universalism because it does not say how that right should be protected. But the 1951 Convention Relating to the Status of Refugees that entered into force on April 22, 1954, defines”refugee” and specifies many conditions for that protection while limiting reservations under Article 42. Presumably she is not arguing that this treaty was a mistake.

Indeed, we should all celebrate, not complain as Secretary Pompeo likes to do, that there has been such proliferation or in Glendon’s words, “too much contemporary emphasis on ‘rights’ language. These arguments by Pompeo and Glendon can be seen as underhanded ways to cut back or eliminate rights that they do not like, which I assume would include abortion and LGBQ rights. Such rights constantly are criticized by her church (Roman Catholic) and by the Commission’s creator, Secretary of State Michael Pompeo, and others in the State Department.[9]

Criticism of Glendon’s apparent adherence to traditional Roman Catholic teachings on some of these issues comes from her successor as U.S. Ambassador to the Vatican in the Obama Administration, Miguel Diaz, along with 128 Catholic activists and leaders, in a letter opposing the Commission. [10] They said, “Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world. Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world,” they write. “Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Of most urgent concern is that the composition of the Commission indicates that it will lead our State Department to adopt policies that will harm people who are already vulnerable, especially poor women, children, LGBTI people, immigrants, refugees, and those in need of reproductive health services. This is being done “in the name of a very partial version of Christianity that is being promoted by the current Administration.” “All human beings,” however, “have been created in God’s image and all have been endowed by their Creator with the fundamental right to Life, Liberty, and the pursuit of Happiness. No person speaking in the name of government or in the name of God can do so to undermine or to deny this right.”

Nor does Glendon discuss how to resolve conflicts among rights. For example, the U.S. Declaration’s mention of “life” as one of the “unalienable rights” is taken by some, and probably Glendon, as a basis for arguing there should be no right to an abortion. But an abortion may be necessary to protect an expectant woman’s right to “life” or her “pursuit of happiness.”  How are those conflicts resolved? That is why we have federal and state and international courts and agencies to resolve these conflicts or disputes.

The previously cited “four major principles” of the UDHR are worthy of remembering and guiding future human rights, internationally and domestically.

Glendon, however, fails to acknowledge the continued use of the “flexible universalism” principle 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. [11] 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. The same was done by the Council’s predecessor, the U.N. Human Rights Committee.[12]

The words of Professor Michael McConnell from the Commission’s first meeting should also be remembered in this evaluation of its ongoing work. He warned that the term “‘unalienable rights,’ which comes to us from our country’s protestant reform traditions, has never had a common or precise definition. The phrase identifies a philosophical concept, rather than a concrete set of rights.  And while the concept often prioritizes freedom of religion, McConnell cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.”

“McConnell also recognized the implicit failures of this philosophical approach.  While the term ‘unalienable rights’ makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.”

Andrea Schmitt of the Center for American Progress who attended  the Commission’s first meeting also had words of wisdom for the Commission. She said, “It is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others.  Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world.”

We all should thank Professor Glendon for her expertise and willingness to serve as Chair of the Commission. Those of us interested in international human rights need to carefully follow the Commission’s deliberations and eventual reports and express our agreements and disagreements with respect and reasoned arguments.

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[1] Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001); The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).

[2] Glendon, Reclaim Human Rights, First Things (Aug. 2016).

[3] The Ramsey Colloquium apparently published reflections about early Christianity’s treatment of homosexuality. (Graeser, The Ramsey Colloquium and Other First Things Resources, Mars Hill Audio (June 29, 2001).

[4] Reno, Against Human Rights, First Things (May 2016). Reno is a former professor of theology and ethics at Creighton University, a Jesuit institution until 2010 when he became the editor of First Things. In 2004 at age 45 he left the Episcopal Church to join the Roman Catholic Church and  describes himself as a theological and political conservative. First Things, which describes itself as“America’s most influential journal of religion and public life,” is published by the Institute on Religion and Public Life, an interreligious, nonpartisan research and educational 501(c)(3) organization. The Institute was founded in 1989 by Richard John Neuhaus and his colleagues to confront the ideology of secularism, which insists that the public square must be ‘naked,’ and that faith has no place in shaping the public conversation or in shaping public policy.” The Institute’s mission is to articulate a governing consensus that supports: a religiously pluralistic society that defends human dignity from conception to natural death; a democratic, constitutionally ordered form of government supported by a religiously and morally serious culture; a vision of freedom that encourages a culture of personal and communal responsibility; and loyalty to the Western tradition that provides a basis for responsible global citizenship.”

[5]  Glendon & Kaplan, Renewing Human Rights, First Things (Feb. 2019) The co-author, Seth D. Kaplan, is a professorial lecturer at the Paul H. Nitze School of Advanced International Studies at John Hopkins University. He is a consultant to organizations such as the World Bank, USAID, State Department, United Nations and African Development Bank.

