Eleanor Roosevelt – dwkcommentaries

Reactions to November 1, 2019, Meeting of U.S. Commission on Unalienable Rights

A prior post reviewed the substance of the November 1, 2019, meeting of the U.S. Commission on Unalienable Rights. Now this blogger will set forth his reactions to this meeting.

Reactions to Professor Sunstein

Although I had studied American history many years ago in college and am generally familiar with the subject, I had no knowledge of President Franklin D. Roosevelt’s Second Bill of Rights in his State of the Union Address of 1944 that was prominent in Professor Sunstein’s presentation. Therefore, I searched and found the text and context of that Address [1] which are highlighted below.

1. FDR’s State o the Union Address, 1944

President Roosevelt said he had joined the leaders of the United Kingdom, Russia and China in agreeing that “the one supreme objective for the future” was “security,” meaning “not only physical security which provides safety from attacks by aggressors,” but also “economic security, social security, moral security —in a family of Nations.”

“This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable [sic] political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.” (Emphasis added.)

“As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.” (Emphasis added.)

“We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.” (Emphasis added.)

“In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed. Among these are:” (Emphasis added.)

“The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.”

“All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.”

“America’s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for all our citizens. For unless there is security here at home there cannot be lasting peace in the world.”

Blogger’s comments: This set of rights was incorporated into the UDHR under the leadership of the President’s widow, Eleanor Roosevelt, in 1948 and in the International Covenant on Economic, Social and Cultural Rights that was signed by Presdient Jimmy Carter in 1977, but has , to date, not been ratified by the U.S. Senate.[2] Instead, these issues have been subjects of many proposed, and some adopted, federal statutes.

This FDR speech thus implicitly recognized that the U.S. Declaration of Independence did not attempt to set forth a complete list of “unalienable rights” as of July 4, 1776, nor did it foreclose subsequent articulation of additional unalienable rights.

Reactions to Professor Patterson

I was baffled by Patterson’s assertion that freedom was a tripartite idea: (1) Individuals are free to make choices and do what they want to do; (2) individuals are free to exercise power to influence other people; and (3) individuals are free to share in the collective power of groups. In addition, Patterson said, in the western world freedom is one of the principal values of civilization due to Christianity.

Freedom, Patterson said, has no claim to equality, and elites have opposed rights held by the masses. Moreover, although Patterson retains great love and respect for the concept of freedom, he thinks it is a mistake for the West to proclaim it to the world and try to convert others into showing similar reverence. Rhetorically speaking, rights are more effective tools to achieve similar ends.”

Frankly, I do not see how Patterson’s comments have any impact on the unalienable rights discussion. I invite others to help me understand this presentation.

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[1] President Franklin D. Roosevelt’s State of the Union Address (Jan. 11, 1944); Second Bill of Rights, Wikipedia.

[2] Multilateral Human Rights Treaties Signed, But Not Ratified, by U.S., dwkcommentaries.com (Feb. 12, 2013)..

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.”

“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.

The Importance of the Universal Declaration of Human Rights

As has been noted in a post about the recent launching of the new U.S. Commission on Unalienable Rights, U.S. Secretary of State Mike Pompeo made the following favorable comments about the Universal Declaration of Human Rights (UDHR): “The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” [1] (Emphasis added.)

In addition, the Commission’s chair, Mary Ann Glendon, has written a marvelous book about the UDHR: A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). [2] In her Preface, she says this Declaration “became a pillar of a new international system under which a nation’s treatment of its own citizens was no longer immune from outside scrutiny. . . . Today, the Declaration is the single most important reference point for cross-national discussions of how to order our future together on our increasingly conflict-ridden and interdependent planet.” (Emphasis added.) Her book’s Epilogue emphatically states:

“The Universal Declaration created a bold new course for human rights by presenting a vision of freedom as linked to social security, balanced by responsibilities, grounded in respect for equal human dignity, and grounded by the rule of law.”
“The Declaration’s principles, moreover, have increasingly acquired legal force, mainly through their incorporation into national legal systems.”
“One of the most basic assumptions of the founders of the UN and the framers of the Declaration was that the root causes of atrocities and armed conflict are frequently to be found in poverty and discrimination.” (Emphases added.)

Therefore, the following brief summary of the UDHR should assist in understanding the upcoming work of the Commission.

The History of the UDHR

The Charter of the United Nations entered into force on October 24, 1945. Its Preamble stated, in part, that the U.N. was created “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 “to promote social progress and better standards of life in larger freedom.” And one of its stated purposes was “To achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” (Art. 1(3)) The Charter also established the Economic and Social Council (Ch. X), which was to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.” (Art. 62(2))

In June 1946, that Economic and Social Council established the Commission on Human Rights, comprising 18 members from various nationalities and political backgrounds. The Commission then established a special Universal Declaration of Human Rights Drafting Committee, chaired by Eleanor Roosevelt, to write the Declaration. The Committee met in two sessions over the course of two years to consider that proposed instrument with Canadian John Peters Humphrey, Director of the Division of Human Rights within the U.N. United Nations Secretariat, as the principal drafter of the UDHR along with a committee that included René Cassin of France, Charles Malik of Lebanon, and P. C. Chang of the Republic of China. Once the Committee finished its drafting in May 1948, the draft was further discussed by the U.N. Commission on Human Rights, the U.N. Economic and Social Council, and the Third Committee of the General Assembly. During these discussions many amendments and propositions were made by UN Member States.

