On July 7, 2019, the U.S. State Department launched its Commission on Unalienable Rights to conduct ”an informed review of the role of human rights in American foreign policy.” This study was to focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 [United Nations] Universal Declaration of Human Rights.” The next day Secretary of State Michael Pompeo announced that the group’s chair would be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, who would be aided by nine other eminent members.[1]
Over the next year the Commission held six public meetings with these ten distinguished speakers: (1) Michael W. McConnell, a Stanford University law professor and former federal appellate judge; (2) Wilfred M. McClay, a humanities professor at the University of Tennessee; (3) Cass Sunstein, a professor at Harvard Law School; (4) Orlando Patterson, a Professor of Sociology at Harvard University; (5) Michael Abramowitz, the director of the Committee on Conscience at the U.S. Holocaust Memorial Museum; (6) Miles Yu, a Chinese-American and principal China policy and planning advisor to Secretary Pompeo; (7) Kenneth Roth, Executive Director of Human Rights Watch; (8) Diane Orentlicher, Professor of International Law at American University; (9) Martha Minow, Harvard Law School professor and expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities; and (10) Thor Halverssen, a Venezuelan-Norwegian businessman and human rights activist.[2]
On July 16, 2020, the Commission issued its 60-page report, which is subject to public comment through July 30 and which will be reviewed in this post. [3] Subsequent posts will examine Secretary Pompeo’s personal endorsement of that report and his conversation about the report with Chair Glendon as well as reactions from others outside the Commission.
The Report: Unalienable and Positive Rights
“The 17th century British subjects who settled, and built thriving communities along, the eastern seaboard of what they regarded as a new world brought with them a variety of traditions. . . . Among the traditions that formed the American spirit, three stand out. Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”
Each of these “distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights — that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction:” ‘that all men are created equal, that they are endowed by their Creator, with certain unalienable rights, that among there are Life, :liberty, and the pursuit of happiness.”
“To say that a right, as the founders understood it, is unalienable is to signify that it is inseparable from our humanity, and thereby to distinguish it from other sorts of rights. The most fundamental distinction is between unalienable rights — sometimes referred to as natural rights in the founding era and today commonly called human rights — and positive rights. Unalienable rights are universal and nontransferable. They are pre-political in the sense that they are not created by persons or society but rather set standards for politics. They owe their existence not to the determinations of authorities or to the practices of different traditions but to the fundamental features of our humanity. . . . {S]uch rights are essential to the dignity and capacity for freedom that are woven into human nature.”
“In contrast, positive rights are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings. Because custom, tradition, and positive law vary from country to country, so too do positive rights. In the same country, positive rights may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”
“To say that positive rights are not universal, however, is not to deny their importance, and to say that they are distinct from unalienable rights is not to deny that the two can be closely connected in political affairs. Unalienable rights provide a standard by which positive rights and positive law can be judged, while positive rights and positive law make the promise of unalienable rights concrete by giving expression to and instantiating unalienable rights.”
All of the above, in this blogger’s judgment, is eminently reasonable.
The Report: The Foremost Unalienable Rights
The Report, however, in this blogger’s opinion, is on shakier ground when it goes on to say, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy.”
“For the founders,” the Report goes on to say, “property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.’
‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”
“The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property. It also explains why many abolitionists thought that owning property was a necessary element of emancipation: only by becoming property-owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.”
“Religious liberty enjoys similar primacy in the American political tradition — as an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtues. In 1785, James Madison gave classic expression to its centrality in founding-era thinking in his ‘Memorial and Remonstrance Against Religious Assessments.’ Quoting the Virginia Declaration of Rights’ definition of religion, Madison wrote, ‘we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ Freedom of conscience in matters of religion is unalienable “because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.’”
The Report: The Universal Declaration of Human Rights (UDHR)[4]
The report endorsed the statement of Eleanor Roosevelt, a U.S. citizen and Chair of the commission that drafted the UDHR, when the U.N. General Assembly in 1948 was considering the adoption of this instrument: “[I]t is of primary importance, that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation. It is a Declaration of basic principles of human rights and freedoms, to serve as a common standard of achievement for all peoples of all nations” (emphasis added).
Moreover, the UDHR has ”overarching principles and structural dimensions” connected to the U.S. founding and foreign policy.
First, the UDHR “gave voice to the conscience of global humanity for the first time in history.”
Second, the UDHR “includes only those [rights] that were capable of attaining a near-universal consensus among the diverse nations represented at the UN . . . [and] were expressed in open-ended terms in order to achieve consensus and garner widespread support.”
Third, the UDHR “was written and understood as an integrated set of interlocking principles.”
Fourth, the UDHR “affirms that human dignity, freedom, equality, and community are indissolubly linked.” It makes “clear that human dignity is inherent: it pertains to human beings solely because they are human beings . . . and provides a moral standards for evaluating positive law.” Thus, “the idea of human dignity at the heart of the [UDHR}converges with the idea of ‘unalienable rights’ in the American political tradition.”
Fifth, the UDHR has the “capacity to accommodate a broadly diverse set of political, economic, cultural, religious, and legal traditions” and “can be concretely realized in different political systems . . . [allowing] significant latitude in their interpretation and application.”
