A prior post reviewed the limited public record (to date) of the first meeting on October 23 of the Commission on Unalienable Rights.
To gain a better understanding of what to expect from the Commission, this blog will examine two recent commentaries on human rights by, and an interview of, the Commission’s Chair, Mary Ann Glendon, the Learned Hand Professor of Law at the Harvard Law School, the author of a major book about the development of the Universal Declaration of Human Rights (UDHR) [1] and a prominent Roman Catholic who was U.S. Ambassador to the Vatican in the George W. Bush Administration. The Conclusion will evaluate her comments and those made by others at the first meeting.
Reclaim Human Rights (August 2016) [2]
Glendon began this article by acknowledging that she had been a participant in the Ramsey Colloquium’s 1998 affirmation of the UDHR as “the most available discourse for cross-cultural deliberation about the dignity of the human person” and as making “possible a truly universal dialogue about our common human future.” [3] She also affirmed she was “a longtime supporter of the cautious use of rights language, and a frequent critic of its misuses.”
Nevertheless, Glendon said that a 2016 criticism of human rights by R.R. Reno, the editor of First Things, [4] caused her to “ponder whether the noble post-World War II universal human rights idea has finally been so manipulated and politicized as to justify its abandonment by men and women of good will.”
According to Glendon, by “1998, governments and human-rights organizations alike were ignoring the fact that the UDHR was constructed as an integrated document whose core fundamental rights were meant to be ‘interdependent and indivisible.’ [However, by 1998, the] sense of the interdependence among rights and the connections between rights and responsibilities was fading.” Moreover, “a host of special-interest groups [were inspired] to capture the moral force and prestige of the human-rights project for their own purposes. . . .[The] core of basic human rights that might be said to be universal was being undermined by ‘multiplying the number of interests, goods, and desires that are elevated to the status of rights.”
As a result, by 2016, she argues, “the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy.”
Reno’s criticism of human rights, Glendon continues, emphasizes “the way that human rights as an ideology detracts from the difficult and demanding work of politics.” This is especially true in the U.S., she says, as “judicially-created rights have displaced political judgements that could and should have been left to the ordinary processes of bargaining, education, persuasion, and voting.” This has damaged “the American democratic experiment” by making it more difficult to correct an unwise judicial decision, intensifying “the politicization of the judicial selection process,” depriving “the country of the benefits of experimentation with different solutions to difficult problems” and accelerating “the flight from politics.”
Glendon concludes by urging “church leaders and people of good will to make every effort to connect the human-rights project to an affirmation of the essential interplay between individual rights and democratic values. We should insist on the connection between rights and responsibilities. And we should foster an appreciation of the ultimate dependence of rights upon the creation of rights-respecting cultures.”
“Renewing Human Rights” (February 2019) [5]
“When Eleanor Roosevelt and a small group of people gathered at the behest of the U.N. in early 1947 to draft the world’s first ‘international bill of rights’” (the subsequent UDHR), the “idea that some rights could be universal—applicable across all the world’s different societies—was controversial.”
“Yet in the decades that followed, the UDHR . . . successfully challenged the view that sovereignty provided an iron shield behind which states could mistreat their people without outside scrutiny.”
“But now . . . the international human rights idea is in crisis, losing support both at home and abroad. Good intentions, honest mistakes, power politics, and plain old opportunism have all played a role in a growing skepticism, and even a backlash.”
As Glendon sees it, “there were three stages” to this change: [1] a pick-and-choose attitude toward rights initiated by the two superpowers in the Cold War era [U.S. and U.S.S.R.]; [2] an over-extension of the concept once the human rights idea showed its moral force; and [3] a forgetfulness of the hard-won wisdom of the men and women who had lived through two world wars.”
“The end of the Cold War increased the influence of human rights. American predominance, Western ideological ascendancy, a series of atrocities and conflicts, and a growing role for the United Nations and other international actors spurred the rapid growth of human rights activism in the 1990s. By the 2000s, there were many human rights organizations, including specialists, activists, agencies for monitoring and enforcement, and academic journals.”
These changes brought about “an interventionist approach, backed by Western—especially American—power. . . . The establishment of state-like institutions such as the International Criminal Court (which the United States ultimately did not endorse), and doctrines such as the ‘Responsibility to Protect,’ reflected this shift. They increased the human rights field’s ability to frame the international agenda and set global standards. . . . This encouraged an expansion in the number of basic rights.”