[6] Howell, The Lawfare Podcast: Mary Ann Glendon on Unalienable Rights, Lawfare (Aug. 3, 2019).

[7] See The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes, dwkcommentaries.com (July 5, 2019).

[8] As of 2009, there were at least the following significant multilateral human rights treaties: (1) U.N. Charter; (2) International Covenant on Economic, Social and Cultural Rights; (3) First Optional Covenant to the International Covenant on Civil and Political Rights; (4) Covenant on the Prevention and Punishment of the Crime of Genocide; (5) Convention Relating to the Status of Refugees; (6) Protocol Relating to the Status of Refugees; (7) International Convention on the Elimination of All Forms of Racial Discrimination; (8) Convention on the Elimination of All Forms of Discrimination against Women; (9) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (10) Convention on the Rights of the Child; (11) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the elimination of the death penalty; (12) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (13) Statute of the International Court; and (14) International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. (Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 33-35 (Lexis/Nexis 4th edition 2009).)

[9] See, e.g.,  U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[10] White, Former U.S. envoy to Vatican opposes new commission headed by predecessor, Crux (Jul. 23, 2019).

[11] Under international law, “A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation unless (a) the reservation is prohibited by a treaty; (b) the treaty provides that only specified reservations, which do not include the reservation  in question, may be made; or (c) in cases not falling under sub-paragraphs (a) or (b), the reservation is incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties, arts. 19 (1980); id. Arts. 2(1) (d),20, 21, 22 )  See also,e.g., these posts to dwkcommentaries.com: Multilateral Treaties Signed, But Not Ratified, by the U.S., dwkcommentaries.com (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S., dwkcommentaries.com (Feb. 16, 2013).

[12] See, e.g., these posts to dwkcommentaries.com: U.H. Human Rights Committee’s Review of U.S. Human Rights (April 19, 2014); U.N. Human Rights Committee’s Hearings About U.S. Human Rights (April 21, 2014); U.N. Human Rights Committee‘s Concluding Observations on U.S. Human Rights (April 24, 2014); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: Background (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The Pre-Hearing Papers (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The UPR Hearing (June 16, 2018); U.N. Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review (Sept. 20, 2018).

 

 

 

Commission on Unalienable Rights Holds First Meeting

The Commission on Unalienable Rights held its first public meeting on October 23 at the State Department that was attended by “a few dozen U.S. officials and nongovernmental (NGO) representatives.” Its stated purpose was to discuss “topics related to human rights and the American founding.” [1]

 Secretary of State Michael Pompeo’s Comments

The day before the meeting, Secretary of State Michael Pompeo tweeted, ““I’m confident the Commission will advance the Administration’s unmatched commitment to fundamental human rights and extend America’s legacy as a nation without peer in upholding freedom and human dignity.”

He amplified those remarks the same day in an interview by Tony Perkins, a Commission member and the Family Research Council President, on his “Washington Watch” program. Pompeo said, “This is a commission that has a set of commissioners from a broad political perspective, different faith traditions, all aimed at something that I think every American can agree to, which is our conception that our founders put in place of the protection of human life and dignity is central to America’s wellbeing and our exceptionalism as a nation, and indeed, are a beacon for the entire world.”

Pompeo also said,”The protection of human life and dignity is central to America’s well-being and our exceptionalism as a nation and indeed our beacon for the entire world. What we’re hoping to do is to take up this idea of rights, which sometimes becomes confusing–or turns into simply personal or political preferences–and reground it in the history and tradition of the United States so that we are moored to something more than someone’s fancy of the moment.” Pompeo continued, “We’re trying to cut back to the roots to make sure that everyone is grounded in this tradition. And I will tell you. Around the world, people are watching the work that our commission is undertaking. There is a thirst for this work.”

In the tony Perkins interview, Pompeo added, “What we’re hoping to do is to take this idea of rights, which sometimes becomes confusing or turns into simply personal or political preferences, and reground it — reground it in the history and tradition of the United States so that we are moored to something more than someone’s fancy of the moment and we come to understand that these incredible cherished, fundamental rights are at the very core of the American experience.”

At the meeting itself, Pompeo stated, “It’s in the best traditions of American democracy that this meeting is a public one. One thing that makes America special is that our civic deliberations take place openly. We are not governed by the private writ of kings. We always have the debate – think of the Lincoln-Douglas debates, President Wilson’s 14 Points, the civil rights movement, and many other issues.”

“It heartens me that you all are here to consider the ideas and arguments made before you. I pray they will improve our understanding and profit our nation.”

