Having now likely ended its series of public hearings, the State Department’s Commission on Unalienable Rights largely confirmed the concerns of hundreds of human rights organizations, former government officials, advocates, and scholars who recommended in July 2019 that the body be disbanded. The assembly of generally conservative academics charged by Secretary of State Mike Pompeo to identify which internationally recognized human rights are “unalienable” and which are “ad hoc” is now presumably crafting its final report(s), which Pompeo recently said would be finalized in early July.
As detailed recently at Just Security by Duke Law’s Jayne Huckerby and Columbia Law’s Sarah Knuckey, among other concerning statements, commissioners used the body’s public meetings to:
- demonstrate skepticism toward human rights treaties and institutions;
- assert the dubious claim that there are a proliferation of human rights; and
- advance the idea that human rights are in need of prioritization or being placed into a hierarchy, conceivably with freedom of religion trumping other rights.
The Commission’s meetings were equally noteworthy for what they didn’t include: namely, reference from the commissioners to the Trump administration’s steady human rights backsliding at home, coziness with dictatorships and authoritarians abroad, and assault on multilateral institutions that protect human rights and advance U.S. interests.
All the while, the State Department seems to be paying only the thinnest of lip service to the legal requirements that govern advisory bodies under U.S. law. On March 6, a coalition of human rights non-profits filed a lawsuit against Pompeo, Director of Policy Planning Peter Berkowitz, and the Department of State, alleging that the Commission’s “inadequately explained creation, unbalanced membership, and opaque operation” violate the Federal Advisory Committee Act (FACA). The plaintiffs, who brought suit in the Southern District of New York, have sought an order that would bar the State Department from acting on the Commission’s advice or recommendations.
Perhaps the apotheosis of Pompeo’s promotion of the Commission came in January, during an interview with Tony Perkins, the head of the evangelical Christian lobbying organization Family Research Council.
In the exchange, Perkins teed up a leading question that strikes at the heart of the modern human rights movement: “When you talk about this, you’re essentially saying allow countries to make their own decisions based upon their religious conviction and cultural heritage and not force them through a form of cultural imperialism with our global policies to adhere to something that is an anathema to them.” Perkins, it seems, wanted Pompeo on the record in support of a theory that has led to widespread discrimination against ethnic and religious minorities, women, and LGBTQ persons in the United States and elsewhere around the world. It’s a point that would find support today in Beijing, Tehran, or Riyadh, among other autocratic capitals.
Pompeo, who should know better than to take such bait, seemed more than willing to describe international human rights standards in harsher terms than foreign governments who use religious cover to repress their citizens. His response to Perkins is worth quoting in full:
Yes, Tony, you nailed it. They have often had international organizations show up on their doorstep and tie resources, funding, support, commitment, all the things that some of these countries who aren’t wealthy nations need – tie them to a set of policies that are inconsistent with what their culture and their heritage reflects and their religious beliefs in their particular country would reflect.
We’ve talked about religious freedom. We want to make sure every country has the understanding how central that is to their nation’s success and how they shouldn’t let a bureaucrat somewhere sitting in an international organization interfere with their country’s sovereign desire to allow their citizens to practice their – to practice religious freedom.
Exchanges like this, and Pompeo’s frequent refrain that religious freedom is the “first liberty” (a clever phrase that leaves ambiguous whether he’s referring to the ordering of the First Amendment to the U.S. Constitution, an ideological preference, or both), leaves little doubt that he personally believes human rights should be placed into a hierarchy in contravention of international law.
Whether the Commission’s final conclusions will reinforce Pompeo’s religiously motivated worldview remains to be seen. Yet, as detailed by Huckerby and Knuckey among others, the commissioners’ previous public statements and inquiries during public meetings largely accord with Pompeo’s outlook.
If the Commission does indeed proceed to reject the core principle of the international human rights system—that all human rights are universal, indivisible, and interdependent ––it will, among other things, align the U.S. government with the position of repressive governments that seek to weaken the international human rights framework. That this outcome might be inadvertent is no consolation. And nowhere would it be more welcome than in China, which is, ironically, home to one of few governments that the Trump administration routinely criticizes on human rights grounds.
Beijing has long espoused a hierarchy of rights in which the right to development (and the related right to subsistence) are taken as “the primary basic human rights” which trump all others, particularly civil and political rights. In keeping with this approach, the Chinese government has aggressively promoted its view, at the UN and beyond, that the protection and promotion of human rights depends on each country’s unique cultural, economic, and historical conditions – as defined, of course, by each government. Indeed, just last month at the UN Human Rights Council, while defending the PRC’s mass detention and enslaved labor of Uyghurs and other Turkic Muslim minorities in Xinjiang, a Ministry of Foreign Affairs official stated: “the protection of human rights must adhere to a development path that suits a country’s own conditions.”
China calls its path “human rights with Chinese characteristics” and encourages other countries to find their own human rights path. What’s more, the PRC has framed its development-trumps-all human rights path as part and parcel of Xi Jinping’s Belt and Road Initiative and his “community of shared future for humanity.”
Given the Trump administration’s diplomatic devaluation and backsliding on support for democracy and human rights, China has found fertile ground to advance its cause in international affairs and the UN in particular. In 2018, the Chinese government worked closely with Moscow to defund the office of senior-level coordinators working to implement the UN Secretary General’s “Human Rights Up Front” initiative, which was established in the wake of UN inaction on war crimes committed by the Chinese-backed Sri Lankan government at the end of that country’s civil war. The Chinese have likewise succeeded in limiting human rights experts’ access to UN Security Council meetings, and in reducing funding for human rights experts within UN peacekeeping missions, among other actions.
The PRC’s cultural relativistic human rights policy has found many supporters in the Global South. The Chinese government has issued statements on behalf of over 130 developing countries, and successfully sponsored resolutions supporting its views on the right to development and theory of human rights. This vision undercuts the bedrock principles of the international human rights order that UN Member States (including China and the United States) agreed to in the 1993 Vienna Declaration and Programme of Action, which have been reaffirmed repeatedly in subsequent Human Rights Council documents.
While Secretary Pompeo may view this elevation of one right as complementary to U.S. government criticism of Beijing, in the long run it plays directly into the campaign being waged by illiberal governments globally.
As if answering Beijing’s call, the Commission on Unalienable Rights appears poised to fashion its own, self-styled “human rights with American characteristics,” which may well prioritize the right to religious freedom over other human rights. While Secretary Pompeo may view this elevation of one right as complementary to U.S. government criticism of Beijing, in the long run it plays directly into the campaign being waged by illiberal governments globally. As the Chinese government might say, such an outcome would be a “win-win.”
In the face of significant criticism from nearly the entirety of the human rights community, the Commission has provided no solid justification for what problem it exists to solve. Pompeo likes to claim, without evidence, that the world has become “confused about ‘rights.’” To be clear: there is no such confusion. To the contrary, the world is witnessing, in ever starker terms, what awaits when governments are not held to a common standard of behavior. The Commission on Unalienable Rights may be staffed with well-meaning, if ideologically-uniform, members striving to strengthen support for those rights they deem most important. In carrying out their project, however, they do a grave disservice to the cause they purport to support, and offer a boon to those who would gladly muzzle individual liberty—religious or otherwise.