Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo  

The Draft Report of the U.S. Commission on Unalienable Rights and its immediate endorsement by Secretary Pompeo raise many issues.[1]

Here is an evaluation of three of those issues: (1)  property rights and religious freedom as the alleged paramount human rights; (2) the report’s skepticism of new and additional rights; and (3) Pompeo’s exceedingly hostile criticism of the New York Times’ “The 1619 Project.”

 Property Rights and Religious Freedom[2]

Looking at the Commission’s Report for the first time, I was shocked to read, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty,” neither of which is specifically mentioned in the U.S. Declaration of Independence as an inalienable right. Moreover, the Report did not purport to document the bases for this conclusion other than inserting these unconvincing statements:

  • “For the founders, 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 Report then immediately and properly admits the inconsistency between the purported status of property rights as a “foremost inalienable right” and the existence of slavery when the Declaration of Independence was adopted in 1776.  Here is that admission: “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.”

In addition, the concept of property rights is not mentioned in the Report’s earlier assertions about the origins of the American concept of unalienable rights from three traditions: “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.”

The shock of this designation of alleged “foremost” human rights makes one wonder whether it was a last-minute insertion, perhaps by Secretary Pompeo himself, who said in his speech immediately after the presentation of the Commission Report, ““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.)

Many commentators have attacked the contention that property rights and religious freedom were the “foremost” rights.

Daniel W. Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, asserts that “there are obvious elements of liberty  . . that are disconnected from any conventional understanding of property rights concept. The First Amendment right to peaceably assemble, for example, seems like a core aspect of liberty and yet does not quite work as a property right per se.” In addition, when the Report refers to rights that are “fundamental” and “core concept” and “absolute or nearly so” rights, it refers to the right to vote, human dignity and the prohibition against genocide and makes no connection to property rights or religious rights.

Another critique came from Akila Radhakrishnan, the president of the Global Justice Center, an international human rights organization. He said, “You’re seeing the rise of autocrats across the world. You’re giving a gift to those people, and not only taking away U.S. leadership, but giving them and feeding them arguments they’ve long been making as well.”

U.S. Senator Bob Menendez (Dem., NJ), criticized Pompeo’s designation of property rights and religious liberty as “foremost” rights while other rights were less important. This argument, the Senator said, purports to justify “the  rollback of hard-won advances for the rights of women, girls, and LGBTQ persons” and “does not  call on the U.S. Government to champion greater protections for all human rights abroad, but may in fact narrow the scope of U.S. human rights obligations and further erode America’s moral and global leadership.”  This Report, therefore, “will undermine long-standing, internationally-recognized human rights principles and a human rights framework which prior U.S. presidents and administrations have championed for decades, regardless of party.”

The Report’s elevation of religious freedom presented problems to Rori Kramer, the director of U.S. advocacy for American Jewish World Service and a former deputy assistant secretary of state and a senior foreign policy adviser in the U.S. Senate.  This decision “purposefully [confuses] the individual freedom to worship with a state license to advance a particular religious agenda [and] is a gross misreading of the United States’ founding document.”

Kramer added, the Report and Pompeo do not reveal the promotion of Pompeo’s own religious agenda that  “downplays threats to the human rights of the world’s most vulnerable groups, such as women and LGBTQI+ people.” Indeed, Pompeo’s State Department already has removed “references to sexual and reproductive health from international resolutions and statements, as well as from the work of the department itself. And he has dramatically expanded the global gag rule, the draconian policy which prohibits foreign organizations receiving U.S. funding from providing any kind of information, referrals or services about abortion.”

Tarah Demant, director of the gender, sexuality and identity program at Amnesty International USA, said: “The US government cannot unilaterally redefine which human rights will be respected and which will be ignored. The U.S. State Department’s effort to cherry-pick rights in order to deny some their human rights is a dangerous political stunt that could spark a race to the bottom by human rights-abusing governments around the world.”

A more general critique of the idea of too many subgroups demanding rights came from Elisa Massimino, the 2019-2020 Robert F. Drinan, S.J., Chair in Human Rights at Georgetown University Law Center and a senior fellow at the Center for American Progress., and  Alexandra Schmitt, a policy analyst at the Center for American Progress. They say the UDHR’s preamble expressly recognizes the inherent dignity and of the equal and inalienable rights” of all humans and makes clear that all of them are interrelated and must be treated as indivisible in order to fulfill the promise of human dignity. It is a simple and radical document — a Magna Carta for all humankind.”

Therefore, Massimino and Schmitt say, “What the global human rights movement needs right now is for the United States to fully embrace the universality and indivisibility of human rights as set out in the Universal Declaration, provide a full-throated defense of human rights abroad and engage in an honest effort to address deep and persistent rights violations at home. It’s clear that Pompeo has no intention of leading such an effort; to the contrary, he is actively undermining it. To the extent that he tries to leverage the commission’s report as cover for his campaign to “prioritize” freedom of religion over other universal rights, American officials — and Congress, in particular — must be prepared to push back.”

Skepticism of Additional Rights[3]

The Report and Pompeo are skeptical of claims for additional rights, both domestically in U.S. law and in international treaties.

The Report puts it in this manner: “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.”  Who could be against caution?

Pompeo also was indirect. He said, “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.” And “Americans have . . . 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.. That’s a lot of rights. And the proliferation of rights is part of the reason why this report is so important.”

In so doing, the Report and Pompeo forget or ignore the Declaration of Independence, which does not have the force of law and which  immediately after mentioning  “certain unalienable rights” (life, liberty and the pursuit of happiness) states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, the U.S. Declaration expressly contemplates, if not requires, that the U.S. government under the subsequent U.S. Constitution, will enact statutes to secure these unalienable rights and thereby create additional rights.

The UDHR, which also does not have the force of law, has the same contemplation and requirement when in its Preamble, it states, “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” and in its Proclamation states, “every individual and every organ of society . . . shall strive . . . by progressive measures, national and international, to secure their universal and effective recognition  and observance.” In other words, the UDHR expressly contemplates, if not requires, that individual governments and international organizations will adopt subsequent statues and treaties to secure the rights  of the UDHR.

The Report nevertheless favorably and correctly refers to the many “positive rights,” which “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” and which “may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”

The Report emphasized this fact by quoting James Madison’s June 1789 speech to Congress in favor of a Bill of Rights [which was adopted in 1791). He stressed that despite different origins , “freedom is a function of positive rights elaborated in various legal codes as well as rights that belong to all human beings.” The Report also mentions that “American legislatures in the late 19th and early 20th centuries . . . began to enact protections for workers that were framed in the language of rights . . . . that entail difficult judgments about the allocation of material resources . . .[and that primarily are the tasks for legislatures.]”