On December 10, 1948, the U.N. General Assembly at a meeting in Paris, France adopted the Universal Declaration of Human Rights (UDHR) by a vote of 48-0. Eight other countries abstained: the Soviet Union, five members of the Soviet bloc (Byelorussia, Czechoslovakia, Poland, Ukraine and Yugoslavia), South Africa and Saudi Arabia. The other two U.N. members at the time were absent and not voting (Honduras and Yemen).[3]

Selected Provisions of the UDHR

Many of this Declaration’s words in its Preamble and 30 Articles are reminiscent of the language of the U.S. Declaration of Independence of July 4, 1776. Here are some of those words in the U.N. document:

“[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” (Preamble)
“[H]uman rights should be protected by the rule of law.” (Preamble)
The “peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.” (Preamble)
N. “Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.” (Preamble)
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (Art. 1)
“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other s” (Art. 2)
“Everyone has the right to life, liberty and security of person.” (Art.3)
“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” (Art. 7)
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” (Art. 18) (Emphases added.)

Legal Status of the UDHR

As a resolution of the U.N. General Assembly, the UDHR is not legally binding on U.N. members. As Mr. Justice Souter stated in an opinion for the U.S. Supreme Court, “the [Universal] Declaration does not of its own force impose obligations as a matter of international law.”[4] Instead, like the U.S. Declaration of Independence, the UDHR was an inspiration and prelude to the subsequent preparation and adoption of various multilateral human rights treaties as well as national constitutions and laws.

Conclusion

On December 10, 1978, the 30^th anniversary of the UDHR’s adoption, President Jimmy Carter said this Declaration “and the human rights conventions [treaties] that derive from it . . . are a beacon, a guide to a future of personal security, political freedom, and social justice. . . . The Universal Declaration means that no nation can draw the cloak of sovereignty over torture, disappearances, officially sanctioned bigotry, or the destruction of freedom within its own borders. . . . Our pursuit of human rights is part of a broad effort to use our great power and our tremendous influence in the service of creating a better world, a world in which human beings can live in peace, in freedom, and with their basic needs adequately met.”[5]

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[1] Here are other posts about the Commission: Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019); More Comments About the Commission on Unalienable Rights (July 9, 2019).

[2] The Glendon book discusses the history of the drafting of the Declaration and includes copies of the various drafts.

[3] U.N., Universal Declaration of Human Rights (Dec. 10, 1948), UN Gen. Assembly Res. 217A, Doc A/810 at 71;Universal Declaration of Human Rights, Wikipedia; Kentonspecial, Human Rights Declaration Adopted by U.N. General Assembly; U.N. VOTES ACCORD ON HUMAN RIGHTS, N.Y. Times (Dec. 11, 1948).

[4] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); Sosa v. Alvarez-Machain, Wikipedia.

[5] Excerpts From Carter’s Speech on Anniversary of Human Rights Declaration, N.Y. Times (Dec. 10, 1978).

U.S. Commission on Unalienable Rights Is Launched

On July 8, 2019, the U.S. State Department launched its Commission on Unalienable Rights.[1]

Secretary of State Pompeo’s Remarks

At the launch Secretary of State Michael Pompeo said “the Trump administration has embarked on a foreign policy that takes seriously the founders’ ideas of individual liberty and constitutional government. Those principles have long played a prominent role in our country’s foreign policy, and rightly so. But as that great admirer of the American experiment Alex de Tocqueville noted, democracies have a tendency to lose sight of the big picture in the hurly-burly of everyday affairs. Every once in a while, we need to step back and reflect seriously on where we are, where we’ve been, and whether we’re headed in the right direction, and that’s why I’m pleased to announce today the formation of a Commission on Unalienable Rights.”

The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” (Emphasis added.)

“With the indispensable support of President Ronald Reagan, a human rights revolution toppled the totalitarian regimes of the former Soviet Union. Today the language of human rights has become the common vernacular for discussions of human freedom and dignity all around the world, and these are truly great achievements.”

“But we should never lose sight of the warnings of Vaclav Havel, a hero of the late-20th-century human rights movement, that words like ‘rights’ can be used for good or evil; ‘they can be rays of light in a realm of darkness … [but] they can also be lethal arrows.’ And as Rabbi Jonathan Sacks has observed, the evils of any time and place will be justified in whatever is the dominant discourse of that time and of that place. We must, therefore, be vigilant that human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes.”

“It’s a sad commentary on our times that more than 70 years after the Universal Declaration of Human Rights, gross violations continue throughout the world, sometimes even in the name of human rights. International institutions designed and built to protect human rights have drifted from their original mission. As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect. Nation-states and international institutions remain confused about their respective responsibilities concerning human rights.” (Emphasis added.)

“With that as background and with all of this in mind, the time is right for an informed review of the role of human rights in American foreign policy.” (Emphasis added,)

The Secretary hopes that the Commission “will revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us? Is it, in fact, true, as our Declaration of Independence asserts, that as human beings, we – all of us, every member of our human family – are endowed by our creator with certain unalienable rights? (Emphasis added.)

To put it another way, “the commission’s charge is to point the way toward that more perfect fidelity to our nation’s founding principles. . . .” (Emphasis added.)

Secretary Pompeo’s Prior Wall Street Journal Article[2]

The day before the Department’s launching of the Commission. Secretary Pompeo published an article about the Commission in the Wall Street Journal, in which he made the following comments beyond what he said at the official launch.

“America’s Founders defined unalienable rights as including ‘life, liberty, and the pursuit of happiness.’ They designed the Constitution to protect individual dignity and freedom. A moral foreign policy should be grounded in this conception of human rights.”

