(Editor’s Note: This is the first of a two-part series examining the work of the Commission on Unalienable Rights, formed in July 2019 by Secretary of State Mike Pompeo. Part 2 discusses why the themes emerging in the commission’s work are problematic and harmful from a human rights perspective.)
Human rights groups sued Secretary of State Mike Pompeo last week in a bid to shut down his Commission on Unalienable Rights, a panel that was swiftly and widely criticized when it was set up in 2019 because of its clear anti-human rights agenda. The suit highlights some of the core flaws in the design and conduct of the commission, including its unbalanced membership, withholding of records, and closed meetings. When it was created, many also critiqued the commission for its flawed mandate and purpose, predicting that it would seek to push a conservative agenda and undermine women’s, LGBTI, and socioeconomic rights.
The commission has now been running for more than eight months, but news coverage of its work and public attendance at its hearings has been minimal. What has the commission been doing? Have the fears of its anti-rights agenda been borne out?
A team from the Duke Law International Human Rights Clinic has been monitoring all of the commission’s hearings to answer these questions and more. In this article, we look closely at what has come out of the commission to date. In our next installment, we will analyze why its actions thus far are concerning to the protection of fundamental rights in the United States and abroad.
The bottom line: the commission is poised to adversely shape U.S. foreign policy, dismay U.S. allies, provide a playbook for other conservative governments looking to follow suit, and produce normative scaffolding for other, similarly conservative moves within the United States.
What is the commission?
Pompeo set up the commission in July 2019 to carry out a “profound reexamination” of human rights and to “review the role of human rights in American foreign policy.” For Pompeo, the commission’s role is to “point the way toward that more perfect fidelity to our nation’s founding principles” of “natural law and natural rights.”
This use of “natural law and rights” language and Pompeo’s expression of concern about so-called “new” rights, combined with the Trump administration’s atrocious record on rights, and the anti-women’s rights and anti-LGBTI stance of a number of the appointed commissioners immediately set off alarm bells. A number of the commission’s 11 members have publicly stated their anti-contraception, anti-abortion, and anti-marriage equality views, often in extreme terms (e.g., referring to same-sex marriage as a “parody”).
What has the commission done to date?
The commission is tasked with producing a report to Pompeo by around July 4, focusing on recommended principles, as distinct from policy recommendations. To this end, according to the commission, its members have had closed meeting(s) of several working groups devoted to specific themes. It also apparently has started drafting its final report and recommendations. Additionally, the commission has held five out of six planned public hearings:
- The first and second meetings of the commission focused on “human rights and the American founding.”
- The third and fourth focused on “international legal commitments concerning human rights that the United States has entered since World War II.”
- The final two meetings address “the role of human rights in American foreign policy.”
While each hearing has been public, attendance has been minimal. The mere dozens of attendees include members of foreign governments, analysts from think tanks, academics, and human rights advocates, as well as representatives of conservative groups.
Each hearing has featured as speakers two experts, most of them academics (six out of 10 experts to date: Michael W. McConnell, Wilfred M. McClay, Cass Sunstein, Orlando Patterson, Diane Orentlicher, Martha Minow), as well as one U.S. government official (Miles Yu), and three NGO representatives (Michael Abramowitz, Ken Roth, Thor Halvorssen).
At each multi-hour hearing, the experts present and then engage in a back-and-forth with the commissioners, and time is left at the end for a brief Q&A between the public and the commissioners, when hearing attendees can ask questions or make comments or submissions. At the last hearing, for example, one conservative group presented a petition to “Make the Family Great Again” on “how and why the family itself has rights.” At an earlier hearing, Brazil’s state secretary for Family Affairs, Angela Vidal Gandra da Silva Martins, expressed strong support for the commission, decrying that “new human rights” have been created and highlighting the importance of defining unalienable rights as the basis for democracies. As state secretary, Gandra Martins has referenced far-right President Jair Bolsonaro’s push for abstinence-only sex education, and last year she spoke at a Hungarian government-sponsored conference in Budapest focused on “the Christian identity of the continent.”
After each hearing, a summary of its content is prepared by the commission and posted online. While it is not possible to fully summarize the testimony of experts here, it is important to stress that many of the experts invited to testify by the commission have not confronted the commission’s anti-rights inclinations. Instead, some testimony has confirmed these biases, as well as taken a markedly non-critical posture toward the United States’ record on human rights abroad.
For example, testimony has celebrated America’s founding principles and shown outright disdain for the international human rights system (McConnell and McClay), emphasized U.S. leadership on human rights (Abramowitz), focused on human rights problems in other countries, specifically China, and highlighted U.S. values in contrast (Yu), and identified the pre-eminence of civil and political rights and the problems with the human rights system, including NGOs (Halvorssen).
Testimony also discussed the role of economic, social, and cultural rights at the time of the founding (Sunstein), how democracy is not a precondition for the fulfillment of human rights (Patterson), the inter-dependence of rights and the right to reproductive health care, including abortion (Roth), the challenges of transitional justice (Orentlicher), and how dignity is an essential element of human rights (Minow).
Yet many important issues have not been addressed by the invited experts, and so large swathes of information are not yet before the commission (e.g., on the human rights treaties, the workings of multilateral institutions, or the local-level effects of U.S. foreign policy on communities abroad). The commission also has not made a concerted effort to evaluate the credibility of experts and the scope of the testimonies received. Some of those invited to testify are notorious for their narrow take on rights (e.g., Halvorssen), and the lack of expert testimony from grassroots stakeholders and/or those outside of the United States is difficult to ignore.
