On May 30, without fanfare, a notice of intent to establish a State Department Commission on Unalienable Rights was published in the Federal Register. According to the Commission’s draft Charter, obtained by Just Security, the stated purpose of the Commission is to provide “fresh thinking about human rights” and propose “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights…to which [Dr. Martin Luther] King called us while standing in front of the Lincoln Memorial in Washington D.C.”
The draft Charter describes the Commission’s duties as including “advice and recommendations, for the secretary’s approval, to guide U.S. diplomatic and foreign policy decisions and actions with respect to human rights in international settings.” This raises concerns that the Commission, which will have the State Department’s Office of Policy Planning “supply all staff and support functions” and offer guidance directly to Secretary Pompeo, is designed to bypass the Office of Legal Adviser and the Bureau of Democracy, Human Rights and Labor.
Initial reporting on the Commission, by Nahal Toosi at Politico, highlighted concerns of human rights activists that the “natural law” language was code for religiously-infused opposition both to reproductive rights and to protections for members of the LGBTQ community. In subsequent days, Roger Pilon at the Cato Institute weighed in, acknowledging concerns that the Commission could be used as a vehicle to advance a particular religious agenda, but ultimately concluding that “this commission, properly staffed and conducted, affords an opportunity to redirect our public debate to America’s first principles.”
Upholding human rights is an American value. And while leading the way globally isn’t always what we’ve done best, when we do it well we see not only the inherent benefit, but also the alignment between human rights and national security. To be sure, there are myriad concerns to raise about both the theory and practice of human rights. Has human rights discourse over-promised? Does it serve a fundamentally imperialist agenda and replicate existing hierarchies of power? Does it misrepresent its own history? Yet imagining that the Commission will engage these debates requires overlooking both the personnel involved and the broader policy environment in which the Commission will operate. The Commission is particularly troubling in the context of attacks on minority communities and human rights defenders on a global scale, including the rise of authoritarian governments that are backtracking on decades of norm development.
“In Defense of Natural Law”
According to the ABC, the concept note for the Commission was penned by Professor Robert George. On the faculty at Princeton University, Professor George is the recipient of a host of academic accolades. He is also a staunch opponent of same-sex marriage and co-founder of the anti-gay rights group, National Organization for Marriage.
With respect to the use of the term “natural law” in the Commission’s description, George’s 1999 book, In Defense of Natural Law, is instructive. As George notes in the book’s introduction, his goal is to deploy a dialectical methodology to defend the so-called “new natural law” or “Grisez-Finnis” theory.
Grisez refers to Germain Grisez, a Professor of Christian Ethics at Mount Saint Mary’s University in Maryland. Grisez’s website, The Way of the Lord Jesus, details his prolific writings including an excerpt from his book on abortion, which concludes with a direct analogy between the prejudice of racists and the prejudice against the unborn by those who support abortion rights. John Finnis, an Australian legal theorist who is an emeritus Oxford professor and Professor of Family Law at Notre Dame Law School, has spent decades of scholarly work on the argument that “homosexual conduct” is “never a valid, and humanly acceptable choice and form of life.”
George’s defense of the Grisez-Finnis line of argumentation, with its opposition to abortion and homosexuality, is only one strand of the expansive literature on natural law, and attracts critique even among supporters of natural law. But natural law theories and the related concept of natural rights more generally, are nonetheless widely deployed in conservative circles as a bulwark against human rights.
As a 2017 Heritage Foundation report framed the issue: “Civil and political rights are products of government; natural rights are not.” The report, authored by Peter C. Myers, a professor of political science at the University of Wisconsin Eau Claire, goes on to critique the idea of economic and social rights too, contrasting formal with effective rights. The former, Myers argues, are consistent with the notions of our Founding Fathers; the latter are not. (Interestingly, in light of the reference to Dr. Martin Luther King’s in the Commission’s charter, this is a theme Myers developed in earlier work casting King’s first phase project as consistent with American traditions of natural rights, but his post-Lincoln Memorial activism as a problematic departure more aligned with 20th century human rights discourse.)