Time has not stood still since 1776 when the U.S. Declaration was adopted or 1789 when the U.S. Constitution was ratified and the U.S. Government was established. The same is true with respect to the international organizations and treaties established after the adoption of the UDHR in 1948. Therefore, it is not surprising to have additional rights created over time in statutes and treaties.

Fourth, numerous commentators have criticized the Report and Pompeo on this issue.

As Molly Bangs in Truthout notes, the Report does not endorse protections against discrimination on the basis of gender, race or sexual orientation and instead asserts that “abortion, affirmative action, and same-sex marriage [are] divisive social and political controversies in the [U.S.]” This is “a signal of how the Commission and Pompeo intend to weaponize religious freedom at the expense of other human rights.”

A similar criticism came from Amnesty International, saying, the U.S. “has disgracefully sought to abandon its obligations to uphold the human rights to health and freedom from discrimination, among others. The US government is not legally allowed to unilaterally redefine its obligations under international human rights treaties, which almost all countries in the world have agreed to uphold.” According to Amnesty, the U.S. “now is seeking to deny reproductive rights, LGBTI rights and socio-economic rights, among others – which it frames as ‘divisive social and political controversies’ – by unilaterally redefining what ‘human rights’ mean.”

The Council on Foreign Relations’ Senior Fellow on Global Governance, Stewart M. Patrick, said Pompeo’s ideas, “if successful, would undermine the cause of freedom, equality and justice, both at home and abroad.” Indeed, the Report “reflects a conservative desire to roll back recent progressive advances” and it alleges, without any evidence, that “the prodigious expansion of human rights has weakened rather than strengthened the claims of human rights and left the most disadvantaged more vulnerable.” Stewart also points out the Report’s “utter disconnect from the Trump administration’s hypocritical human rights policy,” including  “the president’s curious affinity for illiberal leaders ranging from Russia’s Vladimir Putin and China’s Xi Jinping, to Turkey’s Recep Tayyip Erdogan, Saudi Arabia’s Mohammed bin Salman, the Philippines’ Rodrigo Duterte and Brazil’s Jair Bolsonar.”

Human Rights Watch had similar thoughts. While the Report expresses “concern” about a “proliferation” of human rights claims, it should have focused more on “the growing number of autocratic, authoritarian governments that brazenly cast them aside.” Therefore, this organization has submitted a formal comment to the Commission before it revises, if at all, the draft Report.

The most strident critique of the Report comes from Robert Blitt, a professor at the University of Tennessee College of Law, who says it “will only strengthen the Kremlin’s longstanding effort to undercut the international human rights system.” While the U.S.recently resigned from the U.N. Human Rights Council, Russia is campaigning for a seat on that body by promising to prevent the use of human rights issues as pretexts for interference in the internal affairs of sovereign states.

Criticism of the 1619 Project[4]

In his speech commending the Commission Report, Pompeo said, “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.”[5]

Yes, the 1619 Project sets forth important and troubling facts about the introduction of slavery into the American colonies in 1619 that are not well known or taught, that should be known by all Americans and that should not be met with Pompeo’s unjustified ad homonyms of “Marxist ideology” and “a slander on our great people.”

The Times’ introduction of this project stated its goal was “to reframe American history by considering . . .  1619 as our nation’s birth year . . . when a ship arrived  . . . in the British colony of Virginia , bearing a cargo of 20 to 30 enslaved Africans [and inaugurating] a barbaric system of chattel slavery that would last for the next 250 years. . . . Out of slavery—and the anti-black racism it required –grew nearly everything that has truly made America exceptional: its economic might, its industrial power, its electoral system, diet and popular music, the inequities of its public health and education, its astonishing penchant for violence, its income inequality, the example it sets for the world as a land of freedom and equality, its slang, its legal system and the endemic fears and hatreds that continue to plague it to this day.”

More details of this early history were provided in The 1619 Project by Nikole Hannah-Jones, a MacArthur “Genius” fellow and a Times staff writer, who authored “The Idea of America.” Here are a few of those details:

  • “Before the abolishment of the international slave trade, 400,000 enslaved Africans would be sold into America.”
  • “Chattel slavery . . . was heritable and permanent, . . ., meaning generations of black people were born into it and passed their enslaved status onto their children. Enslaved people were not recognized as human beings but as property that could be mortgaged, traded, bought, sold, used as collateral, given as a gift and disposed of violently.”
  • “Enslaved people could not legally marry. They were barred from learning to read and restricted from meeting privately in groups. They had no claim to their own children, who could be bought, sold and traded away from them on auction blocks. Enslavers and the courts did not honor kinship ties to mothers, siblings, cousins.”
  • “In most courts, they had no legal standing.”
  • “One of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.”
  • Although the Declaration of Independence, did not apply to them, “black Americans believed fervently in the American creed” and “through centuries of black resistance and protest, we have helped the country to live up to its founding ideals.”
  • Six of the U.S. Constitution’s 84 clauses deal directly with the enslaved and their enslavement and another five clauses have implications for slavery.
  • Through their labor, they helped build “vast fortunes for white people North and South.”

Although the Commission Report does not mention these facts about 1619 and slavery, it does confess the evils of slavery in America:

  • “Respect for unalienable rights requires forthright acknowledgement of not only where the United States has fallen short of its principles but also special recognition of the sin of slavery — an institution as old as human civilization and our nation’s deepest violation of unalienable rights. The legally protected and institutionally entrenched slavery that disfigured the United States at its birth reduced fellow human beings to property to be bought, sold, and used as a means for their owners’ benefit. Many slave-owning founders, not least Thomas Jefferson, recognized that in the light of unalienable rights, slavery could only be seen as a cruel and indefensible institution. In contemplating slavery in his Notes on the State of Virginia, he wrote, “I tremble for my country when I reflect that God is just.” Nevertheless, it would take a grievous civil war, costing more American lives by far than any other conflict in the nation’s history, to enable the federal government to declare slavery unlawful. It would take another century of struggle to incorporate into the laws of the land protections to guarantee African Americans their civil and political rights. Our nation still works to secure, in its laws and culture, the respect for all persons our founding convictions require.” (Emphasis added.)

Even today, the Report admits, “the nation must be humble in light of the work that remains to be done.”  The Report also confesses, “the brutal killing of an African-American man [George Floyd] in the late spring of 2020 and the subsequent civic unrest that swept the country underscore that much still must be accomplished.”