“This meeting of the Commission extends America’s unmatched national commitment to fundamental human rights. It began with the words of the Declaration of Independence, which made clear governments must honor “unalienable rights.” It continued when Abraham Lincoln – inspired by the words of the Declaration – signed the Emancipation Proclamation. In 1947, Eleanor Roosevelt led the creation of the UN Declaration of Universal Human Rights – a document that substantially drew on our Constitution’s Bill of Rights. We upheld fundamental rights in the civil rights era, when the promise of liberty and equality was realized for Americans who had previously been treated as second-class citizens, or worse. And we upheld human rights internationally in the fight against apartheid, and communism.”

“But in the last few decades, we’ve become confused about “rights.” Claims of “rights” have shaped our political debates, but it isn’t always clear whether we’re talking about fundamental, universal rights; or debatable political priorities; or merely personal preferences.”

“Claims of ‘rights’ have exploded. One research group has found that between the United Nations and the Council of Europe, there are a combined 64 human rights-related agreements, encompassing 1,377 provisions.”

“International bodies designated to protect human rights have drifted from their missions, or have been outright corrupted. Authoritarian governments often misuse these bodies. Just last week, China and Russia, for instance, voted Venezuela onto the UN Human Rights Council.  What hypocrisy.”

“And our kids aren’t taught about the role of  ‘unalienable rights’ in the American Founding – if they learn about the Founding at all.”

“So it’s time to ask some key questions:” (1)  “What are our fundamental freedoms?” (2) “Why do we have them?” (3) “Who or what grants them?” (4) “How do we know if a claim of human rights is true?” (5) “What happens when rights conflict?” (6) “Should certain categories of rights be inextricably “linked” to other rights?” (7) “How should government be organized and limited to ensure the protection of rights?”

In addition, the Commission’s Chair, Mary Ann Glendon, made a statement at the meeting, but it has not been found.

Other Speakers at the Meeting

The first speaker, “Michael McConnell, a constitutional scholar at Stanford Law School and a former judge on the U.S. Tenth Circuit Court of Appeals, warned that the term ‘unalienable rights,’ which comes to us from our country’s protestant reform traditions, has never had a common or precise definition. The phrase identifies a philosophical concept, rather than a concrete set of rights.  And while the concept often prioritizes freedom of religion, McConnell cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.”

“McConnell also recognized the implicit failures of this philosophical approach.  While the term ‘unalienable rights’ makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.”

According to the Council for Global Equality, an organization of “international human rights activists, foreign policy experts, LGBT leaders, philanthropists and corporate officials [who] encourage a clearer and stronger American voice on human rights concerns impacting LGBT communities around the world,” https://globalequality.wordpress.com/about/ McConnell’s remarks  “must have been a blow to the Commissioners, since[ Secretary] Pompeo clearly wants them to propose a new hierarchy of unalienable rights — with religious freedom at the pinnacle and the rights of LGBTI and other individuals with specific ‘preferences’ in the alienable category.  Indeed, Pompeo constantly speaks of religious freedom as the ‘first right’ from which other rights flow, proclaiming, often in messianic terms, that human rights ‘came from our Lord, and when we get this right, we’ll have done something good, not just I think for the United States but for the world.’”

The Global Equality group added, “While U.S. moral leadership ebbs and flows, and our commitment to human rights institutions has been uneven over the years, it is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others.  Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world. Those same oppressors also happen to be some of the leading persecutors of LGBTI individuals and other marginalized groups.”

The second presenter was Wilfred M. McClay, an American intellectual historian, a noted public intellectual, Senior Fellow at the Trinity Forum, and the current occupant of the G.T. and Libby Blankenship Chair in the History of Liberty at the University of Oklahoma. He urged the Commission to come up with “as short of a list [of unalienable rights] as possible” and to distinguish between “a small core of truly unalienable rights” and “putative rights.”

According to Alexandra Schmitt, a policy analyst for human rights, democracy and development at the Center for American Progress who attended the meeting, “McClay’s suggestions “would be a grave mistake. Human rights is not a zero-sum game whereby the protection of some rights means that others cannot be guaranteed. The commission members did not comment on his statement, but they also didn’t reject it outright—”a worrying signal for the future work of this group.” Ms. Schmitt also noted that “The only right that both presenters could agree was certainly unalienable was the right to freedom of conscience, which was understood to include freedom of religion and freedom of thought.”

Schmitt added, “It is clear that our worst fears have been confirmed and that yesterday’s meeting was the christening of Pompeo’s intensely academic attempt to justify his efforts to elevate religious freedom to a position of dominance in our country’s human rights diplomacy.  This policy shift was already foreshadowed by Pompeo’s announcement in June, marking the release of the State Department’s 2018 Annual Report on International Religious Freedom, that he would strip the State Department’s office of religious freedom out of the Department’s human rights bureau, where it long has served to integrate religious liberty concerns with other human rights priorities, to a position of independence and priority in the Department’s organizational hierarchy.”