The Report: Future U.S. Foreign Policy and Human Rights
- “U.S. Needs To Vigorously Champion Human Rights in Foreign Policy”
The U.S., “ by virtue of the principles deeply inscribed in its constitutional system and its international commitments, must champion vigorously the vision that it and nearly every other nation pledged to support when they approved the[UDHR].. It is by fidelity to what is best in the nation that the United States can respond most effectively to the manifold demands of the moment. Each of the major traditions that merged in America’s founding — Biblical faith, civic republicanism, and the modern tradition of freedom — nourished the nation’s core convictions that government is properly rooted in the consent of the governed and that its first purpose is to secure the rights that all human beings share. These core convictions, and the traditions that nourish them, are a source of inspiration and strength. It is no exaggeration to say that, with people around the world counting on America to champion fundamental rights, this country’s energetic dedication to that task will have no small influence on the future of freedom.”
- “The Power of Example Is Enormous”
The U.S. should serve “as an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity.” The U.S. also needs “to recognize the gap between our principles and the imperfections of our politics and can demonstrate, as we ask of others, tangible efforts at improvements.”
- “Human Rights Are Universal and Indivisible”
The U.S. needs to criticize when rights in UDHR “are radically subordinated in the name of development or other social and economic objectives.”
- “Universality and Indivisibility of Human Rights Does Not Mean Uniformity in Bringing Them to Life”
The UDHR contemplates “some variation in emphasis, interpretation, and mode of implementation.”
- “A Degree of Pluralism in Respecting Human Rights Does Not Imply Cultural Relativism”
“The scope for diversity in bringing human rights to life is circumscribed by the duty to ‘promote and protect all human rights and fundamental freedoms,’ and by the . . . [requirement] that all rights must be exercised with due respect for the rights of others and that its rights may be subject to “such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
- “Nation-States Have Some Leeway To Base Their Human Rights Policy on Their Own Distinctive National Traditions”
Yet such policies must be “consistent with the overarching conviction affirmed in Article I of the UDHR that ‘All human beings are born free and equal in dignity and rights.’”
- “Certain Distinctions Among [Human Rights] Are Inherent in the [UDHR] . . .,as Well as in the Positive Law of Human Rights”
“U.S. foreign policy can and should consider which rights most accord with national principles and interests at any given time. Such judgments must take into consideration both the distinctive American contributions to the human rights project and also prudential judgments about current conditions, threats, and opportunities.”
However, “some international norms, like the prohibition on genocide, are so universal that they are recognized as norms of jus cogens — that is, principles of international law that no state can legitimately set aside. The application of certain human rights demands a high degree of uniformity of practice among nations, as in the prohibition of torture, while others allow for considerable variation in emphases.”
- “Freedom, Democracy, and Human Rights Are Indissolubly Linked”
This “invites a [U.S.] commitment to the promotion of individual freedom and democratic processes and institutions as central to the U.S. human rights agenda. By the same token, it counsels considerable deference to the decisions of democratic majorities in other countries, recognizing that self-governance may lead them to set their own distinctive priorities. The U.S. promotion of fundamental rights should always be sensitive to the outcomes of ordinary democratic politics and the legitimate exercise of national sovereignty, and wary of rights claims that seek to bypass democratic institutions and processes.”
- “Social and Economic Rights Are Essential to a Comprehensive [U.S.] Foreign Policy”
The U.S. was a major supporter of the indivisibility principle as well as the aspiration for “better standards of life in larger freedom” . . . in the UN Charter and the [UDHR] Preamble.” For the U.S., implementation of these rights were “left up to each nation.” A “minimum standard of living is essential to the effective exercise of civil and political rights.”
- “New Claims of Rights Must Be Carefully Considered”
“The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.”
- “National Sovereignty Is Vital to Securing Human Rights”
The U.S. “should resist attempts at creating new rights through means that bypass democratic institutions and procedures, or that are inconsistent with the understandings on the basis of which the [U.S.] entered into international agreements. {The U.S. also] should respect the independence and sovereignty of nation-states to make their own moral and political decisions that affirm universal human rights within the limits set forth in the UDHR.”
- “The Seedbeds of Human Rights Must Be Cultivated”
“Respect for human rights must be cultivated, and the promotion of basic rights is only one element in building the kind of societies that promote human flourishing in all its dimensions. . . . The collective effort since 1948 to translate the UDHR’s broad principles of human rights into binding legal commitments through a network of treaties has achieved laudable results.”
As Eleanor Roosevelt said on the tenth anniversary of the UDHR, “Protection of human rights is a never-ending struggle, one that involves a nation’s sense of its own principles and purpose. . . . The surest protection of human freedom and dignity comes from the constitutions of free and democratic states undergirded by a tolerant, rights-respecting culture. As in the case of the United States’ distinctive rights tradition, the maintenance of the international human rights project will require attention to the ‘small places’ where the spirit of liberty is rooted, nurtured, and cultivated.”
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[1] See U.S. Commission on Unalienable Rights Is Launched, dwkcommentaries.com (July 8, 2019); State Dep’t, Charter for the Commission on Unalienable Rights; State Dep’t, Commission on Unalienable Rights, Member Bios. See also List of Posts to dwkcommentaries—-Topical: U.S. Commission on Unalienable Rights.
[2] State Dep’t, Policy Planning Staff, Commission on Unalienable Rights; State Dep’t, Public Submissions to the Commission [on Unalienable Rights].
[3] State Dep’t, Draft Report of the Commission on Unalienable Rights (July 16, 2020).
[4] The Commission Chair, Mary Ann Glendon, is a noted authority on the UDHR. See Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001). See also Human Rights Commentaries by Mary Ann Glendon, Chair of Commission on Unalienable Rights, dwkcommentaries.com (Nov. 2, 2019).