But the Report does not trace the history of slavery in America back to its founding in 1619 or admit that for the first 157 years of that history African-American slaves had no legal basis to challenge their being held in slavery. The Report only indirectly alleges that after 1776 the slaves had an inchoate right to argue that the unalienable rights mentioned in the U.S. Declaration of Independence were contrary to slavery, but admits that it was only after the bloody Civil War and the 1865 adoption of the Thirteenth Amendment that slavery was legally abolished. The Report also admits that even that was not enough to abolish the discrimination against African-Americans with the subsequent Jim Crow laws, lynching and other discriminations.

The Times’ initial publication of the 1619 Project in August 2019 has many articles and has prompted publication of many other articles on this subject. Perhaps there are errors of fact or interpretation in these many articles, but the appropriate way to counter such errors is by dispassionate fact-based scholarly articles and books, not by wild-eyed accusations of Marxism and slander. Take note, Secretary Pompeo.

In direct response to Pompeo’s criticism of the 1619 Project, Eileen Murphy of the Times said, ““The 1619 Project, based on decades of recent historical scholarship that has deepened our understanding of the country’s founding, is one of the most impactful works of journalism published last year. We’re proud that it continues to spark a dialogue that allows us to re-examine our assumptions about the past.”

Pompeo’s Political Motives for the Report[6]

Pompeo, a former Kansas GOP congressman, is known to be eyeing a potential future presidential run, and his critics immediately pointed out that the speech endorsing the Commission report had plenty of fodder for the electoral base of the Republican Party, including the media-bashing.

There was additional fodder for that possible presidential run the very next day when Pompeo and his wife went to Iowa (an important presidential nominating state) for a speech (reprinted on the State Department website) before a gathering of a conservative Christian group opposed to divorce, abortion and other sexual orientations. There Pompeo bragged that under his leadership the State Department has a “pro-religious freedom foreign policy . . . . [and] a 100 percent pro-life foreign policy. Our administration has defended the rights of unborn like no other administration in history. Abortion quite simply isn’t a human right. . . . 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. . . we mobilized 20 countries to deliver a joint statement at the UN criticizing pro-abortion language in UN documents.”[7]

Conclusion

The Commission invited comments through July 30/31 on their draft report, and its website has so far posted 133 pages of such comments, which will be discussed in a future post. Thus, we and others need to wait to see if any of these comments prompt changes to the report.[8]

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[1] See U.S. Commission on Unalienable Rights Report, dwkcommentaries.com (July 27, 2020); Secretary Pompeo’s Reactions to U.S. Commission on Unalienable Rights’ Report, dwkcommentaries.com (July 29, 2020).

[2] Verma, Pompeo Says Human Rights Policy Must Prioritize Property Rights and Religion, N.Y. Times (July 16, 2020); Toosi, Pompeo rolls out a selective vision of human rights, Politico.com (July 16, 2020); Borger, Pompeo claims private property and religious freedom are ‘foremost’ human rights, Guardian (July 16, 2020); Massimino & Schmitt, Pompeo’s new commission undermines universal human rights—just as planned, Wash, Post (July 17, 2020); Drezner, Let’s grade the Commission on Unalienable Rights!, Wash. Post (July 20, 2020); Senator Menendez, Menendez on Trump Administration’s Launch of Controversial Commission on Unalienable Rights’ Report (July 16, 2020).

[3] Bangs, Pompeo’s Commission on “Unalienable Rights” Prioritizes Property Over People, truthout.org (July 28, 2020); Amnesty Int’l, USA: State Department’s flawed ‘unalienable rights’ report undermines international law, amnesty.org (July 16, 2020); Rubin, The Trump administration rejects human rights principles at home and aboard, Philadelphia Inquirer (July 21, 2020); Patrick, U.S. Effort to ‘Nationalize’ Human rights Undermines Them at Home and Aboard, World Policy Review (July 27, 2020); Thoreson, US Should Focus on Rights for All, Not Rights for Some, Human Rights Watch (July 30, 2020); Human Rights Watch, Comment [on Draft Report] to Commission on Unalienable Rights (July 2020); Blitt, To Russia, With Love, Jurist (July 30, 2020).

[4] Silverstein, Introduction to 1619 Project, N.Y. Times Magazine (pp. 4-5)  (Aug. 18, 2019); “The 1619 Project” Commemorates the Arrival of Slavery in the U.S., dwkcommentaries.com (Oct. 20, 2019); Hannah-Jones, The Idea of America, N.Y. Times Magazine (pp. 14-26) (Aug. 18, 2019); We Respond to the Historians Who Critiqued The 1619 Project, N.Y. Times (Dec. 20, 2020); List of Times’ references to “1619 Project” , N.Y. Times (as of 8/2/20).

[5] Pompeo’s attack on The 1619 Project may have been precipitated or suggested by U.S. Senator Tom Cotton (Rep., AR), who has been engaged in a feud with the New York Times over its controversial publishing of his op-ed  about the use of U.S. military troops in cases of insurrection or obstruction of the laws in U.S. cities. (Tom Cotton: Send in the Troops, N.Y. Times (June 3, 2020).) One week after publication of the Commission Report, a Cotton press release said, “The . . . 1619 Project is a racially divisive, revisionist account of history that denies the noble principles of freedom and equality on which the nation was founded” as the purported justification for his introducing the Saving American History Act of 2020 to prohibit the use of federal funds to teach the 1619 Project by K-12 schools. (Cotton, Press Release: Cotton Bill to Defund 1619 Curriculum (July 23, 2020).) Soon thereafter Cotton in an interview by an Arkansas newspaper said, “As the Founding Fathers said, [slavery] was the necessary evil upon which the union was built.” (Reuters, Republican Senator Cotton Criticized for “Necessary Evil” Slavery Comment, N.Y. Times (July 27, 2020).)

[6] State Dep’t, Pompeo Speech: My Faith, My Work, My Country (July 17, 2020); Secretary Pompeo’s Reactions to the Commission on Unalienable Rights’ Report, dwkcommentaries.com (July 29, 2020).

[7] See U.S. at U.N. Global Call To Protect Religious Freedom, dwkcommentaries.com (Sept. 24, 2019); U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[8] State Dep’t, Draft Report of the Commission on Unalienable Rights: Public Comments.

