Secretary Pompeo’s Reactions to U.S. Commission on Unalienable Rights’ Report     

On July 16, Secretary of State Michael Pompeo gave an immediate response [1] to the Report of the U.S. Commission on Unalienable Rights that was summarized in a prior post.  Now we look at some of the significant points of Pompeo’s response.

Pompeo’s Introduction by Chair Glendon’s 

Chair Mary Ann Glendon said that the importance of the Commission’s work has been highlighted by several recent developments. First, Freedom House recently reported that “political and civil rights worldwide have declined this year for the 14th consecutive year and that half the world’s population – 4 billion people – currently live under autocratic or quasi-authoritarian regimes.”[3] Second, “some powerful countries are now openly challenging the basic premises of the great post-World War II human rights project, and by challenging the premises, they are undermining the already fragile international consensus behind the ideas that no nation should be immune from outside scrutiny of how it treats its own citizens and that every human being is entitled to certain fundamental rights simply by virtue of being human.” Third, “Another set of threats to human freedom and dignity are emerging in technological advances – artificial intelligence, biotechnology, data collection, sophisticated surveillance techniques.” Fourth, “millions of women and men are suffering arbitrary imprisonment, torture, and those women and men are looking to the United States as a beacon of hope and encouragement.”

Pompeo’s Speech

“These . . . unalienable rights . . . are a foundation upon which this country was built. They are central to who we are and to what we care about as Americans.”

“America’s founders didn’t invent the ‘unalienable rights,’ but stated very clearly in the Declaration of Independence that they are held as ‘self-evident’ that human beings were ‘created equal’  and ‘endowed by their Creator with certain unalienable rights… among [those] are Life, Liberty, and the Pursuit of Happiness.’”

The report emphasizes foremost among these rights are property rights and religious liberty. No one can enjoy the pursuit of happiness if you cannot own the fruits of your own labor, and no society – no society can retain its legitimacy or a virtuous character without religious freedom.” (Emphasis added.)

“Our founders knew that faith was also essential to nurture the private virtue of our citizens.”

George Washington, in “his now famous letter from 1790, . . .  to the Jews of Newport,. . .  proudly noted that the United States ‘gives to bigotry no sanction, to persecution no assistance.’” But “our founders also knew the fallen nature of mankind. [As] Alexander Hamilton wrote in Federalist 10: ‘Men are ambitious, vindictive, rapacious.’ So in their wisdom, they established a system that acknowledged our human failings, checked our worst instincts, and ensured that government wouldn’t trample on these unalienable rights.”

“Limited government structured into our documents protects these rights. As the [Commission] report states, ‘majorities are inclined to impair individual freedom, and public officials are prone to putting their private preferences and partisan ambitions ahead of the public interest.’”

In 1838, Abraham Lincoln, then a 28-year-old lawyer, gave a moving speech to the local young man’s lyceum in Springfield, Illinois, when he said, ‘We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us.’

“This is still true of America today. America is fundamentally good and has much to offer the world, because our founders recognized the existence of God-given, unalienable rights and designed a durable system to protect them.”

“The . . . societal upheavals that are currently roiling our nation . . .directly ties to our ability to put our founding principles at the core of what we do as Americans and as diplomats all across the world.”

[We must admit, however,] “that at our nation’s founding our country fell far short of securing the rights of all. The evil institution of slavery was our nation’s gravest departure from these founding principles. We expelled Native Americans from their ancestral lands. And our foreign policy, too, has not always comported with the idea of sovereignty embedded in the core of our founding.”

“But . . . the nation’s founding principles gave us a standard by which we could see the gravity of our failings and a political framework that gave us the tools to ultimately abolish slavery and enshrine into law equality without regard to race. . . . From Seneca Falls, to Brown vs. Board of Education, to the peaceful marches led by Dr. Martin Luther King Jr., Americans have always laid claims to their promised inheritance of unalienable rights.”

The New York Times’s 1619 Project – so named for the year that the first slaves were transported to America – wants you to believe that our country was founded for human bondage, that America’s institutions continue to reflect the country’s acceptance of slavery at our founding. . . [and] that Marxist ideology [correctly says] America is only the oppressors and the oppressed. [This 1619 Project] is a slander on our great people. Nothing could be further from the truth of our founding and the rights about which this report speaks.”  (Emphasis added.)

The Commission rejects these notions and “reminds us [of] a quote from Frederick Douglas, himself a freed slave, who saw the Constitution as a ‘glorious, liberty document.’”

“If we truly believe . . . that rights are unalienable, inviolate, enduring, indeed, universal, just as the founders did, then defending them ought to be the bedrock of our every diplomatic endeavor.”

“Our dedication to unalienable rights doesn’t mean we have the capacity to tackle all human rights violations everywhere and at all times. Indeed, our pursuit of justice may clash with hard political realities that thwart effective action.”

“Americans have not only unalienable rights, but also positive rights, rights granted by governments, courts, multilateral bodies. Many are worth defending in light of our founding; others aren’t.”

Prioritizing which rights to defend is also hard. [According to a research group, there are] 64 human rights-related agreements, encompassing 1,377 provisions, between the United Nations and the Council of Europe alone. That’s a lot of rights. And the proliferation of rights is part of the reason why this report is so important.” This report “has provided us the [following] essential questions to ask:

  • Are our foreign policy decisions rooted in our founding principles?
  • Are the decisions consistent with our constitutional norms and procedures?
  • Are they rooted in the universal principles of the Universal Declaration of Human Rights [UDHR]?
  • Does a new rights claim . . .represent a clear consensus across different traditions and across different cultures, as the Universal Declaration did, or is it merely a narrower partisan or ideological interest?”

The great and noble human rights project of the 20th century, [however.] is in crisis. Authoritarian regimes perpetrate gross human rights violations every day, all around the world. Too many human rights advocacy groups have traded proud principles for partisan politics. And we see multilateral human rights bodies failing us. The United Nations Human Rights Council does the bidding of dictators and averts its gaze from the worst human rights offenses of our times. [In addition,] international courts too have largely abandoned unalienable rights. The International Criminal Court is training its sights on Americans and Israelis, not the ayatollahs of the world. And the incurious media rarely examines any of these failings.”(Emphasis added.)

“The vital 20th century human rights project has come unmoored, and it needs a re-grounding. The Commission’s work marks an important contribution to America’s effort to address this human rights crisis, and it’s a good time to do so.”

[As the report says,] “we must cultivate the ‘seedbeds of human rights.’ Free and flourishing societies cannot be nurtured only by the hand of government. They must be nurtured through patriotic educators, present fathers and mothers, humble pastors, next-door neighbors, steady volunteers, honest businesspeople, and so many other faithful, quiet citizens.” (Emphasis added.)

We have the responsibility to educate and advocate. Our diplomatic posts all over the world have human rights officers working to promote American values. We can shine a light on abuses, and as we do when we issue our annual reports, we take stock of the world’s efforts on religious freedom, on human rights, and on human trafficking.” (Emphasis added.)

We too can empower the people of other nations to further their social and economic rights. Our USAID does this essential work, as does our W-GDP program, which helps women flourish as entrepreneurs. Women, sadly, suffer the most human rights abuses. We can help them do better.” (Emphasis added.)

“We can work productively too with other nations. We’ve done that. We’ve worked with 60-plus nations to help the Venezuelan people recover democracy from the Maduro dictatorship.”

We also “ have punitive tools too, such as sanctions that we’ve levied on human rights abusers in Iran and in Cuba, and a recent advisory that we put out about Xinjiang and companies doing business there. We want to make sure that no American business is knowingly benefiting from slave labor.” (Emphasis added.)

“But to do so effectively, we must insist on the rightness and the relevance of America’s founding principles. Surely, if America loses them, she loses her soul and our capacity to do good around the world.”

“I am confident that the American star will shine across the heavens, so long as we keep a proper understanding of unalienable rights at the center of our unending quest to secure freedom for our own people and all of mankind. The report that you worked on will ensure that we have a better chance to accomplish that.”

Glendon-Pompeo Conversation

Immediately after Pompeo’s speech, Chair Glendon and Pompeo had a brief conversation.  One of her questions was: “Why is human rights advocacy is such an important part of our national interest?”

Pompeo responded, “Our capacity to have influence around the world . . . stems from our confidence in ourselves and our deep commitment to the fact that this nation is exceptional, because we rallied around this idea of unalienable rights. [We have developed annual ministerial meetings to gather] religious leaders of all faiths from all around the world. It’s the largest gathering of religious leaders every year to talk about these set of rights and religious freedom. . . . Some two-thirds of the people in the world live in places that are extremely challenged with the absence of religious freedom and religious liberty, the simple chance to exercise their conscientious views on faith.” (Emphasis added.)

Yet Another Pompeo Speech

On July 17th (the very next day after the above speech], Pompeo and his wife were in West Des Moines, Iowa for a speech—”My Faith, My Work, My Country”[3]— at the Family Leader Summit.[4] Here a few things he said.

“We [at the State Department] have a responsibility to keep you all safe. We advocate too for American businesses abroad, and help create jobs in every state in the union. And we represent your principles. We’ve executed a foreign policy that American families in Des Moines, in Dubuque, and in Davenport can believe in. It’s a pro-national security foreign policy focused on America. It’s a pro-religious freedom foreign policy. And it’s a 100 percent pro-life foreign policy.” (Emphasis added.)

