Another Speech About Unalienable Rights by Secretary of State Michael Pompeo

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

Pompeo’s Lecture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reactions

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

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

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

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

 

U.S. State Department’s Second Ministerial To Advance Religious Freedom

On July 16-18, 2019, the U.S. State Department hosted its Second Ministerial to Advance Religious Freedom. The opening event was held at the U.S. Holocaust Memorial Museum in Washington, D.C. to emphasize the “importance of promoting religious freedom and protecting religious minorities.” The closing event, also in Washington, D.C. was at the National Museum of African American History and Culture and co-hosted by the U.S. Holocaust Memorial Museum.[1]

First Day Activities[2]

After welcoming remarks by Secretary Pompeo and Ambassador at Large for International Religious Freedom Sam Brownback, the participants discussed the opportunities and challenges for promoting and defending religious freedom globally. Through a series of plenary sessions, they discussed the necessary building blocks and emerging trends in advancing religious freedom, as well as how religious freedom, international development, and humanitarian aid can work together to advance mutual interests.

Second Day Activities[3]

 There were three separate discussions led by topical experts, civil society actors, religious leaders, academics and working-level government officials on topics such as best practices for religious freedom advocacy; limitations in forming, registering and recognizing religious communities; challenges facing religious minorities; combatting the rise of anti-Semitism and anti-Islamic behavior; countering violent extremism; religious freedom and national security; religious freedom and economic development; cultural heritage protection for religious sites; religious minorities and humanitarian crises; international development aid and religious freedom; and mobilizing faith leaders around peace and development goals.

At the end of the second day, the White House held a brief reception for some of the Ministerial attendees. One was Cuban Pastor Mario Felix Lieonart, who said, “Pastor, Ramón Rigal, and his wife are imprisoned in Cuba.  Please pray for them and help the people in Cuba. Two other Cuban pastors who were invited for the Ministerial “are not here because the government in Cuba would not give them permission to come. They are Moisés de Prada, president of the Assemblies of God, and Álida León, president of the new Evangelical League of Cuba, which said, “The intention to attend [the Ministerial] was made public, it was a proof of transparency and truth, we have nothing institutionally to hide.” Lieonart added, I am here because I am a refugee in United States.  Thank you for your hospitality for me.” In response to a question from President Trump, Rev. Lieonart said, “Raúl Castro is continuing in power because he is the First Secretary of the Communist Party.  And the new President is not really Cuba’s leader. Castro is the real leader.”

Third Day Activities[4]

Senior government and international organization representatives focused on: identifying global challenges to religious freedom; developing innovative responses to persecution on the basis of religion; and sharing new commitments to protect religious freedom for all. Survivors or close relatives of those who suffered persecution due to their religion or beliefs shared their stories. Government delegations were encouraged to announce new actions and commitments they will take to protect and promote freedom of religion or belief.

There also were the Keynote Address by Secretary Pompeo, an Address by Vice President Mike Pence and Closing Comments by Ambassador Brownback. The highlights of those speeches follow.

Secretary Pompeo’s Keynote Address

The attendance aat this Ministerial “proves that religious freedom matters to literally billions of people all around the world. Look around you. Religious freedom isn’t just a Christian concern, a Jewish concern, a Muslim concern, a Buddhist concern, a Hindu concern, or a humanist concern. It’s all of our concern; it is everyone’s concern.”

“Here in the United States, our Declaration of Independence clearly states that certain rights are unalienable. There are liberties to which all of mankind, in all places, at all times are entitled. Religious freedom is one of them. Our Constitution puts it in the very first amendment.”

“Thomas Jefferson, our first Secretary of State, [helped author the Virginia Statute of Religious Freedom,“ which states, ‘Almighty God hath created the mind free… No man shall be compelled to frequent or support any religious worship or ministry, or shall otherwise suffer on account of his religious opinions or belief.’”

“The UN Universal Declaration of Human Rights affirms religious freedom or belief as a universal right.”

“Today, we come together to turn our convictions into action. And there’s not a moment to lose. A shocking 83 percent of the world’s population live in nations where religious freedom is either threatened or denied entirely.”

Perhaps you’ve heard the recent news of the Cuban evangelical leaders who registered for this very event to come here to Washington but were not permitted to come. . . . [T]he Cuban government prevented them from . . . [coming] to express their religious freedom. Such is the thuggish, intolerant nature of the current regime in Havana.” (Emphasis added.)