It also should be noted that several groups have announced their intent to ask the Commission to eliminate any right to an abortion. [2]

A subsequent post will discuss and analyze recent human rights comments by Chair Glendon and her recent interview as they relate to the Commission.

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[1]  Commission on Unalienable Rights; Notice of Open Meeting, Fed. Reg. (Oct. 2, 2019); Sec. of State Mike Pompeo Joins Tony Perkins on the Radio to Discuss the Commission on Unalienable Rights, yahoo finance.com (Oct. 23, 2019); State Dep’t, Pompeo Remarks, Commission on Unalienable Rights Public Meeting (Oct. 23, 2019); Lavers, State Department human rights advocacy commission holds first meeting, SFGN (Oct. 29, 2019); Pompeo’s Dangerously Misguided Human Rights Commission, Global Equality (Oct. 24, 2019); Schmitt, 5 questions About the Commission on Unalienable Rights, americanprogress.org (Oct. 31, 2019).This blog, prompted by worries that this Commission may seek to narrow U.S. commitments to human rights,  has many posts about the Commission.

[2] Pro-family groups have asked US ‘Commission on Unalienable Rights’ to fight for parental rights, LifeSite (Oct. 22, 2019); Ruth Institute, Ruth Institute President Welcomes First Public Meeting of State Dept. Commission on Unalienable Rights (Oct. 21, 2019) Concerned Women for America, Groups Unite to Support the U.S. Commission on Unalienable Rights (Aug. 6, 2019).

 

 

 

“The 1619 Project” Commemorates the Arrival of Slavery in the U.S.

On August 18, 2019, the Sunday New York Times commemorated the arrival of the first slaves in what became in the Colony of Virginia with its Sunday Magazine totally devoted to slavery in the U.S. (“The 1619 Project”). [1] The Project “aims to reframe the country’s history, understanding 1619 as our true founding, and placing the consequences of slavery and the contribution of black Americans at the very center of the story we tell ourselves about who we are.” That issue of the Magazine contained the following articles:

Title Pages
Introduction 4-7, 10-11
The Idea of America 14-22, 24, 26
Chained Migration: How Slavery Made Its Way West 22
August 1619 (Poem) 28
Crispus Attucks (Poem) 29
Capitalism 30-35, 36-38, 40
Good as Gold: In Lincoln’s wartime “greenbacks,” a preview of the 20th-century rise of fiat currency 35
Fabric of Modernity: How Southern cotton became the cornerstone of a new global commodities trade 36
Municipal Bonds: How Slavery Built Wall Street 40
Phillis Wheatley (Poem) 42
Fugitive Slave Act of 1793 (redacted) 43
A Broken Health Care System 44-45
Gabriel’s Rebellion (Aug. 30, 1800) 46
Act Prohibiting Importation of Slaves (Jan. 1, 1808) 47
Traffic 48-49
Undemocratic Democracy 50-55
Medical Inequality 56-57
American Attack on Negro Fort (July 27, 1816) 58
Emancipation Proclamation (Jan. 1, 1863) 59
Attack on Abolitionist Convention (July 30, 1866) 59
American Popular Music 60-67
Tuskegee Study of Untreated Syphilis in Negro Male (1932) 68
Attack on Isaac Woodard (Feb. 12, 1946) 69
Sugar 70-76, 77
Pecan Pioneer: The Enslaved Man Who Cultivated the South’s Favorite Nut 76
Bombing of 17th Street Baptist Church, Birmingham, AL (Sept. 15, 1963)(Poem) 78
Creation of Black Panther Party (Oct. 15, 1966) (Poem) 79
Mass Incarceration (Bryan Stevenson) 80-81
The Wealth Gap 82-83
Hip-Hop 84
Rev. Jesse Jackson Speech (July 17, 1984) 84-85
Louisiana Superdome, Hurricane Katrina (August 2005) 85
Graduates of Howard University Law School (Photos) 86-93
The 1619 Project in Schools (resources for teachers) Inside back cover
Statement by Lonnie G. Bunch III (Sec. of Smithsonian) Back cover

In addition, that issue of the Sunday Times had a special section on the history of U.S. education about slavery, entitled, “We’ve Got To Tell the Unvarnished Truth” with the following contents:

Title Page
Public notice of slave auction (Mar. 25, 1858) 1
“We  are committing educational malpractice” 2
“Why Can’t We Teach This?” 3
Introduction 4
No. 1/ Slavery, Power and the Human Cost 5-9
No. 2/ The Limits of Freedom 10-11
No. 3/ A Slave Nation Fights for Freedom 12-15

Many other articles about this Project have appeared in the Times, the Washington Post and other periodicals. Here are some of those articles:

Negative views of this Project have been expressed in the following:

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[1] The articles in the August 18th Magazine may be found separately in the website for the Magazine (https://www.nytimes.com/section/magazine). This issue of the Magazine has been sold out and has not been reprinted or published as a paperback book.