Later, he added, “America sets the tone for the rest of the world in this respect, and our administration has defended the rights of unborn like no other administration in history. Abortion quite simply isn’t a human right. It takes a human life. You all – you all know this. The Psalmist says in Psalm 139: ‘You knit me together in my mother’s womb.’ This is when life begins, full stop. So we’ve reinstated the Mexico City Policy, so that not a single dime of American taxpayer money will ever go to a foreign NGO that performs active abortions anywhere in the world. In the fall of last year, . . . Secretary Azar at Health and Human Services and I, we mobilized 20 countries to deliver a joint statement at the UN criticizing pro-abortion language in UN documents. This has not happened before. We said clearly that “there is no international right to an abortion.” (Emphasis added.)

He also had extensive negative comments about China and Iran and positive words about Israel.

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[1] State Dep’t, Pompeo Speech: Unalienable Rights and the Securing of Freedom (July 16, 2020)[“Pompeo Speech”].  (The above post highlights some points for discussion in a subsequent post.) See also Pompeo, American diplomacy must again ground itself in the nation’s founding principles, Wash. Post (July 16, 2020); Assoc. Press, Pompeo Says US Should Limit Which Human Rights It Defends, N.Y. Times (July 16, 2020)

[2]  Freedom House, Freedom in the World 2020: A Leaderless Struggle for Democracy..

[3] State Dep’t, Pompeo Speech: My Faith, My Work, My Country (July 17, 2020). 

[4] The Family Leader, which is based in Urbandale IA, is an organization that is focused on marriage as “a permanent lifelong commitment between a man and a woman;” on sanctity of life for “protection of life from conception to natural death;” on affirming “ sexual relations within the bond of marriage, and oppose distortions of sexuality or special rights to those practicing distorted sexual behavior.” (The Family Leader, Issues we are focused on.)

 

U.S. Commission on Unalienable Rights’ Report

On July 7, 2019, the U.S. State Department launched its Commission on Unalienable Rights to conduct ”an informed review of the role of human rights in American foreign policy.” This study was to focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 [United Nations] Universal Declaration of Human Rights.” The next day Secretary of State Michael Pompeo announced that the group’s chair would 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, who would be aided by nine other eminent members.[1]

Over the next year the Commission held six public meetings with these ten distinguished speakers: (1) Michael W. McConnell, a Stanford University law professor and former federal appellate judge;  (2)  Wilfred M. McClay, a humanities professor at the University of Tennessee; (3) Cass Sunstein, a professor at Harvard Law School; (4) Orlando Patterson, a Professor of Sociology at Harvard University;  (5) Michael Abramowitz, the director of the Committee on Conscience at the U.S. Holocaust Memorial Museum; (6) Miles Yu, a Chinese-American and principal China policy and planning advisor to Secretary Pompeo; (7) Kenneth Roth, Executive Director of Human Rights Watch; (8) Diane Orentlicher, Professor of International Law at American University; (9) Martha Minow,  Harvard Law School professor and expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities; and (10) Thor Halverssen, a Venezuelan-Norwegian businessman and human rights activist.[2]

On July 16, 2020, the Commission issued its 60-page report, which is subject to public comment through July 30 and which will be reviewed in this post. [3] Subsequent posts will examine Secretary Pompeo’s personal endorsement of that report and his conversation about the report with Chair Glendon as well as reactions from others outside the Commission.

The Report: Unalienable and Positive Rights

“The 17th century British subjects who settled, and built thriving communities along, the eastern seaboard of what they regarded as a new world brought with them a variety of traditions. . . . Among the traditions that formed the American spirit, three stand out. Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”

Each of these “distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights — that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction:” ‘that all men are created equal, that they are endowed by their Creator, with certain unalienable rights, that among there are Life, :liberty, and the pursuit of happiness.”

“To say that a right, as the founders understood it, is unalienable is to signify that it is inseparable from our humanity, and thereby to distinguish it from other sorts of rights. The most fundamental distinction is between unalienable rights — sometimes referred to as natural rights in the founding era and today commonly called human rights — and positive rights. Unalienable rights are universal and nontransferable. They are pre-political in the sense that they are not created by persons or society but rather set standards for politics. They owe their existence not to the determinations of authorities or to the practices of different traditions but to the fundamental features of our humanity. . . . {S]uch rights are essential to the dignity and capacity for freedom that are woven into human nature.”

“In contrast, positive rights are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings. Because custom, tradition, and positive law vary from country to country, so too do positive rights. In the same country, positive rights may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”

“To say that positive rights are not universal, however, is not to deny their importance, and to say that they are distinct from unalienable rights is not to deny that the two can be closely connected in political affairs. Unalienable rights provide a standard by which positive rights and positive law can be judged, while positive rights and positive law make the promise of unalienable rights concrete by giving expression to and instantiating unalienable rights.”

All of the above, in this blogger’s judgment, is eminently reasonable.

The Report: The Foremost Unalienable Rights

The Report, however, in this blogger’s opinion, is on shakier ground when it goes on to say, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy.”

“For the founders,” the Report goes on to say, “property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.’

‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”

“The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property. It also explains why many abolitionists thought that owning property was a necessary element of emancipation: only by becoming property-owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.”

“Religious liberty enjoys similar primacy in the American political tradition — as an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtues. In 1785, James Madison gave classic expression to its centrality in founding-era thinking in his ‘Memorial and Remonstrance Against Religious Assessments.’ Quoting the Virginia Declaration of Rights’ definition of religion, Madison wrote, ‘we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ Freedom of conscience in matters of religion is unalienable “because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.’”

The Report: The Universal Declaration of Human Rights (UDHR)[4]

The report endorsed the statement of Eleanor Roosevelt, a U.S. citizen and Chair of the commission that drafted the UDHR, when the U.N. General Assembly in 1948 was considering the adoption of this instrument: “[I]t is of primary importance, that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation. It is a Declaration of basic principles of human rights and freedoms, to serve as a common standard of achievement for all peoples of all nations” (emphasis added).

Moreover, the UDHR has ”overarching principles and structural dimensions” connected to the U.S. founding and foreign policy.

First, the UDHR “gave voice to the conscience of global humanity for the first time in history.”

Second, the UDHR “includes only those [rights] that were capable of attaining a near-universal consensus among the diverse nations represented at the UN . . . [and] were expressed in open-ended terms in order to achieve consensus and garner widespread support.”

Third, the UDHR “was written and understood as an integrated set of interlocking principles.”

Fourth, the UDHR “affirms that human dignity, freedom, equality, and community are indissolubly linked.” It makes “clear that human dignity is inherent: it pertains to human beings solely because they are human beings . . . and provides a moral standards for evaluating positive law.” Thus, “the idea of human dignity at the heart of the [UDHR}converges with the idea of ‘unalienable rights’ in the American political tradition.”

Fifth, the UDHR has the “capacity to accommodate a broadly diverse set of political, economic, cultural, religious, and legal traditions” and “can be concretely realized in different political systems . . . [allowing] significant latitude in their interpretation and application.”

The Report: Future U.S. Foreign Policy and Human Rights

  1. “U.S. Needs To Vigorously Champion Human Rights in Foreign Policy

The U.S., “ by virtue of the principles deeply inscribed in its constitutional system and its international commitments, must champion vigorously the vision that it and nearly every other nation pledged to support when they approved the[UDHR].. It is by fidelity to what is best in the nation that the United States can respond most effectively to the manifold demands of the moment. Each of the major traditions that merged in America’s founding — Biblical faith, civic republicanism, and the modern tradition of freedom — nourished the nation’s core convictions that government is properly rooted in the consent of the governed and that its first purpose is to secure the rights that all human beings share. These core convictions, and the traditions that nourish them, are a source of inspiration and strength. It is no exaggeration to say that, with people around the world counting on America to champion fundamental rights, this country’s energetic dedication to that task will have no small influence on the future of freedom.”

  1. “The Power of Example Is Enormous”

The U.S. should serve “as an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity.” The U.S. also needs “to recognize the gap between our principles and the imperfections of our politics and can demonstrate, as we ask of others, tangible efforts at improvements.” 

  1. “Human Rights Are Universal and Indivisible

The U.S. needs to criticize when rights in UDHR “are radically subordinated in the name of development or other social and economic objectives.”

  1. “Universality and Indivisibility of Human Rights Does Not Mean Uniformity in Bringing Them to Life”

The UDHR contemplates “some variation in emphasis, interpretation, and mode of implementation.”

  1. A Degree of Pluralism in Respecting Human Rights Does Not Imply Cultural Relativism

“The scope for diversity in bringing human rights to life is circumscribed by the duty to ‘promote and protect all human rights and fundamental freedoms,’ and by the . . . [requirement] that all rights must be exercised with due respect for the rights of others and that its rights may be subject to “such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

  1. Nation-States Have Some Leeway To Base Their Human Rights Policy on Their Own Distinctive National Traditions

Yet such policies must be “consistent with the overarching conviction affirmed in Article I of the UDHR that ‘All human beings are born free and equal in dignity and rights.’”

  1. Certain Distinctions Among [Human Rights] Are Inherent in the [UDHR] . . .,as Well as in the Positive Law of Human Rights

“U.S. foreign policy can and should consider which rights most accord with national principles and interests at any given time. Such judgments must take into consideration both the distinctive American contributions to the human rights project and also prudential judgments about current conditions, threats, and opportunities.”

However, “some international norms, like the prohibition on genocide, are so universal that they are recognized as norms of jus cogens — that is, principles of international law that no state can legitimately set aside. The application of certain human rights demands a high degree of uniformity of practice among nations, as in the prohibition of torture, while others allow for considerable variation in emphases.”