The Secretary then commented about violations of religious freedom in Iran, Burma and China.

“{L]ookl at what we’ve accomplished as a result of last year’s ministerial.”

“The State Department has established an International Religious Freedom Fund – a multi-donor fund that provides rapid assistance to victims of persecution all throughout the world. It’s already serving good, and its purpose around the world is expanding. . . . We encourage more countries to step up to the plate and donate and contribute to this important cause that can do so much good all around the world.”

Here are other examples. The “United Arab Emirates they hosted the first regional conference in February on promoting religious tolerance in their curricula. . . .  {T]he nations of the Organization of American States unanimously put forth their first ever statement, introduced by the United States, affirming religious freedom in our hemisphere. Along with the United Kingdom, the United States co-sponsored a groundbreaking conference this past November on meeting the needs of vulnerable religious minorities in conflict zones. And several governments have created special ambassadors specifically charged with advancing religious freedom in their country and around the world.”

The State Department “recently commissioned a group called the Commission on Unalienable Rights to generate a serious debate about human rights that extends across party lines and across national borders. The commission’s purpose is very simple. We’re not out to discover new principles but to ground our discussion of human rights in America’s founding principles, and religious freedom is certainly amongst them.”

“In 2019, the State Department introduced mandatory training on international religious freedom for every one of our Foreign Service Officers. We’ve, so far, trained nearly 12,000 employees on how to identify religious discrimination and persecution and how to work closely with faith leaders all across the world. It is incredibly important that our diplomats be our ambassadors for this first freedom.”

“We should all consistently speak out about abuses of religious freedom. It’s the least that we can do. Today, we have nine statements of concern on countries and issues all teed up. I would ask each of you to sign them in solidarity.”

“Albania, Colombia, Morocco, and the Vatican will host regional conferences in the near future.”

“Thanks to Poland’s efforts, the UN General Assembly has named August 22nd as a special day to remember the victims of religious persecution. Please commemorate it in your home countries too. And we should all keep making the case at the United Nations and in other bodies that religious freedom should be a priority for that institution.”

“But governments alone can’t properly tackle this problem. Our countries need to support civil society groups.”

“I’m very proud to announce today a new effort that’s intended to help us in our goals across the board. We will create the International Religious Freedom Alliance. We hope that this new vehicle – the first every international body devoted to this specific topic – will build on efforts to date and bring likeminded countries together to confront challenges of international religious freedom. . . . it will defend the unalienable rights for all human beings to believe – or not to believe – whatever it is they choose.”

“You all came here because you understand that it is our responsibility to help them. We’re all in this fight together. You can be sure that the United States will be out front defending the God-given, unalienable right of all human beings to worship as they choose.”

Vice President Pence’s Remarks

“Since the earliest days of our nation, America has stood for religious freedom.  Our first settlers left their homes and all they knew for the chance to, as they said, “Begin the world [all] over again.”  They carved protections for religious liberty into the founding charters of our nation and our very earliest laws.  And after our independence was won, the crafters of America’s Constitution enshrined religious liberty as the first of our American freedoms.”

“Our Declaration of Independence proclaims that our precious liberties are not the gift of government, but rather they’re the unalienable rights endowed by our Creator.  Americans believe that people should live by the dictates of their conscience, not the diktats of government.”

“Free minds build free markets.  And wherever religious liberty is allowed to take root, it is prosperity and peace that ultimately flourish as well.”

“And as we tell even our closest allies, those who reject religious freedom are more likely to breed radicalism and resentment; that it can sow those seeds of violence and it can too often cross borders. And those who deny religious freedom to their own people often have few qualms denying those rights to others.”

“The list of religious freedom violators is long; their oppressions span the globe.” It includes Burma, Nicaragua, Venezuela, Iran, Burma, China, North Korea, Eritrea, Mauritania, Pakistan, Saudi Arabia, China and North Korea.”

“While religious freedom is always in danger in authoritarian regimes, threats to religious minorities, sadly, are not confined to autocracies or dictatorships.  The truth is, they can and do arise in free societies, as well, not from government persecution, but from prejudice. This is the evil of Anti-Semitism.”