“Yet after the Cold War ended, many human-rights advocates turned their energy to new categories of rights. These rights often sound noble and just. But when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights granted by governments. Unalienable rights are by nature universal. Not everything good, or everything granted by a government, can be a universal right. Loose talk of ‘rights’ unmoors us from the principles of liberal democracy.” (Emphasis added.)

He hopes “that its work will generate a serious debate about human rights that extends across party lines and national borders.” It “will address basic questions: What are our fundamental freedoms? Why do we have them? Who or what grants these rights? How do we know if a claim of human rights is true? What happens when rights conflict? Should certain categories of rights be inextricably ‘linked’ to other rights?”

“The human-rights cause once united people from disparate nations and cultures in the effort to secure fundamental freedoms and fight evils like Nazism, communism and apartheid. We have lost that focus today. Rights claims are often aimed more at rewarding interest groups and dividing humanity into subgroups.” (Emphasis added.)

“Oppressive regimes like Iran and Cuba have taken advantage of this cacophonous call for ‘rights,’ even pretending to be avatars of freedom. No one believed the Soviet call for collective economic and civil rights was really about freedom. But after the Cold War ended, many human-rights advocates adopted the same approach, appealing to contrived rights for political advantage.” (Emphases added.)

“The commission’s work could also help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions. Many have embraced and even accelerated the proliferation of rights claims—and all but abandoned serious efforts to protect fundamental freedoms.” (Emphasis added.)

“Human-rights advocacy has lost its bearings and become more of an industry than a moral compass. And ‘rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.” (Emphasis added.)

Announcement of Commission’s Chair

On July 8, the Secretary announced that the Chair of the Commission will be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, among many honors.

Professor Glendon acknowledged this appointment with the following remarks:

“Secretary, I am deeply grateful for the honor of chairing this new commission, and I wanted to thank you especially for giving a priority to human rights at this moment when basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators. At the same time, I understand that the mission that you have set us is a challenging one. You’ve asked us to work at the level of principle, not policy, and you’ve asked us to take our bearings from the distinctive rights tradition of the United States of America, a tradition that is grounded in the institutions without which rights would not be possible: constitutional government and the rule of law. I want to assure you, Mr. Secretary, that we will do our very best to carry out your marching orders and to do so in a way that will assist you in your difficult task of transmuting principle into policy.”

Announcement of Nine Other Commission Members

The Secretary also announced the appointment of the following nine additional members of the Commission. (The Commission’s Charter calls for 15 members so there may be an additional five members to be named later.)[3]

Russell Berman. He is the Walter A. Haas Professor in the Humanities at Stanford University, a Senior Fellow at the Hoover Institution and co-chair of its Working Group on Islamism and the International Order. Recently he has written about the reemergence of anti-Semitism and China’s “programmatic efforts to suppress the ethnic identity of the Uighur people” of Islamic faith.

Peter Berkowitz. He is the Ted and Dianne Taube Senior Fellow at the Hoover Institution and a member of its Military History/Contemporary Conflict Working Group and a member of the State Department’s Policy Planning Staff. He “studies and writes about, among other things, constitutional government, conservatism and progressivism in the United States, liberal education, national security and law, and Middle East politics.”

Paolo Carozza. He is Professor of Law and Political Science at the University of Notre Dame and Director of its Kellogg Institute for International Studies an interdisciplinary, university-wide body “focusing on the themes of democracy and human development.” His expertise is in the areas of comparative constitutional law, human rights, law and development and international law. From 2006 through 2010 he was a member of the Inter-American Commission on Human Rights, the principle international body for protecting human rights in the Western Hemisphere, and he also has served the Holy See in various capacities.

Hamza Yusuf Hanson. He is an American Islamic scholar, proponent of classical Islamic sciences and founder of Zaytuna College, a Muslim liberal arts college in Berkeley, California. According to The New Yorker Magazine, he is “perhaps the most influential Islamic scholar in the Western world.” He was born in the U.S. as Mark Hanson and grew up a practicing Greek Orthodox Christian, but at age 19 he read the Qur-an and converted to Islam.

Jacqueline C. Rivers. She is Lecturer on Sociology at Harvard University. She holds B.A. and Ph. D degrees with honors from Radcliffe College and Harvard and has served as Doctoral Fellow in the Multidisciplinary Program in Inequality and Social Policy of the Harvard’s J. F. Kennedy School of Government and a Graduate Research Fellow of the National Science Foundation. Rivers, an African-American, also is the Executive Director of the Seymour Institute on Black Church and Policy Studies, which seeks to create and promote a philosophical, political and theological framework for a pro-poor, pro-life, pro-family movement within the ecumenical Black Church both domestically and internationally.

Meir Soloveichik. He is an American Orthodox rabbi with a Ph.D. degree in religion from Princeton University. He has written extensively about Jewish thought and life, the relationship between Judaism and Christianity and the limits of interfaith dialogue. In 2012 he gave the opening invocation at the Republican National Convention.

Katrina Lantos Swett. She is the former chair of the U.S. Commission on International Religious Freedom and now the President of the Lantos Foundation for Human Rights, which is named in honor of her father, a Holocaust survivor and former Democratic Congressman. She is married to Richard Swett, former Ambassador to Denmark and former Congressman, and she converted to his faith, The Church of Jesus Christ of Latter-day Saints. She has been an unsuccessful Democratic candidate for the U.S. House of Representatives and Senate.

Christopher Tollefsen. He is the University of South Carolina’s College of Arts and Sciences Distinguished Philosophy Professor with specialization in moral philosophy, natural law ethics, practical ethics and bioethics. He has written many articles for “Public Discourse,” the journal of the Witherspoon Institute, which seeks to promote public understanding of the moral foundations of free societies. He also is a co-author of Embryo: A Defense of Human Life and the editor of John Paul II’s Contribution to Catholic Bioethics.