What has come out of the commission’s hearings?
Our analysis of statements made as the commission was set up, as well as at the commission’s hearings, reveals a troubling array of assertions by the U.S. government, commissioners, and many of the experts it has asked to testify. The Duke International Human Rights Clinic is currently preparing a detailed report for submission to the commission, analyzing these statements and how they relate to international human rights law. Here, we summarize some of the key problematic views and assertions to date:
A general skepticism toward international human rights, treaties, and institutions. Human rights have been described as actually just “political preferences” or “good things,” as well as being marred by confusion, including for the governments and international institutions that reportedly struggle to understand their rights obligations. The commission is also informed by unnuanced assessments of international institutions that sideline their positive impacts. According to Pompeo, they have “drifted” and for one commissioner (Peter Berkowitz of the State Department and Stanford University’s Hoover Institution) they are to be faulted because these bodies sometimes include non-rights respecting countries. Some experts echoed this point, with one (Halvorssen) describing the U.N. as a “playground for dictatorships.”
Speakers have upheld U.S. leadership on human rights, despite a record of abrogation that has only spiraled downward under the Trump administration. One expert, Abramowitz, stated that “American leadership is essential if democracy and human rights are to prevail over the forces of tyranny and oppression.” The commission’s work to date has also downplayed the importance of treaties, starting with the commission’s own charter, which requires that alongside “founding principles,” the panel should use the Universal Declaration of Human Rights and not binding international human rights treaties to ground its work. For one commissioner (David Tse-Chien Pan, a University of California, Irvine, professor), “popular sovereignty” might provide more of a basis for human rights than treaties written and signed by almost every government in the world. Overall, according to one expert (McConnell), there is reason to be “skeptical of modern international human rights.”
A view that there are too many rights and an interest in rolling back rights protections. Here, the assertion is that rights claims have expanded, not to protect important needs and values, but with a view to “rewarding interest groups and dividing humanity into subgroups.” According to one commissioner (Paolo Carozza, a professor of law and political science at the University of Notre Dame), human rights law now recognizes too many “new” rights that are not “grounded in the treaties.” One expert (McClay) pointed to the “hypertrophy” and “imperial and inexorable forward march” of rights, and argued that rights should be reduced to be “few” in number. For one commissioner (Berkowitz), a “cadre of bureaucrats, judges, scholars, and activists” is at risk of “succumbing to special interests and self-serving agendas.” For Chair Mary Ann Glendon, a Harvard Law professor, this proliferation is a fundamental problem, because “if everything is a right, then nothing is.”
A perception that there is or needs to be a “hierarchy” among rights, including because rights conflict. Commissioners and experts, in their comments, generally have ignored the interdependence and equality of all human rights. Instead, they have argued that there are “clashes” between rights, and expressed concern about “losing focus” on certain rights (particularly religious freedom), or they say they are worried about an “obscure[ing of] the distinction between fundamental rights . . . and partisan preferences.”
Some identify different forms of rights “hierarchies”: non-derogable (i.e., can’t be suspended) vs. derogable rights (Commissioner Jacqueline Rivers, a Harvard University sociology lecturer); “ad hoc” rights (created by “politicians and bureaucrats”) vs. “core,” “unalienable” rights; and economic, social, and cultural rights that they consider “contrived rights” vs. civil and political rights. One expert (Yu) lamented that the Pope has “said some ‘not helpful’ things that elide distinctions between economic and unalienable rights.”
A narrow basis for re-examining rights and resolving rights “conflicts.” Rather than look to existing tools (including in treaties that bind the United States), the commission’s charter mandates that it base its work on the Universal Declaration of Human Rights, as well as U.S. “founding principles” of unalienable rights. For at least one commissioner (Berkowitz), international treaties are not automatically sources for unalienable rights, and it is Christianity itself that “runs through the United States Constitution and, almost 200 years later, the Universal Declaration of Human Rights.” For Pompeo too, unalienable rights come from God.
A belief that religious freedom is one of the most, if not the most, important human rights, and it can get lost when other rights are recognized. Religious freedom was clearly intended to be a core focus of the commission from the outset, and this was welcomed by many, including the U.S. Commission on International Religious Freedom, which heralded the new panel’s formation with a statement in which its chair, Tony Perkins, said it was “another way of ensuring that the protection of these fundamental rights – the most foundational of which is freedom of religion or belief – is a core element of strategic policy discussions.”
Religious freedom has been frequently discussed in the commission hearings, including by Berkowitz and Katrina Lantos Swett (president of the Tom Lantos Foundation for Human Rights and Justice) who have both made clear that they see tensions between religious freedom on the one hand and women’s reproductive rights on the other. For at least some of the commission members (notably Lantos Swett), religious freedom is a right without limits, including because Article 18 of the Universal Declaration of Human Rights, which guarantees the right to religious freedom, does not have a specific limitation clause. Commission Chair Glendon also previously characterized the right to religious freedom in Article 18 of the Universal Declaration as “capacious.”
This focus on religious freedom and how that emphasis intersects with the commission’s discussions on topics ranging from rights proliferation to conflicts between rights to hierarchies of rights, will be explored further in our next post.