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[1] State Dep’t, Secretary Pompeo Convenes Second Ministerial to Advance Religious Freedom (June 25, 2019); State Dep’t, Ministerial To Advance Religious Freedom Convenes Opening and Closing Events (July 12, 2019). The first Ministerial in July 2018 was discussed in a prior post.

[2] State Dep’t, Day 1: 2019 Ministerial To Advance Religious Freedom (July 16, 2019).

[3] State Dept, Day 2: Track 1: 2019 Ministerial To Advance Religious Freedom (July 17, 2019); State Dept, Day 2: Track 2: 2019 Ministerial To Advance Religious Freedom (July 17, 2019); State Dept, Day 2: Track 3: 2019 Ministerial To Advance Religious Freedom (July 17, 2019); The White House, Remarks by President Trump in Meeting with Survivors of Religious Persecution (July 17, 2019); Cuban Pastor Denounces Cuban Violations of Religious Freedoms to President Donald Trump, Diario de Cuba (July 19, 2019); The regime prevents two of Cuba’s leading evangelical leaders from leaving the country, Diario de Cuba (July 14, 2019); We have nothing to hide’: the Evangelical League of Cuba, Diario de Cuba (July 19, 2019).

[4] State Dep’t, Day 3: 2019 Ministerial To Advance Religious Freedom (July 18, 2019); State Dep’t, Secretary of State Michael R. Pompeo Keynote Address at the Ministerial to Advance Religious Freedom (July 18, 2019); The White House, Remarks by Vice President Pence at the 2nd Annual Religious Freedom Ministerial (July 18, 2019). The prior day the Secretary made a similar speech for the presentation of international religious freedom awards. (State Dep’t, Secretary of State Michael R. Pompeo at the Reception for the Ministerial To Advance Religious Freedom and Presentation of the International Religious Freedom Awards (July 17, 2019).

 

 

 

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).

 

 

 

 

Additional Discussion About the U.S. Commission on Unalienable Rights

The July 8 launch of the U.S. Commission on Unalienable Rights continues to draw comments, pro and con.[1]

On July 17, 2019, Secretary Pompeo was interviewed by Hugh Hewitt, primarily about the Second U.S. Ministerial on International Religious Freedom.[2] In addition, the Secretary made the following comments related to the new U.S. Commission on Unalienable Rights:

  • “No previous administration has prepared to defend this most basic freedom – you talked about that, Hugh – absent having the capacity to believe what you want, and to act in accordance with your own conscience. All of the other things that we talk about as freedoms or rights are subservient to . . . [the freedom of religion and belief]. So very important that we advocate on behalf on this. Some 80 percent of the people in the world today live in religiously restricted environments.”
  • “[N]ations become stronger when they permit their citizens to exercise their core beliefs about who they really are. . . .[This is good for other countries] in terms of their capacity to build out their country, to grow the economy in their nation, to keep their country secure and safe. This central premise of religious freedom makes countries stronger. It doesn’t create risk. . . . [It’s in the best interest of every country] to increase the religious freedom in their country.”
  • “President Trump and the administration take this central core idea of religious liberty as a very important priority for the State Department, and indeed all of our government.”
  • “[T]he mission that I have given Professor Glendon and her colleagues [on the Unalienable rights Commission] . . . is to go back to the fundamental grounding of human rights that the founders have set forth for us, to evaluate the various components of those human rights. Which ones are central? Which of this set of rights are core to America’s success, and indeed, more broadly, the success in the world?”
  • “[W]hen everything is a right, these most fundamental, foundational rights are neglected . . . and will misdirect American policy. We won’t be focused on those things that are most central to American security around the world.”
  • The Commission has been asked “to go back and reground. . . . [The] State Department hasn’t done this in decades and decades, and I’m optimistic that they’ll come to a conclusion that will be important for the United States as we move forward, thinking about how to frame how the United States speaks about human rights and fundamental rights all around the world.”
  • “[T]he fear in many of these countries is if they grant these set of rights, that they will lose political control. But in fact, the opposite is true. Leadership that takes these rights seriously becomes stronger, their people become more capable of helping in the governance of their nation. You get good economic benefits too, but you get enormous social good that comes from the guarantee of this set of rights.”
  • “We’re very focused on our mission. The fact that some on the left have become sort of crazed by the fact that we’re . . . trying to create this religious freedom around the world, or define the central rights for every American, I find confusing, befuddling, and perhaps suggestive that they know they have the wrong end of the stick, and we are going to ground America in our constitutional understandings in ways that some . . .wish wouldn’t happen.”