 

 

Guantanamo Bay: The World’s Most Expensive Prison   

According to the New York Times, the U.S. total cost last year of operating the detention facility or prison at Guántanamo Bay, Cuba exceeded $540 million. This consists of the costs of holding the prisoners — including the men accused of plotting the Sept. 11, 2001, attacks — paying for the troops who guard them, running the war court and doing related construction.” This does not include classified expenses, presumably a continued CIA presence in Guantanamo.[1]

With only 40 prisoners now housed there, that means each of them costs the U.S. Government at least $13 million per year.

The U.S. “military assigns around 1,800 troops to the detention center, or 45 for each prisoner. The troops work out of three prison buildings, two top-secret headquarters, at least three clinics and two compounds where prisoners consult their lawyers. Some also stand guard across the base at Camp Justice, the site of the war court and parole board hearing room.”

“The 40 prisoners, all men, get halal food, access to satellite news and sports channels, workout equipment and PlayStations. Those who behave — and that has been the majority for years — get communal meals and can pray in groups, and some can attend art and horticulture classes.”

“The prison’s staff members have their own chapel and cinema, housing, two dining rooms and a team of mental health care workers, who offer comfort dogs.”

In 2013 the Defense Department issued an annual report that said the annual cost of operation Guantanamo Bay was $454.1 million. Moreover, that report “put the total cost of building and operating the prison since 2002 at $5.2 billion through 2014, a figure that now appears to have risen to past $7 billion.”

Conclusion

This blog has published many posts regarding the legal basis for the U.S. use of this part of Cuba (a 1903 lease for use as a “coaling or naval station only, and for no other purpose”), the annual rent paid by the U.S., but not accepted by Cuba ($ 4,085), and the pros and cons of Cuba’s repeated assertion that the U.S. presence in Guantánamo is illegal.

Now the exorbitant U.S. cost of operating these facilities presents another reason why the U.S. should close these facilities and work out an agreement for return of this territory to Cuba, including a ban on Cuba’s letting Russia or another nation occupy and use the facilities.

On September 18 President Donald Trump, in response to a journalist’s question about the expense of operating Guantánamo, said, “I think it’s crazy. It costs a fortune to operate, and I think it’s crazy.” However, he did not say he would consider closing the Guantanamo facility. Instead, he said , “We’re looking at a lot of things.”[2]

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[1] Rosenberg, The Cost of Running Guantánamo Bay: $13 Million Per Prisoner, N.Y. Times (Sept. 17, 2019).

[2] Baker, Trump Says ‘It’s Crazy’ to Spend $13 Million Per Inmate at Guantánamo, N.Y.Times  (Sept. 19, 2019).

 

Another Speech About Unalienable Rights by Secretary of State Michael Pompeo

On September 6, U.S. Secretary of State Michael Pompeo returned to his home state of Kansas to deliver the Landon Lecture at Kansas State University, entitled, “In Defense of the American Rights Tradition.” Here are highlights of what he had to say followed by this blogger’s reactions. [1]

Pompeo’s Lecture

“Our glorious history . . . should be revered.  And the truest expression of that reverence is to safeguard and live by the principles by which this country was founded, and those people who forged this unique place.”

“That . . . American tradition, begins with a set of unalienable rights.  Our nation’s founding created them.  They’re the beating heart of who we are as an American body today, and as Americans.  The Declaration of Independence laid it out pretty clearly. . . . It says:  ‘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,’ and, ‘That among these are Life, Liberty and the pursuit of Happiness,’ and, ‘That to secure these rights, Governments [were] instituted among Men, deriving their just powers from the consent of the governed.’”

“In other words, these are rights that were endowed upon us by our creator.  They’re part of our nation . . . and they’re part of who we are as Americans, as human beings.  They are independent of anything our government does, and the purpose of government indeed is to protect those unalienable rights.  And I must say, as I travel the world, there can be no nobler cause.”

“Just as profoundly, that declaration says that all men – and it meant all human beings – are created equal.  These rights weren’t unique to us as Americans.  We were simply the first nation with the vision to organize around them, with a national mission that was to honor those very rights, these fundamental rights.”

“In 1858, George Washington Brown, an abolitionist newspaper editor from Lawrence [Kansas], said ‘…no party…of men can be guilty of greater inconsistency or absurdity than those who deny the axiomatic truths asserted in the equality and inalienable rights of all men.’”

“John Speer, a bit later, the abolitionist editor of the Kansas Pioneer, said that, ‘The American Government was originally based upon the principle of the universality of freedom, and the Declaration of Independence was an emphatic [and] succinct declaration that all men [are indeed] created equal, and entitled to certain unalienable rights,’ as a result of their human dignity.”