  1. Freedom, Democracy, and Human Rights Are Indissolubly Linked

This “invites a [U.S.] commitment to the promotion of individual freedom and democratic processes and institutions as central to the U.S. human rights agenda. By the same token, it counsels considerable deference to the decisions of democratic majorities in other countries, recognizing that self-governance may lead them to set their own distinctive priorities. The U.S. promotion of fundamental rights should always be sensitive to the outcomes of ordinary democratic politics and the legitimate exercise of national sovereignty, and wary of rights claims that seek to bypass democratic institutions and processes.”

  1. Social and Economic Rights Are Essential to a Comprehensive [U.S.] Foreign Policy

The U.S. was a major supporter of the indivisibility principle as well as the aspiration for “better standards of life in larger freedom” . . . in the UN Charter and the [UDHR] Preamble.” For the U.S.,  implementation of these rights were “left up to each nation.” A “minimum standard of living is essential to the effective exercise of civil and political rights.”

  1. New Claims of Rights Must Be Carefully Considered”

“The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.”

  1. National Sovereignty Is Vital to Securing Human Rights”

The U.S. “should resist attempts at creating new rights through means that bypass democratic institutions and procedures, or that are inconsistent with the understandings on the basis of which the [U.S.] entered into international agreements. {The U.S. also] should respect the independence and sovereignty of nation-states to make their own moral and political decisions that affirm universal human rights within the limits set forth in the UDHR.”

  1. The Seedbeds of Human Rights Must Be Cultivated

“Respect for human rights must be cultivated, and the promotion of basic rights is only one element in building the kind of societies that promote human flourishing in all its dimensions. . . . The collective effort since 1948 to translate the UDHR’s broad principles of human rights into binding legal commitments through a network of treaties has achieved laudable results.”

As Eleanor Roosevelt said on the tenth anniversary of the UDHR, “Protection of human rights is a never-ending struggle, one that involves a nation’s sense of its own principles and purpose. . . . The surest protection of human freedom and dignity comes from the constitutions of free and democratic states undergirded by a tolerant, rights-respecting culture. As in the case of the United States’ distinctive rights tradition, the maintenance of the international human rights project will require attention to the ‘small places’ where the spirit of liberty is rooted, nurtured, and cultivated.”

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[1] See U.S. Commission on Unalienable Rights Is Launched, dwkcommentaries.com (July 8, 2019); State Dep’t, Charter for the Commission on Unalienable Rights; State Dep’t, Commission on Unalienable Rights, Member BiosSee also List of Posts to dwkcommentaries—-Topical: U.S. Commission on Unalienable Rights.

[2]  State Dep’t, Policy Planning Staff, Commission on Unalienable Rights; State Dep’t, Public Submissions to the Commission [on Unalienable Rights].

[3] State Dep’t, Draft Report of the Commission on Unalienable Rights (July 16, 2020).

[4] The Commission Chair, Mary Ann Glendon, is a noted authority on the UDHR. See Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001). See also Human Rights Commentaries by Mary Ann Glendon, Chair of  Commission on Unalienable Rights, dwkcommentaries.com  (Nov. 2, 2019).

 

 

 

U.S. Commission on Unalienable Rights’ Meeting, November 1, 2019

Here is a summary of the November 1, 2019, meeting of the U.S. Commission on Unalienable Rights featuring  presentations by Cass Sunstein, the Robert Walmaly University Professor at Harvard Law School, and Orlando Paterson, the John Cowles Professor of Sociology at Harvard University.  [1]

Chair May Ann Glendon’s Introduction

Chair Glendon “explained that the Commission is still in the very beginning stages of its task, which is to advise the Secretary of State on the role human rights play in foreign policy, with that advice grounded in America’s founding principles, as well as the international commitments the United States made after World War II. Glendon emphasized the Commission’s independence: Commissioners are obliged to give the Secretary their best advice, to be non-partisan, and to consult broadly with experts from Department of State (for example, in the Bureau of Democracy, Human Rights, and Labor (DRL)), but also with outside activists and academic specialists. Glendon praised the speakers who participated in the Commission’s previous meeting in October.”

Commissioner’s Comments

“Each commissioner explained his/her professional background and reflected on the speakers from the last session.” Of particular note is the following comments by Commissioner  Dr. Jacqueline Rivers, who “voiced a sentiment, shared by others, that bridged the different topics and time periods the Commission will consider in its work. For Rivers, one crucial question is how to avoid repeating a ‘major failing’ at the time of the Founding, when there was a great articulation of rights (for example, in the Declaration of Independence) but also, because of the prevalence of chattel slavery and the political subordination of large segments of society, a graphic failure to live up to those principles. As she contemplates how the United States can prevent that same failure from re-occurring internationally, one focus for Rivers will be on achieving consistency in forcefully stating, and then implementing protections for, human rights.”

Professor Cass Sunstein’s Presentation

Sunstein opened by saying he would make two major points:

  • First, . . .the U.S. conception of rights [in 1776] was a historical outgrowth of a sustained attack on monarchical legacy and the notion that some people rank above others by birth. Rights, [ however,] reflected a belief in human  dignity and citizenship.
  • Second, ”’freedom from desperate conditionshad widespread support at the Founding. Although it was not constitutionalized in any sense, . . . the articulation of, and public support for, this freedom later culminated in President Franklin Delano Roosevelt’s Second Bill of Rights. Thus, . . . there is a degree of continuity between newer, twentieth century conceptions of rights and freedoms and those from the founding era.” (Emphases added.)

Rights and citizenship: the “American Revolution is often considered to be ‘conservative,’ relatively speaking – or at least cautious and milder than the French and Russian revolutions. But, . . . that characterization is misleading, given the major break with British legacy that occurred in the American colonies in the decades leading up to the revolution. During that time period, cultural notions of republicanism were popular, which led to fresh thinking about what governments ‘do’ and the purposes for which they exist. In America, ‘radical’ republicanism entailed self-government and eliminated social class-based hierarchies of various kinds. [The] so-called ‘down look’ of the poor – a sign they ‘knew their place’ and had resigned themselves to their lowliness. This down look changed as the explosive new ideas of liberty and equality took hold on society. John Adams wrote with amazement that ‘Idolatry to Monarchs, and servility to Aristocratical Pride, was never so totally eradicated from so many Minds in so short a time.’ . . . [This] quote is significant because Adams’s surprise is palpable – he did not express such obvious ‘shock’ in any of his other writings. The transformation upon which Adams was remarking involved people who once regarded themselves as subjects coming to regard themselves instead as citizens, who possess sovereignty. This is a major development, . . . and to lament on what the revolution did not accomplish is to miss the remarkable social and political restructuring that it set into motion.”

Citizenship as unifying theme in Bill of Rights. Shifting to the U.S. Bill of Rights, . . . the American Founders sought, above all, to guarantee the preconditions of effective self-government. (. . .We fail to understand the Bill of Rights if we see it as based solely on opposition to government, or on a kind of laissez-faire individualism.) “

“[Among the writings [of the Founders] is a convergence of several intellectual traditions, both theological and otherwise.”

“Turning to individual provisions of the Bill of Rights, . . . the jury trial protected by the Sixth and Seventh Amendments . . .  should be thought of not only in terms of the individual legal right created. The jury trial also allows for the participation of citizens – ones, who, prior to the Revolution, may have borne the ‘down look’ – in American civil and criminal justice systems. In deciding individual cases, jurors can modify the harsh edges of law by finding defendants innocent in close cases. And in carrying out these [duties?]. jurors also receive an education in the law itself.”

“In the same regard, . . . the right to private property, which creates a [sense?] of individual control (by protecting people’s holdings against government taking without compensation) but is also necessary for the status of citizenship. Since private property provides a means for people to live and support themselves, citizens possessing it are not solely dependent on the good will of government.”

“As for the Second Amendment, . . .  it is controversial in modern times. . . .[It] is a political right, which, at a minimum, prevents the federal government from outlawing state militias. These militias perform important democratic functions – by providing a training ground for the cultivation of virtue, and a constraint on potentially tyrannical government.”

The “Bill of Rights is not only about creating a sphere of individual liberty, free of government control, but also about creating conditions that would allow for the robust practice of citizenship.”

Social and economic rights: . . . [The] Founders gave no serious thought to including social and economic guarantees in the Bill of Rights. But . . . some of the founders’ writing, while not at the constitutional level, shows a surprisingly strong commitment to such guarantees. James Madison, for example, wrote of ‘withholding unnecessary opportunities from a few, to increase the inequality of property, by an immoderate, and especially unmerited, accumulation of riches.’ Madison also appeared in favor of ‘rais[ing] extreme indigence toward a state of comfort.’ Meanwhile, Thomas Jefferson, while not a framer of the Constitution, exerted a strong influence during the founding period and wrote of ‘lessening the inequality of property’ by ‘exempt[ing] all from taxation below a certain point, and . . . tax[ing] the higher portions of property in geometrical progression as they rise.’ . . . [S]ocial theorists Montesquieu, John Locke, and Thomas Paine, all of whom were read by the American founders,. . . [in their writings] similarly suggest a commitment to social and economic rights. [D]uring the constitutional framing period, there was widespread support in America for legislation that would provide poor people with the basic necessities of life and that, unlike in England, where so-called ‘outdoor relief’ to able-bodied poor people was restricted, nearly all U.S. states allowed that form of assistance.“

“FDR and the Second Bill of Rights: . . . In 1944, President Franklin Delano Roosevelt (FDR) delivered a State of the Union address to Congress, which connected the war against tyranny with the Great Depression and the subsequent effort to combat economic distress domestically. The speech characterized ‘the one supreme objective for the future’ as ‘security,’ a term with multiple meanings. For FDR, security entailed not only ‘freedom from fear’ but also ‘freedom from want.’ . . . FDR explicitly used the, threat from Germany and Japan as an occasion for a renewed emphasis on providing protection against the most serious forms of human vulnerability at home.”