 

State Department Grants the Truman-Reagan Medal of Freedom Award to José Daniel Ferrer

On June 12, the U.S. State Department granted the Truman-Reagan Medal of Freedom Award to José Daniel Ferrer, a Cuban who has persistently criticized various policies of his government and who has been persecuted for so doing. Here is the text of that award.[1]

“Human rights defender José Daniel Ferrer has spent most of his adult life imprisoned for trying to make Cuba a free nation.  Ferrer has worked tirelessly to ensure all Cubans have a voice in the affairs of their own country.  The Castro regime has responded by beating and torturing Ferrer, harassing and threatening his family and colleagues, and imprisoning him simply for demanding a better life for Cubans.  Despite these abuses, Ferrer has persisted.”

“It is this persistence, this courage in the face of physical danger, and this resolve to help Cubans who yearn to be free that has earned José Daniel Ferrer the prestigious Truman-Reagan Medal of Freedom Award.  The United States government joins in the chorus of international voices that praise and commend Ferrer’s work, and the brave work of Cuban citizens on the island and abroad whose sole mission is to demand a free and fair government that encourages its people to thrive, instead of a dictatorship that jails them for their dissenting opinions.”

“We urge the Cuban government to take an important first step in this effort by immediately releasing José Daniel Ferrer from his four-and-a-half-year house arrest sentence, and immediately freeing all political prisoners.  These prisoners are simply demanding a better government.  They should be honored for their efforts as Ferrer is rightly being honored today.”

“This is a particularly powerful moment for human rights around the world and in our country.  We recognize the significance of the moment and emphasize the importance of fighting for human rights and fundamental freedoms.  We have more work to do, and Americans are fulfilling their right and responsibility to demand a more perfect union. Until the Cuban people can enjoy the freedoms and rights they are entitled to, the United States government will never stop holding the Cuban government accountable for its abhorrent actions against its own people.

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[1] State Dep’t, Press Statement: José Daniel Ferrer Receives the Truman-Reagan Medal of Freedom Award (June 12, 2020).  This blog has published many posts and comments about Ferrer.

 

 

Comments on Cuba by the U.S. Commander of U.S. Southern Command       

On April 17, Admiral Craig S. Faller, the Commander, U.S. Southern Command, gave a special briefing focused on “the enhanced counternarcotics operations led by [the U.S. Defense Department’s] Southern Command,” which “is responsible for providing contingency planning, operations, and security cooperation in its assigned Area of Responsibility which includes Central America, South America and the Caribbean (except U.S. commonwealths, territories, and possessions) and for the force protection of U.S. military resources at these locations.” .” [1]

Most of the comments were about Venezuela, but in his opening remarks the commander said, “[T]he security of the Western Hemisphere is [affected by] external state actors and  . . . malign actors like Cuba, Venezuela, Nicaragua, and Iran and others – external state actors that don’t share the democratic values, and they thrive on the instability created by transnational criminal organizations.”

Thereafter, the Commander did not give a direct answer to a question from a journalist from the Miami Herald about whether there was any evidence that Cuba was involved in drug trafficking with Venezuela. Instead, the Commander said, “[T]he connection between the illegitimate Maduro regime and Cuba is strong and thick, thick as ticks, and Maduro owes his position in power to the Cuban influence, and it surrounds him.  His presidential guard is primarily Cuban; the intelligence service is completely infiltrated by Cubans.  So, at the end of the day, as Special Representative Abrams has stated, Maduro must go and the Cubans must be out.  And their influence is strong, so there’s a strong connection between the Maduro government and Cuba, and by propping up the Maduro regime, Cubans have supported the illicit activities that Maduro is involved in, undoubtedly.”

Nor did he directly answer a follow-up question from another journalist as to whether there was any evidence that Cuba was trafficking drugs with Venezuela. The  Commander essentially repeated his earlier answer by saying, “So as I stated, the relationship between Cuba and Venezuela is extremely close, and there are thousands . . . of Cubans in Venezuela supporting the Maduro regime: the intelligence services, the protective services.  And so the extent to which Maduro owes his survival to his Cuban patronage is clear and unambiguous, and so undoubtedly Cuba is aware of the illicit activities that Maduro is conducting through narcotrafficking, through mining, through the myriad of ineffective state-run enterprises that steal from the Venezuelan people.  So there’s just no way that there’s not a connection in all respects. [However, he could not reveal details of the intelligence.] But as Special Representative Abrams has stated, Maduro must go and the Cubans are a key piece of making that happen.”

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[1] State Dep’t, Telephonic Press Briefing with Admiral Craig Faller, Commander, U.S. Southern Command (April 17, 2020).

 

U.S. State Department Announces Funding Opportunities for Cuba Proposals         

On April 17, the State Department’s Bureau of Democracy, Human Rights and Labor (DRL) announced it was accepting applications for “proposals that align with the U.S. government policy to promote human rights in Cuba as stated in the June 16, 2017 National Security Presidential Memorandum—entitled “Strengthening the Policy of the United States Toward Cuba” —as well as the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act and other relevant legislation.” [1]

Requirements for Applicants

Eligible applicants are  “U.S.-based and foreign-based non-profit organizations/nongovernment organizations (NGO) and public international organizations; private, public, or state institutions of higher education; and for-profit organizations or businesses.  DRL’s preference is to work with non-profit entities; however, there may be some occasions when a for-profit entity is best suited. In addition, applicants must have “proven capacity to implement foreign assistance programs to protect and promote internationally recognized human rights in Cuba” and the “existing, or the capacity to develop, active partnerships with thematic or in-country partners, entities, and relevant stakeholders, including private sector partners and NGOs, and have demonstrable experience in administering successful and preferably similar projects. “

The Department anticipates making three to five awards with a “Funding Floor” of $500,000 and “Ceiling” of $2,000,000.

The Department’s Context for Proposals

“For more than sixty years, the Cuban regime has denied its citizens many of the human rights and fundamental freedoms enshrined in the Universal Declaration of Human Rights.  Political participation, freedom of association and peaceful assembly are restricted through tightly controlled, undemocratic elections and by withholding legal status from independent civil society organizations, labor unions, and diverse political parties or movements. The free flow of information and freedom of expression are suppressed by blocking the Cuban peoples’ access to media outlets, and by censoring independent journalists, artists, and other individuals with alternative views. As connectivity slowly increases, the government is also expanding measures to surveil and harass citizens online to further inhibit the free flow of information and to prevent activists from connecting with broader audiences in and outside Cuba.”