“And then in commenting on the Declaration’s affirmation of unalienable rights, [President Abraham] Lincoln said that the Founders, ‘meant to set up a standard maxim for free society, which should be familiar to all, and revered by all.’”

“Unalienable rights are at the core of who we are as Americans.  We abhor violations of these rights, whenever and wherever they are encountered.”

“American diplomats have always had this as one of their core causes. . . .  After World War II, the world looked to America to take the tradition of unalienable rights – which came to be called human rights – beyond our shores.”

“In 1948, thanks to our leadership, the United Nations adopted the Universal Declaration of Human Rights – a document inspired by our Constitution’s Bill of Rights.”

“And we need to remember this was the first time ever . . . that America led nations to set a standard for how governments should treat their people.  We even fought to protect unalienable rights of the people inhabiting nations we had just defeated.  We’ve done this repeatedly.  This wasn’t American imperialism, but rather it was American mercy and grace.  We knew it was right for them as well, and right for us.”

The State Department’s mission “is to promote and foster these unalienable rights so that they will abound, that they’ll be everywhere.  We have an entire bureau devoted to no task other than that one. . . . Every year, . . . [the Department’s diplomats] produce an exhaustive report of every human rights violation around the world.  It becomes the encyclopedia for all other governments to see, and you should know we spare no one.  We call them like we see them.  No other country does that.”

“We owe it to all Americans to uphold this noble tradition of American leadership to secure rights here at home and abroad.”

“We owe it to all Americans to uphold this noble tradition of American leadership to secure rights here at home and abroad.”

“Today, frankly, our children aren’t taught about the central role of unalienable rights in our schools in the way that they must be.”

“I’ve seen the media try and rewrite our history as an unrelenting tale of racism and misogyny, not as a bold but imperfect nation, an experiment in freedom.  We need to do that.”

“Our politicians too, from time to time, have framed pet causes as ‘rights’ to bypass the normal process by which political ends are achieved.  And we’ve blurred the distinction between and mere political preferences or priorities.” (Emphasis added.)

“International institutions have moved away from these core tenets as well. . . . One research group found that between the United Nations and the Council of Europe, there are a combined 64 human rights-related agreements and 1,377 provisions.” (Emphasis added.)

“And with respect to unalienable rights, we need to know that more, per se, is not always better.  We have to protect those things that are at the core, at the center, that are foundational.  Because when rights proliferate, we risk losing focus on those core unalienable rights, the ones that we would give everything for.” (Emphasis added.)

Now “there is far too little agreement anymore on what an unalienable right truly is.  Just because a treaty or a law or some writing says it’s a right, it doesn’t make it an unalienable right. Remember where these rights came from.” (Emphasis added.)

Last year “the UN Human Rights Council, at . . . [China’s] urging, adopted a resolution that called for nations ‘to work together to promote mutually beneficial cooperation in the field of human rights.’ It emphasized ‘genuine dialogue and cooperation…based on…mutual respect.’ This was, sadly, coded language for repressive regimes to establish a code of silence about their massive human rights violations, those that rival the worst human rights violations from our past century.” Only one country on the Council—the U.S.–voted against this resolution.

“We must reclaim the tradition of unalienable rights from deliberate misunderstanding and, indeed, from cynical abuse. [That was why I created the Commission on Unalienable Rights.] We know that if we don’t get the understanding of rights, as our founders understood them, correct – these set of inviolable freedoms, rooted in our nature, given by God, for all people, at all times – we will wander away from them.  And American security, and America’s place in the world will be diminished. So the commission’s mission is to help uphold America’s noble tradition of unalienable rights in this world that often violates them.” (Emphasis added.)[2]

But this Commission is not “our nation’s authoritative voice on human rights. Remember, too, the [U.N.’s] Universal Declaration [of Human Rights] was spearheaded by an American woman, Eleanor Roosevelt.  She once said, “Where, after all, do…human rights begin?  They begin in small places, [places] close to home.”

After the speech, in response to a question from the audience, Pompeo said the Trump Administration believes “that every human being should be protected from conception through end of life, natural end of life. . . . We’ve done our level best to prevent . . .taxpayer dollars [are not going to organizations that were promoting abortion.] It’s called the Mexico City Policy. . . . [W]e still want to support women’s health issues all around the world. . . .But we’ve been diligent in trying to protect the unborn in every dimension of American foreign policy, and we’ll continue to be.”

Reactions

There was a lot to like in this speech. The U.S. Declaration of Independence of 1776 is indeed very important for U.S. and world history, as is its assertion that certain rights come from God.  Also positive was his emphasizing the importance of the U.N.’s Universal Declaration of Human Rights.