David Tse-Chien Pan. He is Professor of German at University of California, Irvine. His research has focused on the problem of aesthetic experience as a mediator of human history in order to understand how history develops through a process of recollection and interpretation that depends on judgment and takes the reception of works of art as its model.

Reactions

Secretary Pompeo’s Wall Street Journal article for the first time really sets forth what has been speculated as the Commission’s true mission: redefinition and narrowing of international human rights.

A senior State Department official, in a report by CBS News, made the same point, perhaps more diplomatically, when he said the Commission will act like a “study group, examining the concept of universal human rights, where those rights come from and the difference between inherent rights and those prescribed by governments. . . . Unalienable rights are granted to everyone, everywhere, at all times. It doesn’t matter if you’re straight or gay, or a man or a woman, or black, white, brown or purple.’”

However, this official said, topics like abortion and gay marriage will not be part of the panel’s agenda. ‘Women’s rights or gay rights or healthcare rights, those are domestic issues.’ At some point gay marriage might be considered one of those, but this is an issue that’s being worked out on a nation-state level.’”

The importance of this Commission from the Trump Administration’s standpoint is underscored by the impressive resumes of its Chairperson and its initial other members. Therefore, advocates for the existing body of international human rights law need to prepare to combat this onslaught.

Amnesty International USA immediately said there was no reason for such a review given the decades-old protections in place and that the use of the word “unalienable” might be a code word to narrow human rights to the Founders’ notions of the late 18^th century. Similar thoughts were expressed by the American Civil Liberties Union: “taxpayer resources would be better spent assessing the administration’s failure to meet basic human rights obligations, rather than redefining those rights.”

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[1] State Dep’t, Secretary of State Michael R. Pompeo Remarks to the Press (July 8, 2019); Sullivan & Wong, State Department Creates Advisory Panel on Human Rights, N.Y. Times (July 8, 2019); Reuters, Pompeo Launches Panel to Review Human Rights in U.S. Foreign Policy, N.Y. Times (July 8, 2019)(notes Trump Administration’s U.N. actions against sexual and reproductive health measures); Assoc. Press, Trump Administration Reviews Human Rights’ Role in US Policy, N.Y. Times (July 8, 2019). Previous posts to this blog have discussed this Commission: Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019).

[2] Pompeo, Unalienable Human Rights and U.S. foreign Policy, W.S.J. (July 7, 2019).

[3] Another source listed two possible additional members of the Commission: Kiron Skinner and F. Cartwright Weiland. Skinner is the Director of Policy Planning at the State Department and a former Research Fellow at Stanford University’s Hoover Institution and a professor at Carnegie Mellon University. Weiland is a current or former chief speechwriter for Senator John Cornyn and Republican Whip (Rep., TX) and/or Policy Analyst at Texas Conservative Coalition Research Institute. (Ruffini, Mike Pompeo unveils new “Unalienable Rights” commission amid concerns over progressive rollbacks, CBS News (July 8, 2019).)

Beschloss Discusses “Presidents of War” at Westminster Town Hall Forum

On November 13, only one week after the U.S. mid-term election, Michael Beschloss appeared before an overflow crowd at Minneapolis’ Westminster Town Hall Forum to discuss his recent book, Presidents of War: 1807 to Modern Times.[1] Below are photographs of Beschloss and the Westminster Sanctuary before the arrival of the crowd.

The Presidents of War

He made the following brief comments about the eight presidents of war who are covered in his book.

President James Madison and the War of 1812. This was the first and the most unpopular war in U.S. history, climaxed by the British burning of the White House and Madison’s escaping to Virginia in August 1814. (The book covers this in the Prologue and Chapters Two and Three.)

President James Polk and the Mexican-American War (1846 1848). This war was started by the U.S. on the U.S.false assertion that Mexico had ambushed and killed an American soldier in the new state of Texas. The U.S. won the war and acquired more than 500,000 square miles of Mexican territory extending west of the Rio Grande River to the Pacific Ocean.(This is covered in Chapters Four and Five.)

President Abraham Lincoln and the Civil War (1860-1865). Lincoln was the best president of war. Initially he was not a crusader and instead an enforcer of the constitutional ban on secession, which was not a popular message. Later with the Gettysburg Address and the Second Inaugural Address he made it a moral crusade against slavery and the people began to follow Lincoln. (This is covered in Chapters Six and Seven.)

President William McKinley and the Spanish-American War, 1898. This was another war started on a false assertion: Spain had blown up the USS Maine in the Havana Harbor, when in fact it was caused by an exploding boiler in the ship. This war resulted in the U.S.’ acquiring the Philippines, Puerto Rico and Guam from Spain and de facto control of Cuba. (This is covered in Chapters Eight and Nine of the book.)[2]

President Woodrow Wilson and World War I, 1917-1918. In his re-election campaign of 1916, Wilson’s slogan was “He kept us out of war,” but in April 2017 he had Congress declare war after German attacks on U.S. ships. In his well-meaning campaign for the League of Nations, Wilson made a lot of mistakes. (This is covered in Chapters Ten and Eleven.)

President Franklin D. Roosevelt and World War II, 1941-1945. Before the Japanese bombing of Pearl Harbor on December 7, 1941, FDR gave very few speeches about the war in Europe, and there was strong U.S. public opinion against entering the war on the belief that World War I had been a mistake. Immediately after the bombing of Pearl Harbor, however, the Congress declared war against Japan, the last time the U.S. declared war under the Constitution. FDR learned from the war with the exception of treatment of Japanese-Americans. (this is covered in Chapters Twelve and Thirteen.)