“The Cuban government also abuses freedom of religion or belief by restricting the ability of faith communities to congregate and worship outside of the state-sanctioned Council of Churches. Cuban state security regularly threatens, harasses, arbitrarily arrests, detains, and restricts the movement of human rights defenders and pro-democracy activists on-island. Human rights organizations report more than 100 prisoners of conscience in Cuban prisons, most sentenced under fabricated charges like “contempt” of Cuban authorities or “pre-criminal social dangerousness.” This repression is financed in large part by the labor exploitation of medical workers and other service providers, who receive only a fraction of the salaries paid by third countries for their services and often face threats from their Cuban government handlers to discourage them from absconding. Despite these systemic efforts by the regime to maintain strict control over all facets of cultural, political and socio-economic life in Cuba, independent civic groups, journalists, artists, entrepreneurs, and others are increasingly advocating for more inclusive economic and political institutions.”

“DRL programs in Cuba aim to strengthen the capabilities of on-island, independent civil society to advance the above-mentioned rights and interests of all individuals in Cuba, and to overcome the limitations imposed by the Cuban government on the exercise of these civil and political rights.  DRL also strives to ensure its projects advance principles of non-discrimination with respect to race, religion, gender, disability, and other individual characteristics.”

“DRL seeks proposals that support Cuban-led initiatives that promote the human rights of all in Cuba—particularly the freedoms of peaceful assembly, association, expression, political participation and religion and belief—and strengthen and expand the reach of those initiatives in Cuba by focusing on issues that resonate with Cuban citizens. Competitive proposals may also support the documentation of human rights abuses, including for use in domestic and international advocacy, and increase the free flow of information to, from, and within Cuba.  Proposals should offer a specific vision for contributing to change while acknowledging and developing contingencies for challenges to program implementation. Proposals should demonstrate consultative dialogue with local Cuban partners and present sound strategies to develop organizational capacity and foster collaboration among diverse segments of Cuba’s independent civil society.  Proposals should also include concrete initiatives that address recent developments on the island and have the potential to generate short-term impacts while leading to long-term sustainable change. (Emphasis added.)

“DRL prefers innovative approaches rather than projects that simply duplicate or add to ongoing efforts by other entities.  This does not exclude projects that clearly build on existing successful projects in a new way.  DRL encourages applicants to foster collaborative partnerships with each other and submit a combined proposal in which one organization is designated as the lead applicant.  The applicant should also demonstrate experience programming effectively within Cuba and/or within other closed society environments.  Most importantly, the applicant should clearly demonstrate that the proposed activities emanate directly from needs expressed by Cuban civil society organizations.”

“Successful applications in the past have proposed activities reflective of the skills, knowledge, and linguistic capabilities of target beneficiaries.  Successful applications have also considered practical limitations of groups’ and individuals’ ability to participate in project activities and strive to ensure that beneficiary organizations will continue to function while certain members are participating in off-island activities.” (Emphases added.)

DRL also has a long list of activities that “typically are NOT considered: “The provision of humanitarian assistance; English language instruction; Development of high-tech computer or communications software and/or hardware; Purely academic research, exchanges, or fellowships; External exchanges or fellowships lasting longer than six weeks; Off-island activities that are not clearly linked to in-country initiatives and impact or are not necessary for security concerns; Theoretical explorations of human rights or democracy issues, including projects aimed primarily at research and evaluation for publication that do not incorporate training or capacity-building for local civil society;  Micro-loans or similar small business development initiatives; Activities that go beyond an organization’s demonstrated competence, or fail to provide clear evidence that activities will achieve the stated impact; Initiatives directed towards a diaspora community rather than current residents of Cuba; [and] Activities that are a duplication of other ongoing USG-funded projects in Cuba.”

Finally there will be no funding of “programs . . . that support the Cuban government, including Cuban government institutions, individuals employed by those institutions, or organizations controlled by government institutions.”

Conclusion

This is yet another of the weird and misguided U.S. public announcements of U.S. government-financed unilateral programs in Cuba without the cooperation of the Cuban government and indeed with the latter’s opposition and hence the need for these programs to be under-cover. The Department, therefore, highlights the need for applications to consider “contingencies for challenges to program implementation” and the “practical limitations of groups’ and individuals’ ability to participate in project activities.” In short, this is a fatally flawed idea.

How would the U.S. government react if Russia were to publicly announce that it was soliciting proposals for under-cover hacking of the U.S. election of 2020?

This proposal also continues to embrace the flawed claims that Cuba “abuses freedom of religion or belief” and that Cuba’s foreign medical mission program constitutes illegal forced labor, as discussed in many previous posts to this blog.[2] This proposal also continues to fail to understand why a small, poor nation of 11 people has rational fears of its much larger and more powerful neighbor to the north with a long history of hostility towards the island.

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[1] State Dep’t, Notice of Funding Opportunity (NOFO): DRL FY19: Cuba Proposals (April 17, 2020).

[2] See these sections (“Cuban Human rights,” “U.S. Democracy Promotion in Cuba” and “Cuban Medical Personnel & U.S.”) in List of Posts to dwkcommentaries—Topical: CUBA.

 

U.S. Positive Comments About Cuban Human Rights  

A prior post reviewed the many U.S. criticisms about Cuban human rights in the latest State Department’s report on that subject for Cuba and all the other countries in the world. Here are the much more limited positive comments about Cuba in that report:[1]