On the other hand, Pompeo made assertions that do not sit well with this blogger. He reiterated his argument that now there are too many “pet causes” and “mere political preferences or priorities” being disguised as “rights” and that instead we need to eliminate such notions (especially the right to abortion) and return to “fundamental, universal rights.” In so doing, he again failed to recognize that immediately after the Declaration of Independence’s recitation of certain “unalienable rights,” it states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, this Declaration recognized that legislation would be necessary to secure or protect the unalienable rights and that in so doing the Declaration of 1776 could not anticipate everything that would happen in the future and prompt the people to ask their legislatures to  would provide additional rights.

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[1] State Dep’t, Pompeo Landon Lecture: In Defense of the American Rights Tradition (Sept. 6, 2019).

[2] This blog has published many posts about the Commission on Unalienable Rights.

 

Mexican Historian’s Disavowal of Support for Fidel Castro

Enrique Krauze, a Mexican public intellectual, historian, author, producer and publisher, has written at least two fascinating essays about U.S.-Cuba relations.

U.S. Cuba at the Start of Obama’s Opening to Cuba [1]

Less than a month after the December 17, 2014, joint announcement of the U.S.-Cuba decision to seek better relations, [2] Krauze wrote that “Cuba has been the epicenter of anti-Americanism in modern Latin America. As a political ideology it was born during the Spanish-American War of 1898 [3]  [and] reached its height with the victory of the Cuban Revolution in 1959.” Between those two years, “with some exceptions, the political, diplomatic and military balance sheet of the United States in Latin America was nothing short of disastrous.” In response, “the region . . . [had] a surge of nationalism.“

The success of the Cuban Revolution “opened a new cycle of intense anti-Americanism. . . . The rage thus engendered was the most effective weapon of survival for the repressive and dictatorial Cuban regime.” But the fall of the Berlin Wall in 1989 and the rise of democratic governments in some Latin American countries resulted in the [orphaning] of Latin American Marxists. “Only the great obstacle of the American boycott of Cuba has remained an outmoded and divisive force.”

“In [Obama’s] re-establishing relations with Cuba, the United States renounced its ‘imperial destiny’ and recovers much of the moral legitimacy needed to uphold the democratic values that led to its foundation (and also of the countries of Latin America). Obama’s action is meant for the good of all the Americas, including the United States. And freedom of expression in Cuba is an absolute necessity for its success. No people or country is an island unto itself. The Castro dynasty has kept Cuba as such for 56 years.”

Moreover, “acclaim for the [new] agreement is widespread in Latin America. By his historic announcement on Dec. 17, Obama has begun to dismantle one of the most deeply rooted ideological passions of the southern continent” and may have “begun the final decline” of Anti-Americanism in Latin America.

Krauze’s Disavowal of Fidel Castro [4]

According to Krauze, the triumph of the Cuban Revolution in 1959 “inspired political awareness in almost all the [Mexican] writers, activists and intellectuals of my generation [including Krauze himself]. Our university professors, contemporaries of Castro, saw in him the definitive vindication of [José Marti’s] ‘Our America’ against the other, arrogant and imperialist, America. The literary supplements and magazines we read — by Julio Cortázar, Mario Vargas Llosa, Gabriel García Márquez, Carlos Fuentes — celebrated the Revolution not only for its economic and social achievements, but also for the cultural renaissance it ushered in.”

Krauze’s enthusiasm for Fidel Castro turned to disappointment in 1968-69 when Cuba supported the Soviet invasion of Czechoslovakia while Mexican tanks were combatting student movements in Mexico. Yet it still was difficult in Mexico to criticize Cuba.

In 1980 Krauze had his “final break with Fidel Castro” when “hundreds of people stormed the Peruvian embassy in Havana, seeking asylum” and “more than 100,000 Cubans left the port of Mariel for the United States, revealing a fracture in Castro’s utopia.”

In July 2009 Krauze visited Cuba “and was captivated by its natural beauty and the ingenuity and warmth of its people” and discovered in books that before the Revolution, “Cuba had a rich and diversified economy. In 1957, Cuba had around 6,000,000 heads of cattle, well above the world’s per capita average. . . . [In short] Cuba was already one of the most advanced countries in Latin America in 1959.”

But in 2009, “cows are so scarce that killing one carries a multiyear prison sentence. Not too long ago, in order to eat beef legally, farmers ‘accidentally’ sacrificed them by tying them to train tracks.”

At his trial in 1953, “Fidel famously declared, ‘History will absolve me.’ That’s no longer a sure thing. An awareness of freedom awakens sooner or later when faced with the obvious excesses of authoritarian rulers. If history examines his regretful legacy through that lens, it may not absolve him.”