President Truman and the Korean War (Conflict), 1950-1953. According to Beschloss, Truman had read and written some history and had said one “could not be president without knowing history” and “every leader must be a reader.”(This is covered in Chapters Fourteen and Fifteen.)

President Lyndon Johnson and the Vietnam War, 1963-1969. This is another war started on a false U.S. assertion: the Vietnamese had attacked a U.S. ship in the Gulf of Tonkin, which lead to a congressional resolution supporting military action. The White House audio tapes of LBJ’s conversations revealed important information: (a) Senator Richard Russell urged LBJ to get out of the war; (b) Secretary of Defense McNamara urged LBJ to get involved, thereby disproving McNamara’s later denials of same; (c) LBJ came to believe that this was a war the U.S. could not win and could not lose; and (d) LBJ rejected the advice of General Westmoreland to use nuclear weapons in the war. (This was discussed in Chapters Sixteen and Seventeen of the book.)

Commonalities of the Presidents of War

Beschloss identified two common characterizes of these presidents.

First, they all became more religious during their wars. Lincoln before the Civil War was a sceptic or agnostic, but during the war regularly read the Bible and talked about wars being “oceans of blood” that prompted his seeking biblical guidance for sending young men to their death. Lyndon Johnson before the war was not a regular church-goer, but during the war, his daughter Lucy Baines Johnson Turpin, who had become a Roman Catholic, regularly and confidentially took LBJ to mass , and Lady Bird Johnson was heard to say he might convert to Catholicism.

Second, they all were married to strong women who gave good advice. In 1942 FDR was considering internment of Japanese-Americans, and Eleanor warned him strongly not to do so. The subsequent internment caused a major rupture in their marriage.

In response to a question about whether any of the war presidents had military experience, he did not state the obvious: they had not except for Truman in World War I. Instead, he said that President Eisenhower, who is not covered in the book even though he presided over the end of the Korean War, had the “perfect” military experience resulting from his military education and training and command responsibility during World War Ii that provided him with the knowledge of the ends and means, the costs and the unpredictability of war.[3]

The President of Peace

In response to a question, Beschloss identified only one president of peace:. President Thomas Jefferson in 1807 resisted public pressure to go to war with Great Britain over an attack by its ship (The Leopard) against a U.S. frigate (The Chesapeake) in the Atlantic Ocean off the coast of Virginia that killed three U.S. sailors and wounded eight others. (This is discussed in Chapter One of the book.)

Advice to U.S. Citizens

All presidents need wisdom, courage and judgment. They need to be moral leaders.

Citizens, Senators and representatives need to evaluate and criticize presidents on important issues, especially those of war and peace.

In his book’s Epilogue, Beschloss says “the framers of the Constitution had dreamt that war would be a last resort under the political system they had invented. Unlike in Great Britain and other monarchies and dictatorships of old, it would be declared by Congress, not the chief of State.” Yet “the notion of presidential war took hold step by step.” We as citizens need to insist on obeying the Constitution and requiring congressional declarations of war.

Beschloss Biography

Beschloss is an award-winning author of nine books on presidential history. He is the presidential historian for NBC News and a contributor to PBS NewsHour. A graduate of Williams College and Harvard Business School, he has served as a historian for the Smithsonian Institution, as a Senior Associate Member at St. Antony’s College, Oxford, and as a Senior Fellow of the Annenberg Foundation. His books on the presidency include, among others, The Crisis Years: Kennedy and Khrushchev, 1960-1963; The Conquerors: Roosevelt, Truman and the Destruction of Hitler’s Germany; and Presidential Courage: Brave Leaders and How They Changed America, 1789-1989. His latest book, Presidents of War, was published in October. He is the recipient of the Harry S. Truman Public Service Award, the New York State Archives Award, and the Rutgers University Living History Award. He is a trustee of the White House Historical Association and the National Archives Foundation and a former trustee of the Thomas Jefferson Foundation.

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[1] Westminster Town Hall Forum, Michael Beschloss, Presidents of War: 1807 to Modern Times (Nov. 13, 2018) (the website also includes a livestream of the lecture and Q & A); Black, ‘Presidents of War’: Historian Michael Beschloss on leaders who’ve taken U.S. into battle, MinnPost (Nov. 14, 2018); Barnes & Noble, Presidents of War (2018).

[2] Before 1898, the U.S. had a desire to own or control Cuba that was promoted by by U.S. slaveholders desiring support of Cuban slaveholders, and after U.S. entry in 1898 into the Second Cuban War of Independence (what we call the Spanish-American War) and the U.S. defeat of the Spanish, the U.S. made Cuba a de facto protectorate that lasted until 1934. Since the 1959 overthrow of Batista by the Cuban Revolution, of course, the two countries have had a contentious relationship, including the U.S. Bay of Pigs invasion of 1961 and the Cuban Missile Crisis of 1962 that nearly erupted into war. (See posts listed in the “ U.S.-Cuba History, 1989-2010” section of List of Posts to dwkcommentaries—Topical: CUBA.

[3] Another U.S. president with wartime experience, including injuries, was John F. Kennedy, who during the Cuban Missile Crisis of 1962 helped to steer the U.S. out of a possible nuclear war with the USSR over its missiles in Cuba. (See posts listed in the “ U.S.-Cuba History, 1989-2010” section of List of Posts to dwkcommentaries—Topical: CUBA.

Cuba and U.S. Have Same Concept of International Human Rights

Recent Cuban statements about its human rights often state or suggest that Cuba’s concept of international human rights is different and broader than the U.S.’s. According to Cuba, its includes economic, social and cultural rights while the U.S.‘s does not.