“In his speech, FDR looked back to the framing of the Constitution and argued that the unalienable rights at the Founding had proved inadequate, since it had become obvious that ‘true individual freedom cannot exist without economic security and independence.’ That provided the justification for FDR laying out his ‘Second Bill of Rights,’ which included the right to employment, to a dwelling place, to medical care, and to a good education, among other rights. . . . Roosevelt did not mean for these rights to be judicially enforceable, and indeed . . . FDR would have ‘deplored’ this idea. In his speech, however, FDR did call on Congress to ‘explore the means for implementing the economic bill of rights-for it is definitely the responsibility of Congress to do so.’”

“FDR’s speech is significant for marking the collapse of the idea, prominent in the period before the New Deal, that freedom comes from an absence of government. It was also important because the Second Bill of Rights went on to influence the content of the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and dozens of foreign constitutions.”

Sunstein’s Responses to Commissioners’ Questions

The Commission’s Executive Director, Peter Berkowitz: Heagreed that the jury trial right is essential to citizenship in a liberal democracy, . . . [but] that few would contend the jury right to be appropriately labeled as a ‘human’ and/or ‘unalienable’ right. Is a jury trial, Berkowitz wondered, essential to human flourishing in non-democratic regimes?“

  • Sunstein responded: “[C]ertain protections in the [original] Bill of Rights are properly characterized as unalienable; off the top of his head, he . . . [said] that free speech and property rights, for example, qualify. . . . [He] was ‘hoping and gambling that many cultures have a ‘Locke-type’ figure that provides the philosophical founding for these rights in non-Anglo American traditions. When it comes to social and economic rights, Sunstein said the situation is somewhat different. Were those rights to qualify as unalienable, what is necessary would be ‘a theory about how, if people are living in desperate conditions, a universal right is being violated.’ He said that, in some sense, the destitute living on the street without food or shelter suffer from their humanity being ‘annihilated,’ but also said he was ‘groping for right verbal formulation’ to express this notion in terms of rights.“

Rabbi Dr. Meir Soloveichik, the Director of the Zahava and Moshael Straus Center for Torah and Western Thought at Yeshiva University and rabbi of Congregation Shearith Israel, said that “the founders often stressed that certain rights are pre-political – like the free exercise of religion. He asked . . . if some of the other rights contained inside the Bill of Rights are also pre-political. . . . Soloveichik also asked whether the promotion of social and economic rights at the hands of government, . . .will inevitably clash with individual liberty. (By way of example, Soloveichik noted that expanding health care coverage at times has been in tension with individual religious liberty claims.)”

  • Sunstein said the following: “[T]ension between different rights is inevitable, regardless of whether social and economic rights (rather than other kinds) are involved. Citing the U.S. Supreme Court decision Wisconsin v. Yoder, Sunstein said that it is clear that certain kinds of rights—for example. the right to religious free exercise – prevail over others in legal disputes, and that, in order to decide, courts sometimes will look at the severity with which a right is being infringed, a question over which reasonable people may disagree. He said that clashes are an occasional but not devastating consequence of a regime recognizing multiple rights. . . . Sunstein [also] said that the majority of the rights contained in the Bill of Rights are pre-political, but that that is not at odds with acknowledging the Bill of Rights as being fundamentally ‘about’ citizenship.”

Professor Paolo Carozza, Professor of Law and Concurrent Professor of Political Science at the University of Notre Dame, where he also directs the Kellogg Institute for International Studies, asked Sunstein to elaborate on the nature of social and economic rights, and his rationale for saying that they are judicially unenforceable. . . .”

  • Sunstein “said that he had a ‘mundane’ account of why they are not judicially enforceable, and that is because allocative decisions are not well suited, institutionally, for judicial oversight. He cited the example of judges in South Africa facing severe challenges when attempting to enforce social and economic rights in that country.”

Dr. Christopher Tollefsen, Distinguished Professor and Chair of Philosophy at the University of South Carolina,“brought up the right to a jury trial, saying that he would have thought that the notion underlying it is not citizenship, . . ., but rather fairness. Tollefsen asked if there was a more pluralistic set of directions that the notion of dignity ‘can go in’ that does not need to get ‘filtered through’ citizenship.

  • Sunstein “agreed that the jury right is most fundamentally about fairness, but he pushed back against Tollefsen’s labeling citizenship as just a ‘bonus’ in the Bill of Rights. Sunstein said that it was more like a by-product of notions central to our constitutional system. Sunstein further explained that it is hard to understand the Bill of Rights outside the context of a revolution recently fought for republican self-government. In his view, modern observers tend to read it in a way that is de-historicized.”

Dr. David Tse-Chien Pan, Professor of German at the University of California, Irvine, “wondered if, in U.S. foreign policy, any defense of human rights necessarily entailed creating republican self-government everywhere. He asked Sunstein if, in his view, there could be a . . . [more] modest role for human rights that does not necessitate regime change.”

  • Sunstein “answered that yes, the U.S. can hold republican self-government up as ideal while still working with other types of regimes. In Sunstein’s view, the writings of the American founders speak deeply to nations and peoples that are ambivalent about republican self-government, and part of the reason may be the writings’ emphasis, though never quite expressed in these terms, on human dignity.”

Dr. Russell A Berman, the Walter A. Haas Professor in the Humanities at Stanford University and a Senior Fellow at the Hoover Institution and current Senior Advisor in Policy Planning at the Department of State, “asked why FDR would have, in Sunstein’s words, ‘deplored’ the judicial enforcement of social and economic rights.”

  • Sunstein “said that FDR was not a fan of judicial ‘aggressiveness’ generally and would have been attuned to tradeoffs and difficulties inherent in economic allocation. That FDR nonetheless was insistent that social and economic guarantees be labeled as ‘rights,’ in Sunstein’s view, speaks to the president’s view that they have some sort of moral foundation. Furthermore, that FDR was willing to embrace the rights in a presidential speech, but would probably not have elected for [them to] be extensions to the Bill of Rights, may have had something to with his belief – shared by James Madison in his own day – in ‘infusing the culture’ with ideas that eventually become part of the national fabric. Sunstein pointed out that the right to education, and bans on monopolistic corporations, still widely embraced in the 21st century, show that Roosevelt really did play an enduring role in shaping our national consciousness.”

Professor Hamza Yusuf Hanson, the President of Zaytuna College, the first accredited Muslim liberal arts college in the United States, and Dr. Jacqueline Rivers, Lecturer in Sociology at Harvard University, exchanged ideas regarding private property. Hanson said that scholar Richard Weaver once described it as the ‘last metaphysical right’ that people agree upon, but that, in the 20th and 21st centuries, it has not received as much attention as it did in the time of Locke and the American revolutionaries.”

  • Sunstein “said that, in Western countries, the perceived need to fight for property rights is not acutely felt, because property is relatively secure in these places. But in other countries where those rights are most needed, the idea of private property is under attack.

Rivers “segued into consideration of other types of property. She noted that the American welfare system is still weaker than in some other Western countries. Could that be, she wondered, because America has become overcommitted to protecting private property?”

  • Sunstein “described himself as a proponent of private property and saw no conflict between endorsing private property rights alongside social welfare benefits. Sunstein brought up President Ronald Reagan, for whom he once worked, saying that Reagan was on record for endorsing a right to education and other rights conventionally associated with more socially progressive advocates.” 

Chair Mary Ann Glendon thanked Sunstein for being helpful in achieving one of the most challenging parts of the Commission’s overarching task – showing a degree of continuity between the Founding and the New Deal, and from New Deal to the Universal Declaration of Human Rights (UDHR). She asked if the Bill of Rights leaving out social and economic guarantees could be thought of as an instance in which the founders took for granted the local associations and arrangements that would care for indigent persons.

  • Sunstein “answered affirmatively, saying that the Constitution contemplated institutional pluralism. He noted that, in the early years of the republic, the national government had a limited role and the Bill of Rights did not apply to states.”

Professor Orlando Patterson’s Presentation

“Patterson’s first main point was that the idea of rights and the idea of freedom overlap but are not interchangeable.”

“The United States has long seen itself as the ‘Land of the Free,’ and, as the global leader of the free world, its “mission” has been to ensure freedom of its citizens to a degree not enjoyed in many other countries. But Patterson said that another concept has come to compete with this notion. Especially since World War II, U.S. has come to embrace individual rights in fits and starts.”

“Patterson expanded on the distinction (freedom vs. rights) by clarifying what, in his mind, ‘freedom’’means. He referred to it as a tripartite idea.”

  • First, human persons are free, at least to the degree they are not under power of others, to make choices, to do what they want, and to achieve the desires they set for themselves.”
  • Second, they are free to exercise power to influence the world. (Patterson called this “empowerment” and cited Indian economist and philosopher Amartya Sen.) For long periods of human history, Patterson argued, this type of freedom was associated with power over other people. This is important to recognize because, for him, freedom is not the opposite of power, even though it is commonly held to be.”
    • “To support his argument.Patterson mentioned “the Southern slaveholding conception of freedom” in the United States, which entailed the freedom of wealthy landowners to control the bodies and labor of African-Americans and was famously discussed by Abraham Lincoln and Stephen Douglas in their debates.”
    • “Even though slavery has been abolished in America for many years, Patterson said that freedom as ‘power over others’ continues in the 21st century – in the form of some people controlling large amounts of property.”
  • Third, people are free, according to Patterson, to share in the collective power of groups. He referred to this as civic freedom, and as best realized through democracy.”