With few exceptions, “Latin American historians and intellectuals . . . have refused to see the historical failure of the Cuban Revolution and the oppressive and impoverishing domination of their patriarch. But the parlous situation in Venezuela — with Cuba as a crutch — is undeniable, and the Cuban reality will be increasingly hard to bear. This has been Lenin’s decade. Perhaps the next one will belong to [Cuban patriot José] Martí.”

President Obama’s opening to Cuba in December 2014 inspired hopes that this would come to pass. “Unfortunately, the current president of the United States, Donald Trump, has marred any possibility of conciliation, which has further isolated Cuba and so perpetuated Castroism.”

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[1] Krauze, End of Anti-Americanism?, N.Y. Times (Jan. 7, 2015).

[2] U.S. and Cuba Embark on Reconciliation, dwkcommentaries.com (Dec. 21, 2014).

[3] U.S. Intervention in Cuba’s War of Independence from Spain, 1898, dwkcommentaries.com (Aug. 26, 2019); U.S. De Facto Protectorate of Cuba, 1898-1934, dwkcommentaries.com (Aug. 27, 2019).

[4] Krauze, My Sixty Years of Disappointment with Fidel Castro, N.Y. Times (Aug. 21, 2019

U.S. De Facto Protectorate of Cuba, 1898-1934

Prior posts have discussed the 1898 U.S. intervention in the Cuban war of independence from Spain in what the U.S. has called the Spanish-American War. Although the fighting in that war ended in August 1898 and the war officially ended by the Treaty of Paris of December 10, 1898, U.S. troops remained on the island and Cuba came under the dominance of the U.S. [1]

That became official in 1901 with the Platt Amendment to an Army Appropriations Bill and with Cuba reluctantly amending its constitution on Christmas Day (December 25, 1901) to include these provisions of the Platt Amendment:

  • “The government of Cuba consents that the [U.S.] may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the [U.S.], now to be assumed and undertaken by the government of Cuba.”
  • The “government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgement in or control over any portion of said island.”
  • The Cuban “government shall not assume or contract any public debt, to pay the interest upon which, and to make reasonable sinking fund provision for the ultimate discharge of which, the ordinary revenues of the island, after defraying the current expenses of government shall be inadequate.”
  • All “acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected.”
  • The Cuban “government . . . will execute, and as far as necessary extend, the plans already devised or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the southern ports of the United States and the people residing therein.”
  • To “enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations at certain specified points to be agreed upon with the President of the United States.”

These same provisions of the Platt Amendment also were included in the May 22, 1903, Cuban–American Treaty of Relations of 1903.

This treaty was used as justification for the U.S.’ Second Occupation of Cuba from 1906 to 1909 that was initiated on September 29, 1906, by Secretary of War (and future U.S. president) William Howard Taft,  when he established the Provisional Government of Cuba under the terms of the treaty and declared himself its Provisional Governor. On October 23, 1906, President Theodore Roosevelt issued Executive Order 518, ratifying that order by Taft.

These Cuban constitutional provisions lasted until May 29, 1934, when the U.S. and Cuba signed the 1934 Treaty of Relations that in its first article abrogated the 1903 Treaty of Relations and thereby allowed Cuba to delete these constitutional provisions. This marked the official end of the US de facto protectorate.

Cuba’s Lease of Guantanamo Bay to the U.S.

It was in this context of the de facto U.S. protectorate that Cuba in 1903 leased to the US Guantanamo Bay and an island at the western end of Cuba “for the time required for use as coaling or naval stations only, and for no other purpose.” The annual rent was $2,000 “in gold coin of the United States.”

In early 1933, in order to fight severe deflation Congress and President Franklin D. Roosevelt implemented a series of Acts of Congress and Executive Orders which suspended the U.S. gold standard except for foreign exchange, revoked gold as universal legal tender for debts, and banned private ownership of significant amounts of gold coin.

In 1934, the U.S. recalculated the gold equivalent rent for Guantanamo at $3,386. In 1973 the US recalculated the rent at $3,676 and in 1974 at $4,085, which has been used to this day.

Except for the first year (1959) of Revolutionary Cuba, Cuba has refused to cash the U.S. annual rental checks. When Fidel was president, he kept them in a desk drawer and loved to show them to visitors. Now they all are in a Havana vault somewhere.

But this 1903 lease is still the legal basis for the U.S.’ continued use to this day of Guantanamo.

The original $2,000 rent in 1903 would be $55,709 in today’s dollar while in gold it would be $309,869. But it never officially has been changed.

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[1]  U.S. Intervention in Cuba’s War of Independence, 1898, dwkcommentaries.com (Aug. 26, 2019); U.S. Entry Into Cuban War of Independence and Establishment of Protectorate of Cuba, 1898-1934, dwkcommentaries.com (April 23, 2017).