“Given that individual rights were gaining ascendancy, the role of social institutions and non-individualistic values were deemphasized. A one-size-fits-all approach triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and interdependence of fundamental rights were forgotten.”
Some states now object to “uniform methods of interpreting and implementing” human rights treaties and to “supranational institutions. They are remote from the people whose lives they affect. They lack public scrutiny and accountability, are susceptible to lobbying and political influence, and have no internal checks and balances.”
According to Glendon, the following “four major principles that the UDHR’s framers followed [in 1947-48] can reinvigorate the human rights idea in our own time:”
- “Modesty concerning universality. “The framers wisely confined themselves to a small set of principles so basic that no country or group would openly reject them. This was essential not only in order to gain broad political support within the U.N., but also to ensure that the Declaration would have deep and long-lasting support across vastly different cultures, belief systems, and political ideologies.”
- “Flexible universalism.” The UDHR framers “understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements.” For example, . . . [UDHR’s] Article 22 provides: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (Emphasis added.) Another example is Article 14, which states, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution,’ but is silent on how that right should be protected.
- “Interdependence of basic rights.” The UDHR makes it clear “that everyone’s rights depend on respect for the rights of others, on the rule of law, and on a healthy civil society. . . . The framers of the [UDHR] did not expect uniform management of tensions or conflicts between rights. . . . [and instead] assumed that communities must balance the weight of claims of one right versus another before determining the best course of action.” Only a few rights do not allow such variation: “protections for freedom of religion and conscience” as well as “prohibitions of torture, enslavement, degrading punishment, . . .retroactive penal measures, and other grave violations of human dignity.”
- “Subsidiarity.” Emphasis on “the primacy of the lowest level of implementation that can do the job, reserving national or international actors for situations where smaller entitles are incapable.” This principle, as stated in the UDHR’s Proclamation, also calls on “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.”
Glendon concludes by arguing for a new human rights goal: “the systematic elimination of a narrow set of evils for which a broad consensus exists across all societies. This would at least include “protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.”
Glendon Interview [6]
On August 3, 2019, Glendon was interviewed by Jack Goldsmith, another Harvard Law School professor of international law. Here are her comments that were not already expressed in the above articles.
She said there was confusion and crisis in human rights with roughly half of the world’s population without any rights and exasperated by disappointing performance of international human rights institutions.
Socrates said that definition of terms was the beginning of wisdom, and this is especially important since human rights are now important parts of U.S. foreign policy.
The concept of “unalienable rights,” which the printer of the original Declaration of Independence substituted for Thomas Jefferson’s draft’s use of “inalienable,” has evolved with the U.S. Bill of Rights (the first ten amendments to the Constitution) and the words of Abraham Lincoln and Martin Luther King, Jr.
While the U.S. Declaration of Independence talked about “laws of nature” or pre-political rights, the UDHR is grounded in the world’s religious and philosophical traditions.
Glendon emphasized the civil and political rights in the UDHR were interdependent with economic and social rights and pointed to the New Deal and the preambles of many U.S. statutes on economic and social issues as expressing this interdependence. This also is stated in Article 22 of the UDHR: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’” (Emphasis added.) This provision rejected the Soviet Union’s position that the state was solely responsible for such rights with Eleanor Roosevelt saying during the deliberations over the UDHR that no one had figured out how to do that without loss of freedom.
Another emphasis of Glendon was on the UDHR Proclamation’s words: ‘every individual and every organ of society, Keeping the [UDHR] constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of [U.N.] Member States themselves and among the peoples of territories under their jurisdiction.” Or as Judge Learned Hand said, ‘The spirit of liberty will die if not in the hearts of the people.’
Reactions
Glendon’s primary focus in these two articles and interview is the UDHR, which is mentioned as one of two guiding authorities for the Commission on Unalienable Rights, but Glendon has less to say about the U.S. Declaration of Independence, which is the other guiding authority for this Commission.
We all should seek to follow her emphasizing the UDHR’s interdependency of civil and political rights with economic and social rights and the importance of every individual and every organ of society striving by teaching and education to promote respect for human rights and freedoms.
The UDHR indeed is an important international human rights instrument. But it is a declaration adopted by the U.N. General Assembly in 1948. It does not by itself establish legal obligations on any nation state or other person.