“Patterson called tripartite freedom quintessentially Western in origin, rather than universal. He explained that, although English philosopher John Locke held freedom to be ‘written on the heart of man’ (Patterson’s words), freedom actually involves an ancient, culturally specific, way of looking at the world. What is uniquely Western is not only the tripartite nature of freedom, but also its relative status – in other words, that freedom is valorized as one of the pinnacle values of civilization. Contributing to this prioritization, . . [was].the religion that fashioned the West, Christianity (which emphasizes redemption, sacrifice as the way to free one’s self from spiritual slavery), as well as earlier, Roman notions of liberty. Patterson compared the spread of freedom across the world to Christian missionary work, arguing that freedom became more universal over time. This, in his view, has not always been without negative consequences. Military interventions in Iraq have shown that assuming all people (and especially non-Westerners) to desire freedom can be wrong and even dangerous.”

“‘Rights’ are distinguishable from freedom. For Patterson, they represent a set of claims concerning our condition as human beings. The claims are moral in nature, and their protection is necessary to preserve our most fundamental sense of what it means to be human. Rights are inherently egalitarian, whereas with ‘freedom,’ Patterson argued, there is no such assumption of equality.”

“Patterson then commented on America’s complex relationship between rights and freedom, stressing that the American tradition differs from the European one. In Britain, Patterson said, there frequently has been skepticism about rights. The English jurist and social reformer Jeremy Bentham, for example, called natural rights “nonsense upon stilts.” In the United States, there has been a stronger embrace of rights, but also a lingering uneasiness about them, according to Patterson. He mentioned that the Bill of Rights was a compromise measure that, at its adoption, few if any thought was perfect. Patterson noted that, throughout American history, there has been elite opposition to rights held by ‘the masses.’ He also mentioned the passage of the 14th Amendment and the Slaughterhouse cases as important rights milestones.”

“Patterson quoted an intellectual descendant of Jeremy Bentham, the philosopher Alasdair McIntyre, who once described rights as a ‘fiction,’ writing that ‘belief in them is one with belief in witches and unicorns.’”

“Then Patterson shifted gears to discuss the U.S. ‘Rights Revolution,’ which he believes stands in stark contrast with the history preceding it. His view is that it is anachronistic to posit that rights are the most critical element of America’s founding documents. That is because, in Patterson’s view, rights did not gain currency until much later – specifically, when the horrors of Nazism during World War II shocked the world’s conscience, triggering people’s shared moral instincts that there must be some baseline that all people are owed, inhering their basic humanity. The war’s atrocities combined with anti-imperial movements across the world and other developments: Black Americans fighting for freedom and returning home, wondering what their status would be in American politics, and what they held in common with others fighting for freedom; a shift in decisions by the U.S. Supreme Court; and the social movements waged by women and other groups. These trend lines converged and culminated in the 1970s, a decade which Patterson called quite extraordinary, even though, in his view, America in many respects is still (in the year 2019) in the midst of the lingering rights revolution.”

“Patterson held that the next phase of the rights revolution, almost as important as War II in terms of focusing attention on the deprivation of human rights, began to occur in the 1980s, with the emergence of the fight against modern slavery and human trafficking. Patterson emphasized that trafficking is normally spoken about as a violation of rights, more than it is a violation of freedom. He mentioned sex trafficking, the widespread condemnation of which has led to an alliance of strange bedfellows – the evangelical right and feminist left. He also mentioned labor trafficking, and employers being unable to say ‘stay out of our business’ as various forms of on-the-job inequity are now challenged and subject to outside scrutiny.”

“Patterson gave a tip of the hat to the U.S. Department of State for publishing its annual Trafficking in Persons (TIP) report, and said that, when it comes to condemning trafficking, the Department is better off using the language of rights than it is using the language of freedom. Each year, more and more people are able to make rights claims – for example, women in forced marriages, who have been newly defined as ‘slaves.’ Patterson described the language of rights as infinitely expandable to accommodate new kinds of claims. He saw this largely as a good thing: America is leading by example, expanding rights for an ever increasing number of people. As intimated at other points during his remarks, Patterson said that although he 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.”

Patterson’s Responses to Questions

Executive Director Berkowitz “thanked Patterson for his thoughtful talk and then explained that the Commission has heard some criticisms of rights that are very similar to ones Patterson made about ‘freedom’ – that rights are exclusively Western, for example. Berkowitz said he welcomed Patterson’s thoughts on whether criticisms are equally applicable to both concepts.”

  • Patterson “said that, in his view, the [assertion that] rights are Western’ claims are shallower than those waged against freedom. Rights have origins that go at least as far back as the Middle Ages and Reformation. Admitting that there is a complicated story of how the concept of rights evolved and influenced public discourse, Patterson said that ‘rights talk’ – while Western in origin – was, from very beginning, seen as applying to all human beings, unlike freedom. Fundamental rights, thus, were extra-territorial and extra-political.”

Tollefsen “expressed some sympathy for the distinction Patterson drew between freedom and rights. Nothing that there are articulations of freedom that can come into tension with rights, Tollefsen cited the ‘freedom to consume,’ which, when enjoyed, can sometimes mean disregarding the rights of those whose exploited labor produced goods consumers enjoy. But Tollefsen also worried that any moral concern over modern-day slavery must involve an appeal to some notion of freedom.”

  • Patterson “responded that the concepts in question (rights, freedom) definitely overlap. But he said that, when it comes to international advocacy, work on behalf of freedom does not always have the same force or effect that rights-based advocacy does. Patterson mentioned Freedom House, which honors  countries on their honoring of civil and political rights, and contrasted its work with Department’s TIP report. Patterson discussed the TIP report’s 3-tier methodology, a provided the example of Japan, where there was great consternation when the U.S. did it in its TIP report. In response to the demotion, Japan made important reforms. Patterson’s basic point was that the United States can promote liberal democracy (and thus-freedom) abroad but must remember that democracy requires preconditions in order to function successfully. He argued that, when it comes to making rights claims, those preconditions are not as necessary because people have rights regardless of what political system is in place.”

Soloveichik “acknowledged that the concept of freedom has been misused and perverted at times throughout America’s history. But then he cited the abolitionist movement, during which the concepts of freedom and rights appeared to go hand in hand. Soloveichik also mentioned Martin Luther King, Jr., one of whose most famous lines is “let freedom ring.” Soloveichik’s question was whether freedom and rights enhance one another.”

  • Patterson “responded that, yes, at America’s best moments – in some of President Abraham Lincoln’s writings, for example, during the struggle for women’s suffrage and equality, etc. – rights and freedom complement each other ‘sublimely.’ But during our country’s worst moments, the two concepts are twinned in perverted ways – for example, during the Confederacy, when southern liberty was held up as an ideal while African American slaves’ rights were openly and appallingly violated.“

Katrina Swett, the President of the Tom Lantos Foundation for Human Rights and Justice,  said “that she had always thought of freedom and human rights as inextricably connected, but that Patterson’s writings and lecture were very challenging to her past understandings. She wondered as a practical matter if free and democratic societies do the best job of protecting rights.”

  • Patterson “said that, absolutely, they do. But then he mentioned that somewhere on the order of 70% of the world’s chocolate is (or previously was) produced by child labor. In recent years, thousands of NGOs have pressured chocolate manufacturers, farmers, and governments to change this situation. Patterson’s point was that, when it comes to protecting human rights, advocates can achieve progress even in non-democracies. (Democracies are ideal, but they are not the only regimes where rights can be protected.) In another example, he said that China has cut poverty in half. People are no longer starving – because China, though far from a democracy, in certain respects has honored the ‘right to food’ and the ‘right to life.’”

Chair Glendon concluded by thanking Patterson for helping the Commission with a problem it will have to confront – the difficulties and confusion inherent in using terms and concepts to which different groups impute various meanings and connotations.”

Public Comments

Several members of the public made comments. Here is a summary of the more substantive ones.

“A representative from the Center for Family and Human Rights spoke of the unintended consequences of rights expansion: Sometimes people have to give up certain rights in order to accommodate new definitions of rights – thus promoting a ‘competition of rights’ [and?] growing skepticism regarding the United Nations (UN) approach to protecting human [rights. The representative stressed that now is a prime opportunity for basic issues to be [reframed?]”

“Fr. Mark Hodges, an Orthodox priest. spoke about the Christian conception of rights, framework which involves concepts like universal dignity and free will. He urged the Commission to prioritize religious freedom and the right to life.”

“A representative from the Heritage Foundation said that when international bodies like the UN consider all rights on equal footing, it is worth asking whether they are confusing certain ‘desirable ends’ with human rights. He asked how long internal conflicts can persist within the global human rights movement before we reach a point of human rights paralysis, and he wondered whether the proliferation of rights does violence to the notion of unalienable rights. Commissioner Paola Carozza responded that, in international human rights law, there actually is a hierarchy of rights – some are non-derogable, and some achieve status of jus cogens, while others do not.”

“A law professor from the University of Oklahoma then asked whether the comments submitted to the Commission by various civil society groups will be made public, and suggested the Commission publish specific questions, and set specific deadlines, so that outside groups can contribute more efficiently.”

“Representatives from Human Rights Watch urged the Commission to invite ‘grassroots’ human rights defenders to come testify, saying their work is crucial but does not enter into ‘esoteric academic debates.’”

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[1] Update on U.S. Commission on Unalienable Rights, dwkcommentaries.com (Feb. 19, 2020).   

[2] Comm’n Unalienable Rts, Agenda (Nov. 1, 2019); Comm’n Unalienable Rts., Minutes (Nov. 1, 2019).