That is an incorrect assertion or belief.

Modern History of International Human Rights [1]

An examination of the modern history of this subject shows that the United States was the leading architect of what we now know as international human rights, including economic, social and cultural rights.

During World War II, U.S. President Franklin D. Roosevelt (FDR) on several occasions spoke about the world’s need for such rights. In his State of the Union Address (or the “Four Freedoms” Speech) to the Congress on January 6, 1941 (before U.S. entry in that war), he said one of these four freedoms was “freedom from want, which . . . means economic understandings which will secure to every nation a healthy peace time life for its inhabitants–everywhere in the world.”

Three years later, in his January 11, 1944, State of the Union Address, Roosevelt expanded this thought with these words:

“We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictators are made.”
“In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race or creed.” Among these rights are [he following:
“The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;”
“The right to earn enough to provide adequate food and clothing and recreation;”
“The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;”
“The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;”
“The right of every family to a decent home;”
“The right to adequate medical care and the opportunity to achieve and enjoy good health;”
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;”
“The right to a good education.”
“All of these rights spell security. . . . [W]e must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.”
“America’s rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world.”

After the end of World War II in 1945, the U.S. was one of the principal leaders in the drafting [2] and the unanimous adoption of the United Nations Charter on June 26, 1945, at the conclusion of the United Nations Conference on International Organization in San Francisco, California. Both the U.S. and Cuba attended this Conference and voted to adopt the Charter. Two days later (June 28^th) the U.S. Senate, 89-2, gave its advice and consent to U.S. ratification of that treaty. Its Article 55 provides:

The U.N. “shall promote: higher standards of living, full employment, and conditions of economic and social progress and development; solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” In addition Article 56 provides that all members pledge “to take joint and separate action . . . for the achievement of the purposes set forth in Article 55.”

The United Nations itself came into existence on October 24, 1945; its original members included the U.S. and Cuba.

Eleanor Roosevelt & Universal Declaration

One of the first tasks of the U.N. under its Charter was the preparation of what became the Universal Declaration of Human Rights that was adopted by the U.N. General Assembly on December 10, 1948. (The vote was 48 to 0 with 8 abstentions; both the U.S. and Cuba voted for adoption.) The chair of the committee that drafted this document was Eleanor Roosevelt, the widow of FDR. [3]

The Declaration provides in Article 22:

“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.”

The Declaration also proclaims that everyone has the rights to work and join trade unions (Art. 23), rest and leisure (Art. 24), an adequate standard of living (Art. 25), education (Art. 26) and participate freely in cultural life (Art. 27).

The Declaration, however, is inspirational and aspirational. It is not a treaty that creates rights for individuals and obligations of states. As a result, the U.N. Commission on Human Rights then had the task of preparing a treaty to cover the rights covered by the Declaration.

The Commission’s committee that was assigned this task initially intended to create just one such treaty, but soon decided to prepare two treaties: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which were unanimously adopted by the U.N. General Assembly in December 1966. [4] Together with the Universal Declaration of Human Rights, they are known collectively as the International Bill of Human Rights.

As the first treaty’s title—Civil and Political Rights–suggests, it covers civil and political rights and is reminiscent of the U.S. Bill of Rights.

The second treaty—Economic Social and Cultural Rights–again as its title suggests, has provisions relating to economic, social and cultural rights, but its Article 2(1) states that each party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (Emphasis added.)

In summary, the U.S. was a major advocate for, and participant in, creating international economic, social and cultural rights. Cuba, on the other hand, mostly before its Revolution, was not so intimately involved although it voted for adoption of the U.N. Charter, the Universal Declaration and the above two treaties.

U.S. Responses to the International Bill of Rights

The U.S. has signed and ratified the ICCPR. Although it signed the ICESCR in 1977, the U.S. has not ratified this treaty.

Instead, the U.S. through legislative measures has addressed, imperfectly to be sure, the issues addressed by the latter treaty. For example, the U.S. has Social Security, Medicare, Medicaid and the Affordable Care Act. The U.S. has unemployment compensation and workers’ compensation for job-related injuries. It has various forms of public housing.

The U.S. through various foreign aid programs has assisted many other countries in these areas as well.

Cuba Responses to the International Bill of Rights

In 2008 Cuba signed both of these treaties, but has not ratified either of them. In its most recent Universal Periodic Review by the U.N. Human Rights Council, various countries recommended that Cuba join these treaties, but Cuba did not accept these recommendations; instead it merely noted them with the comment that the Cuban “process of ratifying an international instrument is very rigorous.” [5]

Like the U.S., Cuba has chosen to address the rights covered by the ICESCR by legislative measures and policy choices. By all reports, it has been providing free education and health care to its citizens, and Cuba has generously provided such services without cost to other countries. For these efforts, Cuba is to be commended.

Cuba also has asserted that human rights are universal and indivisible and no one has more value than another. That is a debatable proposition for another occasion.

Conclusion

Cuba, like anyone defending his own conduct, “accentuates the positive” in its human rights record—its education and health care at home and abroad. It also “eliminates the negative”—its record on freedom of assembly and speech. Foreign Minister Rodriguez in his recent speech at the U.N. Human Rights Council, for example, said nothing on the latter.

The U.S., like anyone criticizing or attacking another’s conduct, does exactly the reverse. It accentuates the negatives of Cuba’s record while eliminating the positive. With respect to the U.S. record, the U.S. in various ways and fora and in different levels of government investigates and debates our failings and possible solutions.