  • “There were no reports that the government or its agents committed arbitrary or unlawful killings [in 2019]. (Section 1.A)
  • “Prisoners and pretrial detainees had access to visitors.” (Section 1.C)
  • “Authorities allowed prisoners to practice their religion.” (Section 1.C)
  • “The law provides that police officials furnish suspects a signed ‘report of detention,’ noting the basis, date, and location of any detention in a police facility and a registry of personal items seized during a police search.” (Section1.D)
  • “Under criminal procedures, police have 24 hours after an arrest to present a criminal complaint to an investigative police official. Investigative police have 72 hours to investigate and prepare a report for the prosecutor, who in turn has 72 hours to recommend to the appropriate court whether to open a criminal investigation.” (Section 1.D)
  • “Within the initial 168-hour detention period, detainees must be informed of the basis for the arrest and criminal investigation and have access to legal representation. Those charged may be released on bail, placed in home detention, or held in continued investigative detention. Once the accused has an attorney, the defense has five days to respond to the prosecution’s charges, after which a court date usually is set.” (Section 1.D)
  • “Reports suggested bail was available.” (Section 1.D)
  • “Detainees have the right to remain silent.” (Section 1.D)
  • “By law, investigators must complete criminal investigations within 60 days. Prosecutors may grant investigators two 60-day extensions upon request, for a total of 180 days of investigative time. The supervising court may waive this deadline in “extraordinary circumstances” and upon special request by the prosecutor. In that instance no additional legal requirement exists to complete an investigation and file criminal charges.” (Section 1.D)
  • The “constitution recognizes the independence of the judiciary.” (Section 1.E)
  • “The law provides for the right to a public trial.” (Section 1.E)
  • “Due process rights apply equally to all citizens as well as foreigners. . . . The law presumes defendants to be innocent until proven guilty. . . . The law provides criminal defendants the right not to be compelled to testify or confess guilt.” (Section 1.E)
  • “Due process rights apply equally to all citizens as well as foreigner. The law presumes defendants to be innocent until proven guilty . . . .The law provides criminal defendants the right not to be compelled to testify or confess guilt.” (Section 1.E)
  • “Defense attorneys have the right to review the investigation files of a defendant unless the charges involve ‘crimes against the security of the state.’” (Section 1.E)
  • “It is possible to seek judicial remedies through civil courts for violations of administrative determinations.” (Section 1E)
  • “The law provides for the right to a public trial.” (Section 1.E)
  • “The constitution provides for the protection of citizens’ privacy rights in their homes and correspondence.” (Section 1.F)
  • “The constitution provides for freedom of expression, including for the press.” (Section 2.A)
  • “The government tolerated some gatherings [of three or more people without prior registration], and many religious groups reported the ability to gather without registering or facing sanctions.”
  • “The constitution allows all citizens to travel anywhere within the country.” (Section  D)

Note that most of these positive comments are about rights under Cuba’s constitution and laws while many of the negative comments concern Cuba’s alleged failure to observe these rights on paper.

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[1] State Dep’t, 2019 Country Reports on Human Rights Practices: Cuba (Mar. 11, 2020).

 

 

U.S. Sanctions 13 Former Salvadoran Military Officers for 1989 Murders of Jesuit Priests

On January 29, 2020, the U.S. State Department sanctioned 13 former Salvadoran military officers for the 1989 murders of the Jesuit priests.[1]

Ranging “in rank from general to private, [the following men] were involved in the planning and execution of the extrajudicial killings of six Jesuit priests and two others taking refuge at the Jesuit pastoral center on November 16, 1989 on the campus of Central American University in El Salvador:”  Juan Rafael Bustillo, Juan Orlando Zepeda, Inocente Orlando Montano Morales, Francisco Elena Fuentes, Guillermo Alfredo Benavides Moreno, Yusshy René Mendoza Vallecillos, José Ricardo Espinoza Guerra, Gonzalo Guevara Cerritos, Carlos Camilo Hernández Barahona, Oscar Mariano Amaya Grimaldi, Antonio Ramiro Avalos Vargas, Angel Pérez Vásquez, and José Alberto Sierra Ascencio.”

Under a U.S. statute, these individuals “and their immediate family members are ineligible for entry into the United States.”

The Department’s statement also said, “The United States condemns all human rights abuses that took place on both sides of the brutal civil war in El Salvador, including those committed by governmental and non-governmental parties.” The statement concluded:

  • “The United States supports the ongoing accountability, reconciliation, and peace efforts in El Salvador.  We value our ongoing working relationship with the Salvadoran Armed Forces, but will continue to use all available tools and authorities, as appropriate, to address human rights violations and abuses around the world no matter when they occurred or who perpetrated them.  Today’s actions underscore our support for human rights and our commitment to promoting accountability for perpetrators and encouraging reconciliation and a just and lasting peace.”

Comment

Even though the sanction is not that significant, it was appropriate for the U.S. to do this.

================================

[1] State Dep’t, Public Designation of Thirteen Former Salvadoran Military Officials Due to Involvement in Gross Violations of Human Rights (Jan. 29, 2020).

 

U.S. State Department Reiterates Criticism of Cuba’s Human Rights

On March 11, the U.S. State Department released its latest annual report on human rights around the world and repeated its criticisms of Cuba on this subject.

Secretary Pompeo’s Introduction of the Report[1]

The Secretary used these words to announce the release of the report:  “As our founding documents remind us, nothing is more fundamental to our national identity than our belief in the rights and dignity of every single human being.  It’s in our Declaration of Independence.”  With the U.S. Declaration of Independence of 1776 as its foundation, “The State Department’s Commission on Unalienable Rights is exploring the deep roots of America’s foundational belief in these ideals, and I look forward to receiving the commission’s work sometime around the Fourth of July of this year, a fitting time.” (Emphasis added.)

The Secretary then shifted to highlighting the report’s discussion of “human rights abuses . . . that are happening in China, Iran, Venezuela, and in Cuba.” His comments on Cuba focused entirely on the situation of Cuban dissident José Daniel Ferrer, which will be covered in a subsequent post.

The Executive Summary of the Report on Cuba[2]

 “Cuba is an authoritarian state led by Miguel Diaz-Canel, president of the republic, with former president Raul Castro serving as the first secretary of the Cuban Communist Party (CCP). Despite ratifying a new constitution on February 24, Cuba remains a one-party system in which the constitution states the CCP is the only legal political party and the highest political entity of the state.”

“The Ministry of Interior exercises control over the police, internal security forces, and the prison system. The ministry’s National Revolutionary Police is the primary law enforcement organization. Specialized units of the ministry’s state security branch are responsible for monitoring, infiltrating, and suppressing independent political activity. The national leadership, including members of the military, maintained effective control over the security forces.”

“Significant human rights issues included: reports of abuse of political dissidents, detainees, and prisoners by security forces; harsh and life-threatening prison conditions; arbitrary arrests and detentions; significant problems with the independence of the judiciary; political prisoners; and arbitrary or unlawful interference with privacy. The government severely restricted freedom of the press, used criminal libel laws against persons critical of leadership, and engaged in censorship and site blocking. There were limitations on academic and cultural freedom; restrictions on the right of peaceful assembly; denial of freedom of association, including refusal to recognize independent associations; restrictions on internal and external freedom of movement and severe restrictions of religious freedom. Political participation was restricted to members of the ruling party, and elections were not free and fair. There was official corruption, trafficking in persons, outlawing of independent trade unions, and compulsory labor.”