 

U.S. Commission on Unalienable Rights Responds to Criticisms

On September 15, 2019, Dr. Peter Berkowitz, the Executive Director of the State Department’s Commission on Unalienable Rights, published responses to criticisms that have been leveled against the Commission.[1] Here are those responses followed by this blogger’s reactions to same.                                    

Dr. Berkowtiz’s Responses to Criticisms

“The announcement of the . . . [Commission’s} existence and mandate immediately triggered a barrage of skepticism, indignation, and anger. The misunderstandings that the criticisms embody underscore the urgency of the commission’s work.”

Characterization of the Criticisms

“The very idea of human rights has come under fire from the left and the right for its supposedly sham universality. Hard-core progressives contend that human rights are nothing more than a vehicle for advancing Western imperialism and colonialism. Single-minded conservatives maintain that the essential function of human rights is to erode national sovereignty and promulgate progressive political goals around the world.”

“More measured and compelling objections focus on the excesses to which the human rights project has been exposed. The proliferation of rights claims has obscured the distinction between fundamental rights that are universally applicable and partisan preferences that are properly left to diplomacy and political give-and-take. International institutions charged with monitoring and safeguarding human rights sometimes include in their membership countries that flagrantly violate human rights and which wield international law as a weapon to undermine them. The growth of international institutions, courts, and NGOs dedicated to human rights has created a cadre of bureaucrats, judges, scholars, and activists. Many of these experts and advocates are dedicated to the cause of human rights and serve with distinction, but all face the temptation — typical of any professional community — of succumbing to special interests and self-serving agendas. And an overemphasis on universal rights can distract from other essentials of political life, including the discharge of responsibilities, the cultivation of virtues, and the caring for community.”

U.S. Role in Evaluating These Criticisms

“It’s especially important for the United States to respond thoughtfully to the confusion and controversy swirling around human rights because of our country’s founding convictions. The Declaration of Independence affirms “certain unalienable Rights” — these include “Life, Liberty, and the pursuit of Happiness” — that inhere in all human beings. The Constitution establishes the institutional framework that enables Americans to secure these fundamental rights through democratic self-government.” (Emphasis added.)

Moreover, as a driving force behind the Universal Declaration of Human Rights — adopted by the U.N. General Assembly in December 1948 — the United States reaffirmed the nation’s founding conviction that all human beings deserve the rights and liberties secured by its Constitution. At the same time, the Constitution leaves to the American people and their elected representatives the discretion to determine the role in the country’s foreign policy played by the universal rights that Americans and non-Americans share.” (Emphasis added.)

Evaluation of Criticisms

Yet an array of scholars, pundits, former political officials, and organizations are up in arms about the commission. Their critiques are illuminating, though not entirely as they intended.”

First, critics charge that the Trump administration’s record advancing human rights renders it unfit to establish a commission to provide advice on human rights. Set aside that the administration has engaged Kim Jong-un in pursuit of peaceful dismantlement of North Korea’s nuclear program; imposed tough sanctions on Vladimir Putin’s belligerent Russia; supported a democratic transition in Venezuela; opposed Iran’s quest to impose a brutal hegemony throughout the Middle East; and convened in Bahrain an international forum attended by Saudi Arabia and the United Arab Emirates, among others, to discuss the economic reconstruction of the West Bank and Gaza and peace between Israel and the Palestinians. Isn’t the State Department’s determination to improve understanding of the connections between America’s founding principles and the administration’s foreign policy a sign of the enduring significance it attaches to human rights?”

Second, critics detect a sinister ambition in Secretary Pompeo’s “distinction between unalienable rights and ad hoc rights granted by governments.” They worry that authoritarian countries around the world will conclude that the guiding purpose of the Commission on Unalienable Rights is to redefine human rights narrowly. But the American constitutional tradition turns on the difference between universal rights that are essential and unchanging and the contingent rights created by the consent of the governed that serve as a means to protecting citizens’ fundamental freedoms, and which are bound to vary from country to country.” (Emphasis added.)

Third, critics express dismay that the commission was charged with examining the reasoning by which claims about human rights are assessed, because they believe that the debate about the foundations and the meaning of human rights has all but ended. It has been asserted, for example, that codification of human rights by widely ratified international treaties (in many cases, though, not ratified by the United States) renders the commission’s work superfluous. This contention illustrates problems that gave rise to the panel. Contrary to the critics’ belief, a right does not become inalienable simply because an international treaty says so. And the refusal of the United States to ratify many such treaties demonstrates the persistence of questions about what counts as a human right and about the status of such rights in international law.” (Emphasis added.)

Fourth, critics have warned that the commission intends to strip members of various groups and communities of their rights. In fact, the commission proceeds from the premise that all persons — regardless of faith, nationality, race, class, and gender — share essential rights grounded in our common humanity.” (Emphasis added.)

Fifth, critics accuse the commission of lacking intellectual and political diversity. In fact, the political diversity and variety of intellectual perspectives represented compares quite favorably with the uniform political and intellectual outlook that informs so many of those who have condemned the commission.

“In one respect, the quick-out-of-the-gate criticisms of the State Department’s Commission on Unalienable Rights have been highly constructive. By throwing into sharp relief the passion and perplexity that surround the discussion of human rights, the critics themselves unwittingly make the case for sober and deliberate reflection about the roots of human rights in the American constitutional tradition, and their reach in the conduct of America’s foreign affairs. That is precisely the task that Secretary Pompeo has directed the Commission on Unalienable Right to undertake, and which its members have proudly embraced.” (Emphasis added.)

This Blogger’s Reactions

Some of the highlighted portions of Berkowitz’s comments correctly observe that some of the criticisms expressed concern that the Commission was designed to reduce the scope of international human rights in accord with the political views of the Trump Administration, but Berkowitz fails to acknowledge statements by Secretary Pompeo that prompted these criticisms.

Berkowitz also acknowledges, as he should, that the U.S. “Constitution establishes the institutional framework that enables Americans to secure these fundamental rights through democratic self-government.” But he fails to note that the U.S. Declaration of Independence itself states, ““to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed” immediately following its proclamation, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” (Emphasis added.)

In other words, the U.S. Declaration itself implicitly recognizes that it does not secure the rights it proclaims because it does not create binding legal obligations. Instead the Declaration contemplates that the not yet established U.S. government subsequently will enact statutes that protect the unalienable rights, only three of which are specifically mentioned in the Declaration while alluding to a larger category of unalienable rights. These subsequent statutes are not “ad hoc” and lesser rights as Secretary Pompeo likes to say. [2]

Similarly the U.N. Universal Declaration of Human Rights (UDHR) from 1948, which the Commission, in other contexts, properly mentions in the same breath as the U.S. Declaration of Independence, does not create any binding legal obligations. Instead, the UDHR says, “every individual and every organ of society , keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure [these rights and freedoms] universal and effective recognition and observance.” In other words, the UDHR itself contemplated that there should be additional measures, including national legislation and international treaties, to secure the rights and freedoms articulated in the UDHR. Again, these are not “ad hoc” and lesser rights.(Emphasis added.)

In addition, the Commission’s Chair Mary Ann Glendon, the author of a leading book about the creation of the UDHR, has said that one of the principles of the UDHR’s framers was “flexible universalism.” The UDHR framers “understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements.” For example, . . . [UDHR’s] Article 22 provides: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (Emphasis added.) Another example is Article 14, which states, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution,’ but is silent on how that right should be protected. [3]

“Flexible universalism” also exists in human rights treaties that allow for their ratification by nation states with reservations for at least some of the treaty’s provisions. And, of course, a state may chose not to ratify a treaty and thereby not be bound by any of its provisions. Moreover, there are mechanisms for other states and international agencies to address these reservations and non-ratifications. For example, in the U.H. Human Rights Council’s Universal Periodic Review process, the Council and other states may, and do, make recommendations for states to withdraw reservations or ratify certain treaties. But these are only recommendations.[4]

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[1] Berkowitz, Criticisms Illustrate Need for State Dept. Human Rights Panel (Sept. 15, 2019). Dr. Berkowitz also serves this year on the Department’s Policy Planning Staff while on leave as Ted and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University. He is the author of books and articles about constitutional government, conservatism, liberalism and progressivism, liberal education and Israel and the Middle East. He holds degrees from Swarthmore College (B.A.), Hebrew University of Jerusalem (M.A.), and Yale University (PhD and JD). (Com’n Unalienable Rights, Member Bios.) 

[2] E.g., Another Speech About Unalienable Rights by Secretary of State Michael Pompeo, dwkcommentareies.com (Sept. 7, 2019); Criticism of the U.S. Commission on Unalienable Rights, dwkcommentaries.com (July 20, 2019).

[3] Human Rights Commentaries by Mary Ann Glendon, Chair of the Commission on Unalienable Rights, dwkcommentaries.com (Nov. 2, 2019). 

[4] E.g., U.N.’s Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review, dwkcommentaries/com (Sept. 20, 2018); U.S. Ratification of the International Covenant on Civil and Political Rights, dwkcommentareis.com. (Feb. 5, 2013) (U.S. ratification had five reservations, understandings, four declarations and a proviso).

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).

 

 

 

Criticism of the U.S. Commission on Unalienable Rights

On July 8, 2019, the U.S. State Department launched the U.S. Commission on Unalienable Rights.[1] This new Commission deserves both commendation and criticism. Its positive points were discussed in a prior post. Now we look at the many legitimate criticisms of this new institution.