After this interview, Hewitt published a laudatory account of this Commission.[3]“Pompeo is echoing Jefferson and Madison when he said there is ‘a central premise’ that ‘religious freedom makes countries stronger’ — that it produces security and safety as well as economic growth. Religious liberty is a building block of political stability; religious pluralism the cement of sturdy, long-lived states. . . . [T]he understanding is ascendant rising that only genuine tolerance of competing religious belief systems — wide-open but noncoercive invitations to preach and proselytize any faith claim — is the building block of political stability.”

The U.S. Commission on International Religious Freedom’s Chair, Tony Perkins, unsurprisingly applauded “the creation of this Commission as another way of ensuring that the protection of these fundamental rights – the most foundational of which is freedom of religion or belief – is a core element of strategic policy discussions.”  The Vice Chair, Gayle Manchin, agreed: “To the degree that this new Commission within the State Department can help further communicate from Washington to the Department’s farthest outposts the importance and urgency of religious freedom concerns as a fundamental human right, we believe this will lead to higher impact negotiations on behalf of the more than 70% of the world’s population that is currently suffering persecution or abuse.”[4]

Also supportive was Gary Bauer, a prominent Christian conservative activist, who said, “This administration has reached new levels of commitment on the fundamental right of freedom of religion that’s unprecedented historically, and I hope it will continue for decades ahead.”[5]

Skepticism about the Commission, however, continues to be voiced.

Rebecca Hamilton of Just Security warned that “the ‘natural law’ language was code for religiously-infused opposition both to reproductive rights and to protections for members of the LGBTQ community. . . . Michael Abramowitz, the president of Freedom House, expressed concern about the administration’s distinction between ‘unalienable rights’ and ‘ad-hoc rights,’ as well as its ‘seemingly permissive stance on a variety of human-rights abuses’ around the world. The head of Human Rights Watch was even more dismissive: “We don’t need a commission to figure out that the Trump administration will have little credibility promoting human rights so long as the president continues to embrace autocrats.” According to Amnesty International, “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.”[6]

Rob Bereschinski, a former deputy assistant secretary of state for democracy, human rights and labor and now the Senior Vice President, Policy for Human Rights First, a U.S. nonprofit, stated, “Given the way in which the Commission was conceived, without the input or awareness of the State Department’s human rights experts or members of Congress, many in the human rights community are skeptical of its motives. Secretary Pompeo has asserted that the body is meant to focus on ‘principles’ rather than ‘policy,’ but that’s a blurry distinction at best. The principles under which the United States advances human rights are well-established, and much of the criticism from human rights advocates concerning this administration centers on its violations of those rules. Each time the president attacks America’s free press as an ‘enemy of the people,’ or the administration obscures its role in separating children from their parents, or selectively highlights Iran’s poor human rights record while downplaying that of Saudi Arabia, U.S. credibility is undermined.”[7]

Roger Cohen, a New York Times columnist, castigated Secretary Pompeo for his pious assertions of the need to ascertain what human rights mean. “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.”[8]

Therefore, said Cohen, “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.”

“Modern human rights are grounded on the dignity inherent in every human being. They are not God-given rights, or Trump-given rights, and they apply to people of all faiths and to those who have none. They include freedom of speech, the press, assembly and religion, and the “right to recognition everywhere as a person before the law,” as the Universal Declaration puts it. They involve combating discrimination on the basis of race, ethnicity, disability, gender or sexual orientation.”

Pompeo has talked about the need to go back to concepts of natural law and natural rights at the time of the Declaration of Independence in 1776. But, Cohen continued, ”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].”

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[1] This Commission has been discussed in the following 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); More Comments About the Commission on Unalienable Rights (July 9, 2019); The Importance of the Universal Declaration of Human Rights (July 11, 2019).

[2] State Dep’t, Secretary of State Michael R. Pompeo With Hugh Hewitt of the Hugh Hewitt Show (July 17, 2019).

[3] Hewitt, The forces against religious freedom are ascendant. The Trump administration mounts a defense, Wash. Post (July  20, 2019).

 [4] U.S. Comm’n on Int’l Relig. Freedom, USCIRF Statement on State Department’s Creation of “Commission on Unalienable Rights” (July 8, 2019).