This rather abstract discussion of concepts of human rights implicitly raises the question of what do the two countries hope to achieve in their bilateral discussions of this subject. Both have admitted that they do not have perfect human rights records. At least the U.S., I believe, would concede that most of the Cuban criticisms of the U.S. record are valid. On the other hand, I am skeptical about Cuba’s willingness to make a similar concession about U.S. criticisms of the island’s human rights.

As a result, I think the real issue in these talks should be whether there is anything that one of the countries can do to help the other country improve its record on particular issues.

For example, the U.S. has allocated funds to improve Cuban human rights and democracy. In recent years those funds have been used (I would say “misused”) by the U.S. Agency for International Development (USAID) to conduct covert or “discreet” programs in Cuba; any and all such programs should be forever abolished. [6] Instead, those funds could be used for joint U.S.-Cuba programs to promote civil society’s involvement on the island.

Cuba, on the other hand, could offer to collaborate with the U.S. to improve health care in emergencies or in under-served parts of the U.S. Minnesota and other parts of the U.S., for instance, are projecting physician shortages as current practitioners retire and as their populations grow older. Cuban physicians could practice in these states.

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[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 11-14, 97-105 (4th ed. LexisNexis 2009).

[2] One of the drafters of the Charter was Bernard Meltzer, one of my professors at the University of Chicago Law School.

[3] A fascinating account of Eleanor Roosevelt’s involvement in the preparation of the Universal Declaration is Mary Ann Glendon, A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001).

[4] The ICCPR was adopted 104 to 0 with 18 member states not voting. The ICESCR was adopted 102 to 0 with 3 abstentions and 17 members not voting. Both the U.S. and Cuba are believed to have voted for both of these treaties. 2 Rights Charters Approved by U.N., N.Y. Times (Dec. 16, 1966),

[5] U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review—Cuba (paras. 170.2, 170.4) (July 8, 2013); U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review—Cuba: Annex/Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review [Cuba] (Sept. 2013).

[6] Prior posts have discussed USAID’s social media program and its HIV workshops program and the New York Times editorial against such programs.

Coming Soon–The Roosevelts: An Intimate History

A prior post announced the forthcoming Kenneth Burns’ documentary “The Roosevelts: An Intimate History” about Theodore, Franklin and Eleanor Roosevelt to be shown on National Public Television in the Fall of 2014. Now we have the following schedule and details of the seven two-hour episodes:

Date	Title
September 14	“Get Action (1858-1901)”—The early lives of Theodore and Franklin.
September 15	“In the Arena (1901-1910)”—Theodore transforms the office of the presidency while Franklin courts and weds Eleanor.
September 16	“The Fire of Life (1910-1919)”—Theodore leads Progressive crusade that splits his own Republican Party and enables Democrat Woodrow Wilson to become President.
September 17	“The Storm (1920-1933)”—Franklin serves as Governor of New York and becomes Democratic presidential nominee in 1932.
September 18	“The Rising Road (1933-1939)”—Franklin brings same sense of optimism and energy to White House as his cousin Theodore had.
September 19	“The Common Cause (1939-1944)”—Franklin breaks the third-term tradition and tries to persuade reluctant country to enter World War II.
September 20	“A Strong and Active Faith (1944-1962)”—Franklin is determined to see World War II through to victory. Eleanor fights for civil liberties.

In addition, in September the entire documentary will be available on DVD, and Knopf Doubleday will publish an oversized volume of The Roosevelts: An Intimate History containing nearly 800 photographs documenting the lives of Theodore and Franklin Roosevelt and (to a much lesser extent) their wives and families. The author, historian Geoffrey C. Ward, argues that “the similarities and not the differences” between Teddy and FDR are compelling. Both bucked the reins of their parties, though the one remained a Republican for most of his political career while the other redefined Democratic Party politics; both were children of privilege whose sense of noblesse oblige included a fundamental sense of fairness. Both surpassed all that was expected of them and transcended class to embrace an American-ness.

PBS’ “The Roosevelts: An Intimate History”

As someone who currently is investigating certain aspects of Theodore Roosevelt’s presidency,[1] I was happy to learn that this Fall PBS will be broadcasting noted documentarian Ken Burns’ The Roosevelts: An Intimate History.

In seven parts totaling 14 hours, the documentary “chronicles the lives of Theodore, Franklin and Eleanor Roosevelt, three members of the most prominent and influential family in American politics.”

In June I enjoyed watching PBS Previews: The Roosevelts that whetted my appetite for the full series.

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[1] Prior posts have reviewed (a) the election of William McKinley and Theodore as President and Vice President in the election of 1900; (b) Roosevelt’s involvement in that election; and (c) the assassination of President McKinley and the swearing in of Roosevelt as President. Future posts will canvas Roosevelt’s first term (1901-1905) regarding regulation of railroads, his “re-election’ in 1904 and his second term (1905-1909) regarding such regulation.

Refugee and Asylum Law: The Modern Era

As previously indicated, the history of refugees and asylum, in my opinion, may be divided into two major periods: the pre-modern era (before the adoption of the Universal Declaration of Human Rights in 1948) and the modern era (after that adoption).[1] We now examine that Declaration and its implementation in the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.