“On February 24, the country adopted a new constitution in a coerced referendum marred by violent government repression against those that opposed the proposed constitution. On February 12, for example, 200 police and security agents raided the homes of leaders of the Patriotic Union of Cuba (UNPACU) [which is headed by José Daniel Ferrer] for openly campaigning against the draft constitution, detaining and reportedly beating UNPACU members. Other opponents reported that the government had blocked their email and texts to keep them from disseminating opposition campaign materials. Article 5 of the constitution enshrines one-party rule by the CCP, disallowing for additional political expression outside of that structure. Although the new constitution adds explicit protections of freedom and human rights, including habeas corpus, authorities did not respect them, nor did the courts enforce them.”

“Government officials, at the direction of their superiors, committed most human rights abuses and failed to investigate or prosecute those who committed the abuses. Impunity for the perpetrators remained widespread.”

Some Negative Details of the Report

Disappearance (Section 1.B): “There were confirmed reports of long-term disappearances by or on behalf of government authorities. There were multiple reports of detained activists whose whereabouts were unknown for days or weeks because the government did not register these detentions; many detentions occurred in unregistered sites.”

Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (Section 1.C):

  • “There were reports that members of the security forces intimidated and physically assaulted human rights and prodemocracy advocates, political dissidents, and other detainees and prisoners during detention and imprisonment, and that they did so with impunity. Some detainees and prisoners also endured physical abuse by prison officials or by other inmates with the acquiescence of guards.”
  • “There were reports police assaulted detainees or were complicit in public harassment of and physical assaults on peaceful demonstrators.”
  • “State security officials frequently deployed to countries such as Venezuela and Nicaragua, where they trained and supported other organizations in their use of repressive tactics and human rights abuses, and sometimes participated in them directly.”
  • “Prison conditions continued to be harsh and life threatening. Prisons were overcrowded, and facilities, sanitation, and medical care were deficient. There were reports that prison officials assaulted prisoners.”
  • “The government subjected prisoners who criticized the government or engaged in hunger strikes and other forms of protest to extended solitary confinement, assaults, restrictions on family visits, and denial of medical care.”
  • “The government did not permit monitoring of prison conditions by independent international or domestic human rights groups and did not permit access to detainees by international humanitarian organizations.”

Arbitrary Arrest or Detention (Section 1.D):

  • “Arbitrary arrests and short-term detentions increased, becoming a routine government method for controlling independent public expression and political activity.”
  • Authorities “routinely ignored” the requirement to “furnish suspects a signed ‘report of detention,’ noting the basis, date, and location of any detention in a police facility and a registry of personal items seized during a police search.”
  • “Police used laws against public disorder, contempt, lack of respect, aggression, and failure to pay minimal or arbitrary fines as ways to detain, threaten, and arrest civil society activists. Police officials routinely conducted short-term detentions, at times assaulting detainees.”
  • “The law allows for ‘preventive detention’ for up to four years of individuals not charged with an actual crime, based on a subjective determination of “precriminal dangerousness,” which is defined as the ‘special proclivity of a person to commit crimes, demonstrated by conduct in manifest contradiction of socialist norms,’ which is sometimes used “to silence peaceful political opponents.”
  • “There were reports that defendants met with their attorneys for the first time only minutes before their trials and were not informed of the basis for their arrest within the required 168-hour period;” that bail “typically [was] not granted to those arrested for political activities;” that “police and security forces at times relied on aggressive and physically abusive tactics, threats, and harassment during questioning;” that “authorities may detain a person without charge indefinitely;” that officials often detain “suspects longer than the legally mandated period without informing them of the nature of the arrest, allowing them to contact family members, or affording them legal counsel;” that the “government [often] held detainees for months or years in investigative detention, in both political and nonpolitical cases.”

Denial of Fair Public Trial (Section 1.E):

  • “[P]olitically motivated trials were at times held in secret, with authorities citing exceptions for crimes involving ‘state security’ or ‘extraordinary circumstances.’”
  • “[C]ourts regularly failed to protect or observe these [due process] rights. The law presumes defendants to be innocent until proven guilty, but authorities often ignored this, placing the burden on defendants to prove innocence.”
  • “Criteria for admitting evidence were arbitrary and discriminatory.” In cases involving “‘crimes against the security of the state,’ defense attorneys were not allowed access until charges were filed.”
  • For charges of ‘precriminal dangerousness,’ “the state must show only that the defendant has “proclivity” for crime, so an actual criminal act need not have occurred.”
  • “The government continued to hold political prisoners and detainees but denied it did so and refused access to its prisons and detention centers by international humanitarian organizations and the United Nations.”
  • There are “political prisoners,’ but details are difficult to obtain.
  • “No courts allowed claimants to bring lawsuits seeking remedies for human rights violations.”

Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence (Section 1.E): 

  • “Reportedly government officials routinely and systematically monitored correspondence and communications between citizens, tracked their movements, and entered homes without legal authority and with impunity.”
  • “Covert techniques to obtain information . . . . included information gathering by undercover officers, voice recording, location monitoring, filming, communications intercepts, and surreptitious access to computer systems.”
  • “The Ministry of Interior employed a system of informants and neighborhood committees, known as “Committees for the Defense of the Revolution,” to monitor government opponents and report on their activities.”

Freedom of Expression, Including for the Press” (Section 2.A):

  • “Laws banning criticism of government leaders and distribution of antigovernment propaganda carry penalties ranging from three months to 15 years in prison.”
  • “The government did not tolerate public criticism of government officials or programs and limited public debate of issues considered politically sensitive.”
  • “[S]ome religious groups reported increased restrictions to express their opinions during sermons and at religious gatherings.”
  • “The government directly owned all print and broadcast media outlets and all widely available sources of information.”
  • “The government harassed and threatened any independent citizen journalists who reported on human rights violations in the country.”
  • “The law prohibits distribution of printed materials considered ‘counterrevolutionary’ or critical of the government.”
  • “The government used a combination of website blocking, pressure on website operators, arrests, intimidation, imprisonment, and extralegal surveillance to censor information critical to the regime and to silence its critics.”
  • “The government restricted academic freedom and controlled the curricula at all schools and universities, emphasizing the importance of reinforcing ‘revolutionary ideology’ and ‘discipline.’”

