As previously noted, on July 6, the U.S. Commission on Unalienable Rights issued its Draft Report. The Final Report was issued 51 days later on August 26 as “a consensus document that was signed and approved unanimously by all 11 commissioners.”
The latter was after the Commission had solicited and obtained a large number of comments, mainly negative, about the Draft Report. But presumably after reviewing those comments, the Final Report was issued with “only [unidentified] small changes.” The only public explanation of this decision was the following: “For the most part, the recent round of public comment restated perspectives and points shared before, during, and after the Commission’s five public meetings . . . and so already had been taken into account by the Commission.”
The most important criticisms of the Draft Report, which this blog shared, were its statement, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty.” Also criticized were the draft Report’s downgrading of “positive rights,” i.e., rights that “owe their existence to custom, tradition, and to positive law, which is the law created by human beings,” and Secretary Pompeo’s objections to women’s reproductive rights (especially abortion) and to LGBTQ rights.
Criticism of Draft Report
Here is a summary of some of the criticisms of the Draft Report from some of the respected international human rights non-profit organizations.
The Human Rights Watch submission stated, “With other organizations, we also remain concerned that the commission itself was not representative of the human rights community, did not take testimony from the full scope of the human rights community, and did not consider in its scope the range of issues the human rights framework aims to address. Freedom House pointed out that there already are mechanisms for interpreting human rights obligations of states at international and regional levels. The supposed gap the commission was created to fill is one that does not exist; therefore, the premise [for the Commission] is dubious and its work duplicative. . . . we continue to question its value and have increasing concerns about the repercussions that its work may have on the universality and efficacy of human rights protections and on the institutions designed to oversee compliance and implementation.” That submission also stated the following:
- “The world has no shortage of actors who aim to weaken existing protections or call internationally recognized rights into question. Too often, that has included the United States. In recent years, the United States has moved sharply away from its longstanding if inconsistent role of seeking to advance human rights worldwide. Its decisions to withdraw from the United Nations Human Rights Council, stonewall UN human rights experts, make an extraordinary threat of vetoing a UN Security Council resolution on women, peace, and security because it mentioned survivors’ sexual and reproductive health and rights, and terminate funding for multilateral bodies like the United Nations Population Fund, UNESCO, and the World Health Organization that help advance rights to education and health worldwide have removed the United States as a key player on global human rights issues. The United States State Department’s creation of the Commission on Unalienable Rights purports to scrutinize well-grounded rights and obligations and reinterpret them in a way that deprivileges certain human rights but poses a risk to all rights. The United States should prioritize fulfilling its commitments, not redefining them to fulfill the wishes of a few.”
- The Report “sets dangerous precedent that countries should decide which internationally recognized rights are or are not valid. . . . appeals to history and tradition are frequently abused by governments to justify their rejection of internationally recognized human rights norms. . . . Such an approach is likely to fragment and weaken the international human rights system, not strengthen or revitalize it. “
- The Declaration of Independence and UDHR “are statements of principle, not obligation. Using these documents without also considering relevant human rights treaties and other sources of international law to guide human rights policy leads to a distorted understanding of the United States’ binding international obligations and commitments.”
- The Report “spends little time on the adoption of the Constitution, the Bill of Rights, the Reconstruction Amendments, the enfranchisement of women, the strengthening of due process under the Warren Court, the passage of the Civil Rights Act, Fair Housing Act, and Americans With Disabilities Act, and jurisprudence recognizing the right to reproductive autonomy and the rights of lesbian, gay, bisexual, and transgender people. Similarly, it does little to acknowledge increased recognition over the years of economic and social rights as central to human rights discourse.”
- U.S. “obligations under core human rights treaties coexist with other commitments the United States has made to respect, protect, and fulfill human rights, which are largely absent from the commission’s report.”
- “The human rights project is facing challenges, but they are “not a matter of too many people seeking or claiming their rights. Instead, they are challenges that arise from autocratic or authoritarian governments that have denied fundamental rights, silenced vulnerable populations, and diminished the institutions and civil society groups that protect human rights from erosion.”
- “The [draft] report erroneously suggests “that human rights that are inconsistent with domestic traditions are less meaningful or real than those the United States deems to favor.. . . [and] does not sufficiently acknowledge the maintenance, scrutiny, and accountability that upholding human rights requires.”