Universal Declaration of Human Rights

The United Nations Charter, which entered into force on October 24, 1945, created the Economic and Social Council in Chapter X. Under Article 68 of the Charter, this Council was to establish a commission for the promotion of human rights.[2]

In early 1946 this Council created a committee to make recommendations on the structure and functions of such a commission. Eleanor Roosevelt, the widow of U.S. President Franklin D. Roosevelt, and eight others were appointed to this committee, and she was elected its chair. It recommended that the first project of the new commission should be the writing a bill of human rights. Thereafter, in June 1946, the Council created the U.N. Human Rights Commission and directed it to prepare an international bill of human rights.[3]

In January 1947 the Human Rights Commission held its first meeting and elected Eleanor Roosevelt as its chair.[4]

At the Commission’s June 1947 meeting Great Britain proposed preparing a covenant or treaty of human rights, rather than a declaration full of high-sounding generalities. The U.S., however, favored a broad declaration followed by treaties. The U.S. position appears to have been a strategy to avoid the U.S. Senate ratification process that constitutionally was necessary for ratification of treaties, but was not required for U.S. voting in the U.N. General Assembly. Remember that President Truman was heading into the 1948 presidential election and did not want to provoke a Senate vote he might lose. In any event, the Commission decided to work on both a declaration and covenants.[5]

In December 1948 (only one month after Truman won the presidential election), the U.N. General Assembly adopted the Universal Declaration: 48 in favor (including the U.S.); 0 against; 8 abstentions (the USSR and its allies, South Africa and Saudi Arabia); and 2 absences.[6]

The Declaration had two important provisions relevant to refugees and asylum. Its Article 13(2) stated, “Everyone has the right to leave any country, including his own, and to return to his country.” Article 14(1) went on to say, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Emphasis added.)[7]

Even though the Declaration was not a treaty that created legal obligations for subscribing states, its declaring that every individual human being had a right to asylum was a historic departure from the pre-modern era where asylum was a matter of discretion for the protecting state. This provision also set an objective for the treaty on refugees then being formulated. These provisions of the Universal Declaration, in my opinion, also constitute an atonement for the failure of the civilized world in the 1930’s to protect German Jewish refugees.

In any event, ever since its adoption, the Universal Declaration has set the agenda for the subsequent development of international human rights treaties. The Declaration also continues to act as an inspirational and aspirational document throughout the world, as I discovered on my first visit to El Salvador in April 1989.[8]

Convention Relating to the Status of Refugees

On July 2, 1951, an international conference in Geneva, Switzerland concluded with the signing of the Convention Relating to the Status of Refugees by the conference attendees and the opening of the treaty for accession or ratification by nation states.[9] By its Article 43(1) it was to enter into force or become a binding treaty 90 days after the sixth state had acceded or ratified the treaty. That happened on April 22, 1954.[10]

Its preamble noted that the U.N. had “manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of . . . fundamental rights and freedoms.” The preamble also stated, “the grant of asylum may place unduly heavy burdens on certain countries, and . . . a satisfactory solution of a problem . . . [of] international scope and nature cannot therefore be achieved without international cooperation.”

This treaty adopted the following definition of “refugee” in Article 1(A)(2) as any person who:

“[As a result of events occurring before 1 January 1951] and owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The bracketed phrase [“As a result of events occurring before 1 January 1951”] was the provision that limited the coverage of the Convention to the problems still being faced by many World War II refugees still scattered across Europe. This limiting phrase was eliminated in the Protocol Relating to the Status of Refugees discussed below.

Excluded from the definition of “refugee” in Article 1(F) was “any person . . . [who] (a) . . . has committed a crime against peace, a war crime or a crime against humanity . . . ; (b) . . . has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [and] (c) . . . has been guilty of acts contrary to the purposes and principles of the [U.N.].”[11]

The Convention granted refugees certain rights within a country of refuge as well as imposing on them certain obligations. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their “illegal entry or presence.” This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.

Importantly, the Convention contains various safeguards against the expulsion of refugees. Its Article 33(1) states, “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Protocol Relating to the Status of Refugees

By 1966, it had become apparent that new refugee situations had arisen since the Refugee Convention had been adopted and that all refugees should enjoy equal status. As a result, a new treaty was prepared to eliminate the previously mentioned limitation of the Convention to those refugees created by pre-1951 events. This was the Protocol Relating to the Status of Refugees that went into force on October 4, 1967.[12]

Parties to the Convention or Protocol

As of April 1, 2011, there were 145 nation states (and the Holy See) that were parties to the Convention and Protocol or the latter, including the U.S. That represents 76.2% of the U.N. members (plus the Holy See).[13]

Conclusion

In subsequent posts we will review (a) the work of the principal U.N. agency concerned with refugees (the Office of the United Nations High Commissioner for Refugees); (b) U.S. law and procedures for refugees; and (c) U.S. law and procedures for asylum.

[1] See Post: Refugees and Asylum Law: The Pre-Modern Era (July 7, 2011).

[2] U.N., United Nations Charter, http://www.un.org/en/documents/charter/index.shtml.

[3] See Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House 2002)(fascinating history of the development of the Universal Declaration).

[4] Id.

[5] Id.

[6] Id.

[7] U.N., Universal Declaration of Human Rights, http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement.

[8] See Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).

[9] UNHCR, 1951 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, http://www.unhcr.org/cgi-bin/texis/vtx/search/?page=&comid=3c07a8642&cid=49aea9390&scid=49aea9398.

[10] UNHCR, Convention and Protocol Relating to the Status of Refugees, http://www.unhcr.org/3b66c2aa10.html; UNHCR, The 1951 Refugee Convention: Questions and Answers (2007), http://www.unhcr.org/3c0f495f4.html.

[11] There are certain other stated exclusions from the definition of “refugee” in Article 1(C), (D), (E).

[12] Id.

[13] UNHCR, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, http://www.unhcr.org/3b73b0d63.html. In addition Madagascar and St. Kitts & Nevis are parties only to the Convention with its now outmoded temporal limitations. (Id.)