Freedoms of Peaceful Assembly and Association (Section 2.B):

  • The constitutional “limited right of assembly . . . is subject to the requirement that it may not be ‘exercised against the existence and objectives of the socialist state.’ The law requires citizens to request authorization for organized meetings of three or more persons.”
  • “Independent activists, as well as political parties other than the CCP, faced greater obstacles, and state security forces often suppressed attempts to assemble, even for gatherings in private dwellings and in small numbers. The government refused to allow independent demonstrators or public meetings by human rights groups or any others critical of any government activity.”
  • “The government, using undercover police and Ministry of Interior agents, organized “acts of repudiation” in the form of mobs organized to assault and disperse those who assembled peacefully.”
  • “The government routinely denied citizens freedom of association and did not recognize independent associations. The law proscribes any political organization not officially recognized. A number of independent organizations, including opposition political parties and professional associations, operated as NGOs without legal recognition, and police sometimes raided their meetings.”
  • “The government routinely denied citizens freedom of association and did not recognize independent associations. The law proscribes any political organization not officially recognized. A number of independent organizations, including opposition political parties and professional associations, operated as NGOs without legal recognition, and police sometimes raided their meetings.”

Freedom of Movement (Section 2.D):

  • “There continued to be restrictions on freedom of movement within the country, foreign travel, and migration with the right of return.”
  • “The government also barred citizens and persons of Cuban descent living abroad from entering the country, apparently on grounds that they were critical of the government or for having “abandoned” postings abroad.”

Protection of Refugees (Section 2.F): “Cuba is not a signatory to the 1951 Refugee Convention [Treaty].”

Freedom to Participate in the Political Process (Section 3):

  • “[C]itizens do not have the ability to form political parties or choose their government through the right to vote in free and fair elections or run as candidates from political parties other than the CCP. The government forcefully and consistently retaliated against those who sought peaceful political change.”
  • “The new constitution includes many sections that restrict citizens’ ability to participate fully in political processes by deeming the CCP as the state’s only legal political party and the ‘superior driving force of the society and the state.’”

Corruption and Lack of Transparency in Government (Section 4): The government did not effectively enforce the law against corruption.

Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights (Section 5):

  • “The government subjected domestic human rights advocates to intimidation, harassment, periodic short-term detention, and long-term imprisonment on questionable charges.”
  • “The government refused to recognize or meet with any unauthorized NGOs that monitored or promoted human rights.”
  • “The government continued to deny international human rights organizations, including the United Nations, its affiliated organizations, and the International Committee of the Red Cross, access to prisoners and detainees.”

Discrimination, Societal Abuses, and Trafficking in Persons (Section 6):

  • “The government specifically targeted activists organizing a campaign called Women United for Our Rights that asked the state to update data on crimes against women, train officials to handle crimes against women, and define gender-based violence in the law.”
  • “A large number of persons with disabilities who depended on the state for their basic needs struggled to survive due to lack of resources and inattention.”
  • “Afro-Cubans often suffered racial discrimination, and some were subject to racial epithets while undergoing beatings at the hands of security agents in response to political activity. Afro-Cubans also reported employment discrimination, particularly in positions of prominence within the tourism industry, media, and government.”
  • Although Cuba has “a history of state-sanctioned events in support of the LGBTI community,” several “unrecognized NGOs that promote LGBTI human rights faced government harassment, not for their promotion of such topics, but for their independence from official government institutions.”

Freedom of Association and the Right to Collective Bargaining (Section 7.A): “The government continued to prevent the formation of independent trade unions in all sectors. use politically motivated and discriminatory dismissals against those who criticized the government’s economic or political model.”

Prohibition of Forced or Compulsory Labor (Section 7.B): “Many citizens were employed by state-run entities contracted by foreign entities inside the country and abroad to provide labor, often highly skilled labor such as doctors or engineers. These employees received a small fraction of the salaries paid to the state-run company, often less than 10 percent. For example, in the “Mais Medicos” program run in cooperation with the Pan-American Health Organization in Brazil, of $1.3 billion the Brazilian government paid for the services of Cuban doctors, less than 1 percent–only $125 million–was paid to the doctors who provided the services. The rest went into the Cuban government’s coffers. Doctors in the program complained of being overworked and not earning enough to support their families. Former participants described coercion, nonpayment of wages, withholding of their passports, and restriction on their movement, which the government denied. Similar practices occurred in the tourism sector.”

Comments

The U.S.’ repeated allegation that Cuban medical personnel on foreign missions are engaged in illegal forced labor does not make it so. Moreover, there is a strong legal argument against that allegation.[3]

There may well be legitimate Cuban arguments against the other allegations mentioned above, which Cuba would need to assert and prove.

More importantly, the U.S. allegations ignore the long history of U.S. overt and covert hostile actions against the much smaller and militarily weaker island nation, and hence Cuba’s well-founded need to be suspicious of its domestic critics and to take some actions against those critics. This, however, does not provide Cuba with legitimate excuses for all of those actions.

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[1] State Dep’t, Secretary Michael R. Pompeo on the Release of the 2019 Country Reports on Human Rights Practices (Mar. 11, 2020); Jakes, Critics Hear Political Tone as Pompeo Calls Out Diplomatic Rivals Over Human Rights, N.Y. Times (Mar. 11, 2020).

[2] State Dep’t, 2019 Country Reports on Human Rights Practices: Cuba (Mar. 11, 2020).

[3] See, e.g.,  these posts to dwkcommentaries.com: U.S. Unjustified Campaign To Discredit Cuba’s Foreign Medical Mission Program (Sept. 4, 2019); U.S. Litigation Over Cuba Medical Mission Program (Feb. 12, 2020); Cuba Response to U,S, Campaign Against Cuba’s Medical Missions (Feb. 13, 2020).

 

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).

 

Another U.S. Designation of  Cubans Ineligible To Enter U.S.   

On January 2, 2020, the U.S. Department of State designated  Leopoldo Cintra Frias and his two children ineligible to enter the U.S.[1]

He is the Minister of the Revolutionary Armed Forces of Cuba (MINFAR) and according to the State Department. “bears responsibility for Cuba’s actions to prop up the former Maduro regime in Venezuela.  Alongside Maduro’s military and intelligence officers, MINFAR has been involved in gross human rights human rights

violations and abuses in Venezuela, including torturing or subjecting Venezuelans to cruel, inhumane, or degrading treatment or punishment for their anti-Maduro stances.  Dismantling Venezuela’s democracy by terrifying Venezuelans into submission is the goal of MINFAR and the Cuban regime.”

This U.S. action claims to be based on the FY 2019 Department of State, Foreign Operations, and Related Programs Appropriations Act, when “the Secretary of State has credible information that foreign government officials have been involved in significant corruption or a gross violation of human rights.”

This U.S. action probably is merely words since this blogger suspects that it is highly unlikely that Senor Cinta Frias or his children want to come to the U.S.

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[1] State Dep’t, Press Statement: Public Designation of Leopoldo Cintra Frias Due to Involvement in Gross Violations of Human Rights (Jan. 2, 2020).