In any event, Glendon says nothing about another provision of the UDHR’s Proclamation: “every individual and every organ of society , keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure [these rights and freedoms] universal and effective recognition and observance.” (Emphasis added.) In other words, the UDHR itself contemplated that there should be additional measures, including national legislation and international treaties, to secure the rights and freedoms articulated in the UDHR and, by implication, that these other measures will include “rights” language. Moreover, under the principle of “flexible universalism,” a developed and wealthy country like the U.S. could well find ways to secure the rights mentioned in the UDHR that are more complex than those in other countries.
A similar principle for the Commission exists in the U.S. Declaration of Independence. It says, as the Commission emphasizes, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” But the very next sentence of the U.S. Declaration says, but the Glendon and the Commission ignore, “That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (Emphasis added.) In other words, the U.S. Declaration contemplates that the not yet established U.S. government subsequently will enact statutes that protect the unalienable rights, only three of which are specifically mentioned in the Declaration.[7] These are not “ad hoc” rights as Secretary Pompeo likes to say.
As a result, after the 1948 adoption of the UDHR, various U.N. organizations have drafted and adopted many international human rights treaties,[8] and the U.S. federal and state governments have adopted many human rights statutes and regulations.
This obvious point is surprisingly overlooked by Glendon when she lauds UDHR’s Article 14 on the right to asylum as an example of flexible universalism because it does not say how that right should be protected. But the 1951 Convention Relating to the Status of Refugees that entered into force on April 22, 1954, defines”refugee” and specifies many conditions for that protection while limiting reservations under Article 42. Presumably she is not arguing that this treaty was a mistake.
Indeed, we should all celebrate, not complain as Secretary Pompeo likes to do, that there has been such proliferation or in Glendon’s words, “too much contemporary emphasis on ‘rights’ language. These arguments by Pompeo and Glendon can be seen as underhanded ways to cut back or eliminate rights that they do not like, which I assume would include abortion and LGBQ rights. Such rights constantly are criticized by her church (Roman Catholic) and by the Commission’s creator, Secretary of State Michael Pompeo, and others in the State Department.[9]
Criticism of Glendon’s apparent adherence to traditional Roman Catholic teachings on some of these issues comes from her successor as U.S. Ambassador to the Vatican in the Obama Administration, Miguel Diaz, along with 128 Catholic activists and leaders, in a letter opposing the Commission. [10] They said, “Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world. Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world,” they write. “Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Of most urgent concern is that the composition of the Commission indicates that it will lead our State Department to adopt policies that will harm people who are already vulnerable, especially poor women, children, LGBTI people, immigrants, refugees, and those in need of reproductive health services. This is being done “in the name of a very partial version of Christianity that is being promoted by the current Administration.” “All human beings,” however, “have been created in God’s image and all have been endowed by their Creator with the fundamental right to Life, Liberty, and the pursuit of Happiness. No person speaking in the name of government or in the name of God can do so to undermine or to deny this right.”
Nor does Glendon discuss how to resolve conflicts among rights. For example, the U.S. Declaration’s mention of “life” as one of the “unalienable rights” is taken by some, and probably Glendon, as a basis for arguing there should be no right to an abortion. But an abortion may be necessary to protect an expectant woman’s right to “life” or her “pursuit of happiness.” How are those conflicts resolved? That is why we have federal and state and international courts and agencies to resolve these conflicts or disputes.
The previously cited “four major principles” of the UDHR are worthy of remembering and guiding future human rights, internationally and domestically.
Glendon, however, fails to acknowledge the continued use of the “flexible universalism” principle in human rights treaties that allow for their ratification by nation states with reservations for at least some of the treaty’s provisions. And, of course, a state may chose not to ratify a treaty and thereby not be bound by any of its provisions. [11] Moreover, there are mechanisms for other states and international agencies to address these reservations and non-ratifications. For example, in the U.H. Human Rights Council’s Universal Periodic Review process, the Council and other states may, and do, make recommendations for states to withdraw reservations or ratify certain treaties. The same was done by the Council’s predecessor, the U.N. Human Rights Committee.[12]
The words of Professor Michael McConnell from the Commission’s first meeting should also be remembered in this evaluation of its ongoing work. He warned that the term “‘unalienable rights,’ which comes to us from our country’s protestant reform traditions, has never had a common or precise definition. The phrase identifies a philosophical concept, rather than a concrete set of rights. And while the concept often prioritizes freedom of religion, McConnell cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.”