[5]  Toosi, Trump’s religious freedom conference creates awkward alliance, Politico (July 14, 2019).

[6] Drezner, Can any good come out of the Commission on Unalienable Rights? Wash. Post (July 10, 2019).

[7] Human Rts. First, State Commission on Unalienable Rights Must Focus on Reversing Harm Done by Administration (July 8, 2019).

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

 

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).

 

The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes

The U.S. Declaration of Independence of July 4, 1776, obviously preceded and in many ways inspired the U.S. Constitution of September 17, 1787. But in my three years as a student at the University of Chicago Law School, 1963-1966, and my 35 years as a practicing litigator-attorney (including some constitutional cases), 1966-2001, I never encountered the question of whether and how the Declaration should and could affect the interpretation of the Constitution.

George Will

Now noted author and commentator George Will in the “Introduction” to his new book, The Conservative Sensibility, says “We [conservatives] seek to conserve the American Founding” with a “clear mission: It is to conserve, by articulating and demonstrating the continuing pertinence of, the Founders’ thinking.” Indeed, “Americans codified their Founding doctrines as a natural rights republic in an exceptional Constitution, one that does not say what government must do for them but what government may not do for them.”

Therefore, according to Mr. Will’s book, “The doctrine of natural rights is the most solid foundation—perhaps the only firm foundation—for the idea of the political equality of all self-directing individuals.”

One of Will’s recent columns extends these thoughts. He says, “the Declaration expressed, as Thomas Jefferson insisted, the broadly shared ‘common sense of the subject.’ Rather than belabor the Declaration’s (to them, unremarkable) assertions, the Constitution’s framers set about creating institutional architecture that would achieve their intention: to establish governance that accords with the common sense of their time, which was that government is properly instituted to “secure” the preexisting natural rights referenced in the Declaration.” Therefore, the “The Declaration’s role is the locus classicus [classical location] concerning the framers’ intention [and original meaning and continuing purpose], which is surely the master key to properly construing what they wrought.”[1]

Jeffrey Rosen

Jeffrey Rosen, president and CEO of the National Constitution Center in Philadelphia and a law professor at George Washington University, shares some of the ways that the Declaration has influenced the Constitution.[2]  As President Lincoln noted in 1861, “the expression of the principle [of Liberty for All] in our Declaration of Independence . . . was the word ‘fitly spoken’ which has proved an ‘apple of gold’ to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it.” As Lincoln recognized, “the two documents are closely linked. From the Founding era until today, conservatives, liberals and everyone in between have agreed that the theoretical basis of the U.S. Constitution—and American political life in general—can be found in Thomas Jefferson’s” words in the Declaration, “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. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

However, Rosen says, conservatives and liberals often disagree about what these words of the Declaration mean in terms of government policies and laws, as has been true throughout our history. This has been true in political debates in some Supreme Court cases. For example, in last week’s case about partisan gerrymandering, Justice Kagan in dissent cited the Declaration’s statement that governments derive “their just Powers from the Consent of the Governed” to justify her opinion that the courts need to intervene in gerrymandering cases. On the other hand, conservatives today cite the Declaration’s “all men are created equal” to support their assertion that there is a fundamental right to life that trumps a woman’s right to an abortion.

Reactions

The notion that the Declaration is relevant to interpreting the Constitution is superficially attractive. But most of the Declaration is a bill of particulars against “the present King of Great Britain” and his “repeated injuries and usurpations, all having, in direct object, the establishment of an absolute tyranny over these States.” Those words do not appear to be helpful in interpreting the subsequent Constitution.

More importantly for Will and other like-minded individuals, the Declaration holds “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.” This apparently is the central assertions that should be used in interpreting the Constitution.

But immediately after these words, the Declaration states, “to secure these rights, governments are instituted among men.” For this blogger, those words strongly suggest, if do not require, an examination of the words adopted by the government in constitutions and statutes in order to construe those rights.

This blogger would appreciate intelligent reactions and comments on these issues as well as citations to any U.S. Supreme Court cases that use the Declaration to interpret the Constitution.

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[1] Will, To construe the Constitution, look to the Declaration, Wash. Post (July 3, 2019).

[2] Rosen, The Declaration of Independence Unites and Divides Us, W.S..J. (July 4, 2019),