- “Efforts to secure access to abortion are . . . about rights to life, to health, and to bodily autonomy. Similarly, efforts to secure the freedom to marry are . . . about the right to form a family and equal access to existing rights and protections without discrimination based on sexual orientation or gender identity.”
Two other such organizations offered similar comments. Freedom House: Trump Administration ignored or excused violations by Egypt, Turkey, Saudi Arabia, China, Russia, N. Korea and rebuffed pressure for racial justice in U.S. The draft report also rejects LGBT+ people, women and minorities. In addition, Freedom House rejects prioritization of rights and failure to recognize change views of rights over time (Pp 21-22). Human Rights First said proliferation of rights claims has not undermined legitimacy and credibility of human rights framework; treaties have not created uncertainties; rights hierarchies are wrong; abortion, affirmative action & same-sex marriage are valid rights; effort to preclude extension of new rights is wrong. It is retreat from human rights. (Pp 80-94).
Human Rights First’s Criticism of Final Report
According to Kenneth Roth, the Executive Director of Human Rights First, Secretary Pompeo “has imposed his personal preferences [in the Final Report]while relying on arguments that pose a profound threat to all human rights as well.”
The Final Report “is a frontal assault on international human rights law. The report treats the Universal Declaration of Human Rights [UDHR], adopted in 1948 and drafted with the help of Eleanor Roosevelt, as the heyday of the human rights movement.” But this important document “is a non-binding political declaration. It has been followed over the years by a series of legally binding treaties, each with an independent expert committee elected by treaty members to interpret its language and monitor compliance. The commission disparages this legal elucidation as a ‘proliferation’ of rights, suggesting that there are now too many rights.”
Initially, the UDHR was codified in two legally binding covenants. One, on civil and political rights, contains provisions similar to the US Constitution, and the US government has ratified it. Another, on economic, social, and cultural rights, finds parallels in US law but not the US Constitution. The US government signed but never ratified it or fully embraced its rights.”
“After these foundational covenants, a handful of other treaties were adopted, spelling out, for instance, the meaning of the prohibition of torture or ways to protect women, racial minorities, children, and people with disabilities from discrimination. What Pompeo’s commission disparages as “proliferation” is in fact a process to ensure respect for the rights of people who traditionally have been marginalized or neglected.”
The Commission seemed most concerned with “interpretations of human rights law to protect reproductive freedom and the rights of LGBT people. In the case of LGBT rights, for example, the Human Rights Committee—the official body for interpreting the civil and political rights covenant—has found that the prohibition of discrimination on the basis of sex includes discrimination based on sexual orientation, just as the US Supreme Court recently found that sex discrimination includes discrimination against LGBT people.”
“The Pompeo commission’s discomfort with the Human Rights Committee is why it lionizes the non-binding [UDHR]. The declaration, as a statement of principles, has no accompanying interpretive body of law. That allows the US government to interpret its broad principles on its own, as if the covenants had never been adopted as its legally binding version.”
The Commission “seems to favor an a la carte approach to rights: The US government will pick the rights that it wants to observe, and others can do the same. That approach would be music to the ears of the world’s autocrats, and many will happily take the opportunity to trample on certain basic rights that Pompeo himself has rightly defended in places like Hong Kong.”
“To effectively abandon binding treaties for the Pompeo commission’s a la carte approach is to relegate human rights to the vagaries of government preferences. That’s not a system of human rights. It’s an excuse for repression, discrimination, and abuse.”
The Final Report also completely ignores the language of the U.S. Declaration of Independence. After reciting “life, liberty and the pursuit of happiness” as among “certain unalienable rights” that “ are endowed by their Creator,” the Declaration next states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, governments will need to enact various kinds of statutes and other rules “to secure . . .life, liberty and the pursuit of happiness.”
 State Dep’t, [Final] Report of the Commission on Unalienable Rights (Aug. 26, 2020).
 The Commission’s website has a page for Public Submissions to the Commission, but they are limited to submissions before the issuance of the Draft Report in light of this statement, “At each of its public meetings, the Commission solicited input from the general public on relevant topics regarding human rights. Sometimes comments came from audience members who attended the meetings in person and who generously offered their thoughts and posed questions to commissioners at the microphone. Other times, outside individuals and groups opted to send more detailed written commentary to the Commission.”
 Roth, Pompeo’s Commission on Unalienable Rights Will Endanger Everyone’s Human Rights, hrw.org (Oct. 27, 2020).