Erroneous Premise

The basic premise for the Commission was stated by Secretary Pompeo In his remarks at its launching, when he alleged, without proof, that “international institutions designed and built to protect human rights have drifted from their original mission” and that they and nation-states “remain confused about their respective responsibilities concerning human rights.” Therefore, the Secretary asserted that “the time is right for an informed review of the role of human rights in American foreign policy” and that the Commission was charged with straightening all of this out.

This premise, however, is erroneous. The body of human rights law today is very extensive as developed by U.S. and other national and international courts and institutions. For example, an edition of a major U.S. book on the subject, primarily for law students, has 1,259 well-documented pages plus a 737 page collection of selected human rights instruments and bibliography.[2] Like any large body of law developed by different courts and institutions over time, there will be an ongoing effort to eliminate or minimize inconsistencies. But an informed knowledge of this body of law and institutions would show that these international institutions have not “drifted from their original mission.” Nor are nation states confused about their responsibilities in this area.

Secretary Pompeo’s pious assertions of the need to ascertain what human rights mean were castigated by Roger Cohen, a New York Times columnist. “There is no need to reinvent the wheel, Mr. Secretary. A lot of bipartisan and international consensus, consolidated over the postwar decades, in the aftermath of the Holocaust and other horrors, exists as to what human rights are and what America’s role in defending them should be.”[3]

Pompeo also has claimed that the continued violations of human rights shows that there is confusion about the law. That is also false. Yes, there continue to be violations, showing the inherent weaknesses of human beings and institutions, but not confusion about the law. If this were a valid argument, then would ridiculously claim that the laws against murder and other forms of homicide were confusing because such horrible acts still occur.

Erroneous Reference to Natural Law

The U.S. Declaration of Independence refers generally to “the laws of nature and of nature’s God” and states that men “are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” This is the purported basis for the Commission’s Charter saying it will provide the Secretary with “fresh thinking about human rights and . . . reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights.” (Para. 3) (emphasis added).

Secretary Pompeo made this same argument in his July 7 article in the Wall Street Journal, where he said, “When politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights created by governments.”

Roger Cohen, a New York Times columnist, criticized this reference to the concept of natural law and natural rights, circa 1776, by reminding us that ”these ‘natural rights’ at the time, of course, included chattel slavery and the dehumanization of black people, as well as the disenfranchisement of women.” In short, “the ‘natural’ rights of 1776 are not the human rights the [U.S.] helped codify in 1948 [in the Universal Declaration of Human Rights].”

Moreover, Secretary Pompeo and others at the State Department apparently forgot to read the very next sentence of the U.S. Declaration: “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. government subsequently was established by the U.S. Constitution “to secure these rights [mentioned in the Declaration of Indepence]” and its later enactment of human rights statutes and regulations are based upon “the consent of the governed.” These are not “ad hoc” laws (a legal category not known to this attorney-blogger) as Secretary Pompeo dismissively calls them.

Similar language occurs in the Universal Declaration of Human Rights: “[H]uman rights should be protected by the rule of law” (Preamble); “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).[4] In other words, there will need to be additional treaties and laws to protect and secure these rights. This point was emphasized by the Commission’s Chair, Mary Ann Glendon in her book about the Universal Declaration: “The Declaration’s principles, moreover, have inccreasingly acquired legal force, mainly through incorporation into national legal systems.”

Indeed, the New York Times contemporaneously reported with the adoption of the UDHR in December 1948, “The United Nations now will begin drafting a convention that will be a treaty embodying in specific detail and in legally binding form the principles proclaimed in the declaration.” One such treaty was the International Covenant on Civil and Political Rights, which entered into force on March 23, 1976, which was “three months after the date of the deposit with the Secretary-General of the United Nations of the 35th instrument of ratification or instrument of accession.” (Art. 49(1)) The U.S., however, did not ratify this treaty until April 2, 1992, when the U.S. Senate granted its “advice and consent” to same with certain “understandings” and reservations, and this treaty did not enter into force for the U.S. until September 8, 1992.[5]

The U.N. system has created many other multilateral human rights treaties and other international institutions to interpret those rights, resolve conflicts among them and disputes about compliance with them.[6]

Possible Invalid Objectives

Actions and words of the current U.S. Administration have led some critics of this Commission to speculate that the Commission is a ruse to conceal the Administration’s true objectives: eliminate legal rights to abortions and other reproductive procedures and to LGBBTQI individuals. If that is the case, then the Commission is a fraud.

The Chair of the House Foreign Affairs Committee, Rep. Eliot Engel (Dem., NY) says, “This commission risks undermining many international human-rights norms that the United States helped establish, including LGBTQI rights and other critical human-rights protections around the world. . . . [and now] the Secretary wants to make an end run around established structures, expertise, and the law to give preference to discriminatory ideologies that would narrow protections for women, including on reproductive rights; for members of the LGBTQI community; and for other minority groups.”

The American Jewish World Service through its Its director of government affairs, Rori Kramer, denounced the creation of the commission because of what it said was a religious bent to the panel. “As a Jewish organization, we are deeply skeptical of a government commission using a narrow view of religion as a means to undermine the ecumenical belief of respecting the dignity of every person, as well as the fundamental human rights enshrined in the Universal Declaration of Human Rights. We fear this commission will use a very particular view of religion to further diminish U.S. leadership on human rights.”

As University of Chicago Law Professor Eric Posner observed, the Commission’s “plainly stated goal is not just to wipe away the baleful foreign influences of human rights ‘discourse’ but to revive [conservative] 18th century natural law . . . . [and] an indirect endorsement of contemporary [Roman] Catholic conservative intellectuals.”

Another professor, Clifford Rob of Duquesne University, believes the Commission is “ likely to champion the ‘natural family’ and ‘traditional values,’ to claim that individual self-defense is another natural and unalienable right and to express hostility to economic and cultural rights.

Rebecca Hamilton, an Assistant Professor of Law at American University Washington College of Law and a former prosecutor for the International Criminal Court and a former employee of the International Criminal Tribunal for the former Yugoslavia,warned that the “’natural law’ language was code for religiously-infused opposition to reproductive rights and to protections for members of the LGBTQ community.” She points out that the concept for this Commission was proposed by Professor Robert George, a “staunch opponent of same-sex marriage and co-founder of the anti-gay rights group, National Organization for Marriage.”[7]

Other Legitimate Sources of Human Rights Were Ignored

The Trump Administration’s statements about the Commission seem to be saying that only the U.S. Declaration of Independence and the Universal Declaration of Independence are the only ones that count and that studying them will yield only one set of answers on the many issues of human rights. That is clearly erroneous, in this blogger’s opinion.

The Declaration of Independence, in addition to talking about “life, liberty, and the pursuit of happiness” says that they are “among” the category of “certain unalienable rights.” Thus, there are other rights in that category. In addition, there undoubtedly are times when there are conflicts among “life, liberty and pursuit of happiness” and the other such rights that will need to be resolved.

Most importantly, the U.S. Declaration says “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, governments need to enact statutes and rules to protect and secure these rights, and the need for “consent of the governed” inevitably leads to arguments and disputes about the content of such statutes and rules and to the need, from time to time, to amend those statutes and rules and adopt new ones, as circumstances change as they certainly have in the 243 years since the adoption of the U.S. Declaration.

Indeed, the U.S. federal and state governments have enacted many statutes and rules to protect and secure human rights. And they should not be ignored or dismissed as “ad hoc” measures as Secretary Pompeo did in his article in the Wall Street Journal.

The Universal Declaration is subject to the same qualifications. It identifies more rights than the four specifically mentioned in the U.S. Declaration, but there undoubtedly will be conflicts among those rights that will need resolution.

Moreover, the Preamble of the Universal Declaration says that “human rights should be protected by the rule of law [outside that document itself]” and that “Member States have pledged to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.” This U.N. document also proclaims “that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure their universal and effective recognition and observance.” In other words, there will need to be additional treaties and laws to protect and secure these rights.

The Commission’s Membership May Not Comply with Federal Law

 Under the Federal Advisory Committee Act of 1972 (Pub. L. 92-463), “the function [of such] advisory committees [or commissions] shall be advisory only, and that all matters under their consideration should be determined in accordance with law, by the official, agency, or office involved.”[8]

Moreover, under this federal statute, the committee or commission members must be “drawn from nearly every occupational and industry group and geographical section of the United States and its territories”  and must be “fairly balanced in terms of the points of view represented and the functions to be performed.” (Emphasis added.)

Although as noted in a prior post, the resumes of this Commission’s members are impressive, some critics have questioned the balance of their views on the central issues facing the Commission..

Another federal law that may have been violated in the establishment of this Commission is the failure to seek and obtain the counsel of the Department’s Bureau of Democracy, Human Rights and Labor, which is charged with championing “American values, including the rule of law and individual rights, that promote strong, stable, prosperous, and sovereign states. We advance American security in the struggle against authoritarianism and terrorism when we stand for the freedoms of religion, speech, and the press, and the rights of people to assemble peaceably and to petition their government for a redress of grievances.”

Conclusion

Therefore, contemporary advocates of international human rights need vigilantly to observe the work of the Commission, applaud its work when appropriate and critique that work on other occasions.

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[1] See these posts to dwkcommentaries.com, which contain citations to many of the references in this post: Is Trump Administration Attempting To Redefine International Human Rights? (June 16, 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); U.S. Commission on Unalienable Rights Is Launched (July 8, 2019); More Comments on Commission on Unalienable Rights (July 9, 2019);; The Importance of the Universal Declaration of Human Rights (July 11, 2019); Additional Discussion About the U.S. Commission on Unalienable Rights (July 18, 2019); The U.S. Commission on Unalienable Rights: Partial Commendation (July 19, 2019).