“McConnell also recognized the implicit failures of this philosophical approach. While the term ‘unalienable rights’ makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.”
Andrea Schmitt of the Center for American Progress who attended the Commission’s first meeting also had words of wisdom for the Commission. She said, “It is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others. Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world.”
We all should thank Professor Glendon for her expertise and willingness to serve as Chair of the Commission. Those of us interested in international human rights need to carefully follow the Commission’s deliberations and eventual reports and express our agreements and disagreements with respect and reasoned arguments.
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[1] Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001); The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).
[2] Glendon, Reclaim Human Rights, First Things (Aug. 2016).
[3] The Ramsey Colloquium apparently published reflections about early Christianity’s treatment of homosexuality. (Graeser, The Ramsey Colloquium and Other First Things Resources, Mars Hill Audio (June 29, 2001).
[4] Reno, Against Human Rights, First Things (May 2016). Reno is a former professor of theology and ethics at Creighton University, a Jesuit institution until 2010 when he became the editor of First Things. In 2004 at age 45 he left the Episcopal Church to join the Roman Catholic Church and describes himself as a theological and political conservative. First Things, which describes itself as“America’s most influential journal of religion and public life,” is published by the Institute on Religion and Public Life, an interreligious, nonpartisan research and educational 501(c)(3) organization. The Institute was founded in 1989 by Richard John Neuhaus and his colleagues to confront the ideology of secularism, which insists that the public square must be ‘naked,’ and that faith has no place in shaping the public conversation or in shaping public policy.” The Institute’s mission is to articulate a governing consensus that supports: a religiously pluralistic society that defends human dignity from conception to natural death; a democratic, constitutionally ordered form of government supported by a religiously and morally serious culture; a vision of freedom that encourages a culture of personal and communal responsibility; and loyalty to the Western tradition that provides a basis for responsible global citizenship.”
[5] Glendon & Kaplan, Renewing Human Rights, First Things (Feb. 2019) The co-author, Seth D. Kaplan, is a professorial lecturer at the Paul H. Nitze School of Advanced International Studies at John Hopkins University. He is a consultant to organizations such as the World Bank, USAID, State Department, United Nations and African Development Bank.
[6] Howell, The Lawfare Podcast: Mary Ann Glendon on Unalienable Rights, Lawfare (Aug. 3, 2019).
[7] See The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes, dwkcommentaries.com (July 5, 2019).
[8] As of 2009, there were at least the following significant multilateral human rights treaties: (1) U.N. Charter; (2) International Covenant on Economic, Social and Cultural Rights; (3) First Optional Covenant to the International Covenant on Civil and Political Rights; (4) Covenant on the Prevention and Punishment of the Crime of Genocide; (5) Convention Relating to the Status of Refugees; (6) Protocol Relating to the Status of Refugees; (7) International Convention on the Elimination of All Forms of Racial Discrimination; (8) Convention on the Elimination of All Forms of Discrimination against Women; (9) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (10) Convention on the Rights of the Child; (11) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the elimination of the death penalty; (12) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (13) Statute of the International Court; and (14) International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. (Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 33-35 (Lexis/Nexis 4th edition 2009).)
[9] See, e.g., U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).
[10] White, Former U.S. envoy to Vatican opposes new commission headed by predecessor, Crux (Jul. 23, 2019).
[11] Under international law, “A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation unless (a) the reservation is prohibited by a treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) or (b), the reservation is incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties, arts. 19 (1980); id. Arts. 2(1) (d),20, 21, 22 ) See also,e.g., these posts to dwkcommentaries.com: Multilateral Treaties Signed, But Not Ratified, by the U.S., dwkcommentaries.com (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S., dwkcommentaries.com (Feb. 16, 2013).
[12] See, e.g., these posts to dwkcommentaries.com: U.H. Human Rights Committee’s Review of U.S. Human Rights (April 19, 2014); U.N. Human Rights Committee’s Hearings About U.S. Human Rights (April 21, 2014); U.N. Human Rights Committee‘s Concluding Observations on U.S. Human Rights (April 24, 2014); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: Background (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The Pre-Hearing Papers (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The UPR Hearing (June 16, 2018); U.N. Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review (Sept. 20, 2018).