Myers grapples with the expansion of rights since American Independence. In some cases, such as universal suffrage, “we have come newly to recognize that a given class of persons possesses the requisite competencies for the exercise of rights.” But in other cases, new rights indicate that“the qualifications for possessing [rights] have fallen.” Rights based on sexual identity and gender orientation, Myers argues, fall squarely in the latter category. Indeed, he lists a parade of horribles that would flow from accepting the possibility of individuals identifying as transgender: “On the same premise, how could we deny the claim of someone who self-identifies as older or younger than his natural age, so that a natural 55-year-old might become eligible by subjective identity for full Social Security benefits…?”
The Policy Environment
Support for particular rights has varied over time, across administrations, and along political lines. But even against this backdrop, the Trump Administration has been particularly hostile to the trilogy of rights that conservative advocates of a natural law approach seem to fear most: reproductive rights, transgender rights, and rights based on sexual orientation.
While the domestic debate over abortion has continued to rage, the Trump Administration has pursued its opposition to reproductive rights in the global context, to a degree not seen in prior Republican administrations. In 2017, it expanded the so-called “Mexico City Policy” of the Reagan era from a requirement that foreign NGOs certify that they will not “perform or actively promote abortion as a method of family planning” as a condition of receiving U.S. funds for “family planning assistance” (affecting an estimated $600M of funds in 2018), to requiring the same certification for “global health assistance” (affecting up to $7.4B in 2018 funding). Moreover, internal documents recently reviewed by Foreign Policy show that the U.S. has drawn a red line on any references to “sexual and reproductive health services” across its interactions with the United Nations, fearing such language is supportive of abortion.
The Trump Administration has rolled back Obama-era protections for transgender people, rescinding guidance for educational institutions to provide protections for transgender students, and determining that transgender soldiers may not enlist in the military unless they do so on the basis of their biological sex.
And notwithstanding the recent announcement of a global effort to end the criminalization of homosexuality following the reported execution of a gay man in Iran earlier this year, the Trump Administration has not only failed to lead on LGBTQ rights, but has repeatedly deemphasized the issue in its foreign policy conversations. In representative example, Vice President Mike Pence met with President Al Sisi in January 2018, soon after Egypt jailed 16 men for “inciting debauchery” and “abnormal sexual relations” following a gay pride flag being raised at a pop concert. Asked by reporters whether he raised LGBT rights in his meeting, Pence replied, “We talked about the importance of respecting diversity in communities; the importance of respecting religious diversity in communities.”
Cause for Concern
Against this backdrop, the concerns of human rights activists identified in the initial reporting on the Commission seem well-founded, and play out against a backdrop of yet more attacks on LGBTQ communities globally. Anti-gay purges that began in Chechnya in 2017 have continued, with torture and extrajudicial killings becoming routine. Attacks against members of the LGBTQ community are escalating in Indonesia. And around the world, those fleeing such persecution are finding it increasingly difficult to receive asylum from countries that, previously welcoming to refugees, are now in the throes of a populist backlash against the post-World War II asylum system. If the Commission ultimately follows the ideological roots of its conception, it risks not simply legitimizing such developments, but strengthening them.
Finally, given the structure indicated in the Charter, the Commission raises potentially serious institutional implications. Both the Office of Legal Adviser and the Bureau of Democracy, Human Rights and Labor, are staffed with career civil servants who understand U.S. legal obligations and are steeped in knowledge of the human rights system in order to serve the Secretary of State. The Commission will consist of “experts and consultants” to be “appointed by the Secretary of State.” If the Commission serves as an end-run around the advice of government employees, it sets a dangerous precedent for the process of U.S. foreign policy formulation.
Editor’s note: The Draft Charter for the Department of State’s Commission on Human Rights is available as a PDF and below.