[2] See Weissbrodt, Ní Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process (4th ed. 2009); Weissbrodt, Ní Aoláin, Rumsey, Hoffman & Fitzpatrick, Selected International Human Rights Instruments and Bibliography for Research on International Human Rights Law (4th ed. 2009). Professor Weissbrodt also has published an online “Supplementary Materials” for the casebook.

[3] Cohen, Trump’s Ominous Attempt to Redefine Human Rights, N.Y. Times (July 12, 2019).

[4] See The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).

[5] U.S. Ratification of the International Covenant on Civil and Political Rights, dwkcommentaries.com (Feb. 5, 2013).

[6] See the posts listed in List of Posts to dwkcommentaries—Topical: Law (TREATIES), including those that identify the treaties ratified by the U.S.; those signed, but not so ratified; and those not signed and ratified by the U.S.

[7] Hamilton, EXCLUSIVE: Draft Charter of Pompeo’s “Commission on Unalienable Rights” Hides Anti-Human Rights Agenda, Just Security June 5, 2019). Just Security publishes “crisp explanatory and analytic pieces geared toward a broad policy, national/international security, and legal audience; and (2) deep dives that examine the nuances of a particular legal issue.”

[8] Federal Advisory Committee Act, secs. 2(b)(6), 5(b)(2);  Gen. Services Admin., The Federal Advisory Committee Act (FACA).

 

 

 

The U.S. Commission on Unalienable Rights: Partial Commendation

On July 8, 2019, the U.S. State Department launched the U.S. Commission on Unalienable Rights.[1] This new Commission deserves both commendation and criticism. Below are its positive points, and a subsequent post will discuss the many legitimate criticisms of this new institution.

U.S. Primary Sources for Human Rights

According to Secretary of State Pompeo, the Commission regards the U.S. Declaration of Independence from 1776 and the Universal Declaration of Human Rights of 1948 as pillars of U.S. dedication to human rights. As the Secretary said at the launch, “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.”[2]

In other statements the Secretary has asserted that freedom of religion and belief is the foundational and most important freedom. While that perhaps could be debated, it is clearly an important freedom.

Both of these declarations indeed honor human rights, and the inclusion of the Universal Declaration is an implicit admission that the U.S. alone does not have all the answers on this subject. Here then are some of the key points of these two documents that call for commending the Commission.

U.S. Declaration of Independence

These are the familiar words from the U.S. Declaration of Independence of July 4, 1776: “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.”

Universal Declaration of Human Rights

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 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]

Some 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 the provisions of 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)
  • 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)
  • “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 status.” (Art. 2)
  • “Everyone has the right to life, liberty and security of person.” (Art.3)
  • “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” (Art. 4)
  • “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (Art. 5)
  • “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 an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” (Art. 8)
  • “No one shall be subjected to arbitrary arrest, detention or exile.” (Art. 9)
  • “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” (Art. 10)
  • “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty . . . .” (Art. 11(1).)
  • “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Art. 14(1).)
  • “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” (Art. 16(1).)
  • 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) (Emphasis added.)
  • “Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.: (Art. 19.)
  • “ Everyone has the right to freedom of peaceful assembly and association.” (Art. 20(1).)
  • “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family . . . .” (Art. 25(1).)

Other UDHR provisions, which have been overlooked in various comments about the Commission and which relate to its negative points to be discussed in a subsequent post, are the following: “[H]uman rights should be protected by the rule of law” (Preamble); U.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); “[E]very individual and every organ of society . . . shall strive . . . by progressive measures national and international, to secure . . . [these rights and freedoms] universal and effective recognition and observance”[Proclamation);[4] “The will of the people shall be the basis of authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage . . . .” (Art. 21(3).)

The importance and significance of these provisions were emphasized by the Commission’s chair, Mary Ann Glendon, in her book: A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). The Preface says the UDHR “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.”   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.”

Conclusion

The U.S. Declaration of Independence and the Universal Declaration of Human Rights indeed are major sources of human rights, and the Commission’s proclaiming them as important is an action to be commended.

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[1] See these posts to dwkcommentaries.com: 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);U .S. Commission on Unalienable Rights Is Launched (July 8, 2019); More Comments on Commission on Unalienable Rights (July 9, 2019); Additional Discussion About the U.S. Commission on Unalienable Rights (July 18, 2019).

[2] State Dep’t, Secretary of State Michael R. Pompeo Remarks to the Press (July 8, 2019).

[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; Kenton, Human Rights Declaration Adopted by U.N. General Assembly; U.N. VOTES ACCORD ON HUMAN RIGHTS, N.Y. Times (Dec. 11, 1948). The history of the UDHR and its not being legally binding on U.N. members or other states are discussed in The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).

[4] The U.S. has signed and ratified 19 multilateral human rights treaties in accordance with the Constitution’s Article II (2.2) requiring the “advice and consent” by two-thirds of the senators present at the vote. In addition, the U.S. has signed, but not ratified, nine other multilateral human rights treaties while at least seven significant human rights treaties that as of February 2013 had not been signed and ratified by the U.S. (See Multilateral Treaties Ratified by the U.S., dwkcommentaries.com (Feb. 9, 2013); 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. (Feb. 16, 2013).

 

 

 

 

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 30th 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).

 

More Comments on Commission on Unalienable Rights

Yesterday’s post covered the formal launch of the Commission on Unalienable Rights. Here are additional reactions to the Commission. [1]

Negative Reactions

 Senator Robert Menendez (Dem., NJ), the Ranking Member of the Senate Foreign Relations Committee, said that Mr. Pompeo’s argument for a new human rights panel was “absurd” and that the Trump administration “has taken a wrecking ball to America’s global leadership on promoting fundamental rights across the world.” Instead, “we need this President and this Secretary to actually champion human rights by standing up for America’s values and by using the framework that is already in place and which has been championed by prior administrations for decades, regardless of party.”

Representative Eliot Engel (Dem., NY). the Chair of the House of Representatives Foreign Affairs Committee, stated, “This commission risks undermining many international human-rights norms that the United States helped establish, including LGBTQI rights and other critical human-rights protections around the world. Decades ago, Congress created an entire bureau in the State Department dedicated to defending and reporting on human rights and advising the Secretary and senior diplomats on human rights and democratic development. Now the Secretary wants to make an end run around established structures, expertise, and the law to give preference to discriminatory ideologies that would narrow protections for women, including on reproductive rights; for members of the LGBTQI community; and for other minority groups.” Engel also noted that he had cosponsored a measure to prohibit funding for this new body that recently had been passed by the House.

The American Jewish World Service denounced the creation of the commission because of what it said was a religious bent to the panel. Its director of government affairs, Rori Kramer, said, “As a Jewish organization, we are deeply skeptical of a government commission using a narrow view of religion as a means to undermine the ecumenical belief of respecting the dignity of every person, as well as the fundamental human rights enshrined in the Universal Declaration of Human Rights. We fear this commission will use a very particular view of religion to further diminish U.S. leadership on human rights.”

Rob Berschinski, the Senior Vice President for policy at Human Rights First and a former  deputy assistant secretary of state in the Bureau of Democracy, Human Rights and Labor during the Obama administration, said well-established principles for advancing human rights already existed and did not need to be revamped. He added that most of the 10 people named to the new commission viewed human rights largely through the lens of religious freedom. “At first blush,” he said, “the commission certainly seems to reinforce the perception that the administration and State Department under Secretary Pompeo uniquely emphasize religious freedom amongst universal rights.”

Another observer also voiced negative views of the Commission. “We don’t need this commission,” said Michael Posner, the State Department’s assistant secretary for DRL from 2009 to 2013. “What we need is for the U.S. government, the secretary of state and the president to abide by and uphold international human rights standards we already have adopted.”

Joanne Lin of Amnesty International said, “”If this administration truly wanted to support people’s rights, it would use the global framework that’s already in place. Instead, it wants to undermine rights for individuals, as well as the responsibilities of governments. This approach only encourages other countries to adopt a disregard for basic human rights standards and risks weakening international, as well as regional frameworks, placing the rights of millions of people around the world in jeopardy.”

Positive Reactions

Daniel Philpott, a University of Notre Dame professor who was initially mentioned as a potential commission member, said that natural law reflects a concern that human rights have gone off the rails, in part because of abortion and claims about marriage rights. “The idea is these claims of human rights are not based upon natural law or the truth of the human person. In a sense, these are false claims to human rights. It brings down the cause of human rights in general. Why should we pursue other human rights if human rights can be anything one faction or party advocates them to be?”

The Wall Street Journal notes that the Chair of the new Commission, Mary Ann Glendon, opposes abortion and same-sex marriage. And Tony Perkins, the president of the conservative Family Research Council, endorsed the Commission as an effort to “help further the protection of religious freedom, which is the foundation for all other human rights.”

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[1] Press Release: Menendez Questions Intent and Impact of Trump Admin’s New Commission on Unalienable Rights (July 8, 2019); Press Release, Engel Statement on State Department “Unalienable Rights” Commission (July 8, 2019); Wong & Sullivan, New Human Rights Panel Raises fears of a Narrowing U.S. Advocacy, N.Y. Times (July 8, 2019); Morello, State Department launches panel focused on human rights and natural law, Wash. Post (July 8, 2019); Visser, Mike Pompeo Unveils New Panel To Refocus U.S. Human Rights Priorities, Huffington Post (July 8, 2019); Oprysko, Mike Pompeo unveils panel to examine ‘unalienable rights,’ Politico (July 8, 2019); McBride, Pompeo Creates Commission on Human Rights, W.S.J. (July 8, 2019).

 

 

 

 

 

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 18th 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).)