(Editor’s Note: This is the second 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 1 examined its activities to date and reviewed key problematic views and assertions expressed by panel members and some of the witnesses it selected to testify.)
The Commission on Unalienable Rights set up by Secretary of State Mike Pompeo to advise him on “the role of human rights in American foreign policy” has canceled its final public hearing due to the coronavirus pandemic and is now drafting its final report. While the public still has an opportunity to submit views to the body, the evidence to date suggests the commission will produce a report for Pompeo that will parrot his conservative agenda. Just last week, Pompeo gave a speech to conservative pastors in which he assured his audience that the commission would help advance their shared agenda.
The commission was heavily critiqued when it was set up in 2019, because it had such a clear anti-rights agenda and many of its appointed members had long expressed anti-rights views on women’s, LGBTI, and socio-economic issues. In our previous post, we detailed the public hearings held by the commission in 2019 and early this year, and the troubling themes that have emerged. Drawing on monitoring of every hearing by the Duke International Human Rights Clinic, we explained some of the key problematic views expressed in those hearings. They include a general skepticism toward international human rights, that there are too many rights, that rights protections should be rolled back, that there is a hierarchy among rights, and that religious freedom is one of the most important rights, if not the most important.
Here we discuss further why these themes emerging in the commission’s work are so wrong and so harmful from a human rights perspective.
- The problems begin with the commission’s narrow and regressive approach to defining human rights. Rather than explicitly requiring the commission to use existing and well-tested international law (including the treaties that the United States has long chosen to embrace), the commission’s chartercalls for it to rely on the Universal Declaration of Human Rights (UDHR), as well as U.S. “founding principles” of unalienable rights. The UDHR is important, but it is a non-binding instrument. It sets out rights in general terms, and does not provide the kind of more detailed blueprint for their realization that has come with later human rights treaties. And it drafts rights protections differently than subsequent instruments. For example, it doesn’t attach limitation clauses to specific rights, even though it has a catch-all in its article 30 that makes it clear that the UDHR cannot be used to undermine “any of the rights and freedoms” in the document, including equality. Over subsequent decades, an elaborate binding international human rights law framework has been developed that among other things, aids in interpreting the UDHR for contemporary circumstances so that it is both effective and relevant. The U.S. government has ratified three and signed four of the nine core human rights treaties that were adopted subsequent to the UDHR, but the commission’s hearings have barely referenced these foundational laws, created and agreed by most governments the world over. Instead, on at least one occasion, commissioners have actually ignored these binding instruments to go back to the UDHR when it suits their conservative and anti-LGBT equality and anti-abortion agendas. For example, in one notable exchange, Katrina Lantos Swett (president of the Tom Lantos Foundation for Human Rights and Justice) confused an invited expert by reading out the UDHR article 18 guarantee of religious freedom to argue that it is a right without limits, rather than the International Covenant on Civil and Political Right’s (ICCPR) article 18 guarantee which clarifies that the freedom can be limited where necessary to ensure respect for the rights of others.
- This downplaying of the importance of modern international human rights law risks sidelining all of the benefits that have come with the post-1948 human rights system. That includes the interpretive guidance of modern human rights institutions, the growing acceptance that “sovereignty” is not an excuse for violating rights, and the elaboration of more detailed protections for a range of marginalized groups that were not, and could not have been, fully contemplated in 1948. The commission chair, Harvard Law Professor Mary Ann Glendon, herself has noted during the hearings that “there can never be a closed catalogue of human rights because times and circumstances change.” Yet, the commission seems poised to lock itself into an interpretive effort to read together “founding principles” (themselves profoundly exclusionary in terms of gender and racial equality) with a non-treaty human rights instrument, rather than the 70-plus years of norms that have come after it. This risks short-circuiting what should be an evolutionary approach to human rights norms that sees human rights as a living movement that evolves to meet new circumstances and to ensure that all peoples’ rights are protected.
- As such, there is a real risk that the commission will reject what it may inaccurately call “new” rights. This would be profoundly misguided. In many instances, what some commission experts and members — as well as Pompeo, in setting up the commission — call rights proliferation does not actually refer to “new” rights being created. Rather, it is previously-excluded groups (e.g., women, LGBTI individuals) claiming and being guaranteed in law the protections of existing rights. It is also critical that human rights evolve to ensure that gaps within existing human rights law are filled, so that the law’s protections extend to all of us and also develop to meet new challenges. Dismissing these “new” rights as instead being “political” issues or “special” interests shortchanges important protections. And focusing on how long a right has been expressed in a written document as the criteria for its validity risks baking into law biases and discrimination, and overlooking that many currently-recognized rights (such as racial equality) were in the past not agreed to by majorities, including in the United States.
- The corollary of the move against so-called “new” rights is that the commission seems poised to erroneously elevate some rights, such as the right to religious freedom, at the expense of others. For example, commission members have defined religious freedom as a right without limits (e.g., Lantos Swett, as noted above) and posited conflicts between religious freedom and women’s rights that they think should be resolved in favor of shutting down women’s access to abortion. According to Commissioner Peter Berkowitz of the State Department and Stanford University’s Hoover Institution, “abortion is a hard question because it presents a clash of rights between an unborn child and women’s rights . . . it is about the right of women versus the right of the most vulnerable among us.” Lantos Swett, too, framed the “conflict” as follows, in a comment related to abortion: “A doctor in a rural area would have to commit a ‘grave moral crime’ or else have to leave their profession versus a woman who has to travel hundreds of miles and be inconvenienced.” However, as a recent United Nations report makes clear, religious beliefs can never be used to justify violations against women, girls, or LGBTI people. And while religious freedom is an important right, there is no basis in international law for its elevation above other rights. As with all human rights, it is indivisible and interdependent with others.
- The commission’s final report to Pompeo may also try to create additional hierarchies of rights, viewing some as “core” and others as “ad hoc.” Ahead of the commission, Pompeo contemplated elevating civil and political rights on the one hand, over economic and social rights on the other. Yet this ignores that the latter, including rights to health and education, are essential basic needs, firmly part of the core human rights treaties, and that they are in the UDHR itself and are intertwined with and undergird the enjoyment of civil and political rights, as the current pandemic so clearly highlights. So, too, is it problematic to rely on the list of non-derogable rights, i.e., rights that cannot be suspended, in ICCPR Article 4(1) as a way to create a hierarchy of rights, as Commissioner and conservative Harvard University sociology lecturer Jacqueline Rivers has seemed to suggest. Instead, the body in charge of implementing that treaty has confirmed that the fact that some rights cannot be suspended in times of public emergency does not mean that other rights derogated from “at will.”
- The above concerns directly another issue with the commission’s work to date: a tendency to ignore the widely-accepted rules of interpretation that guide the implementation of human rights instruments. Rights can certainly conflict in practice, but there are tools to deal with conflicts (e.g., proportionality analysis) that do not resort to creating hierarchies between rights or flat-out denial of protections to marginalized groups. While Glendon has stated in the hearings that “sometimes rights seem to be in conflict, but it is just tension that can be resolved. There are ways to work those out,” some of the ways in which commissioners are proposing to resolve tensions are troubling. For example, for Lantos Swett, the purported conflict she identified between women seeking abortion and the doctor who doesn’t want to provide it can be decided not by binding international human rights law but by public opinion: “If you did a ‘man on the street interview’ what would we find?” she queried. We share the sentiment expressed during testimony by Human Rights Watch Executive Director Kenneth Roth that members of the commission seem to simply not like how international human rights law resolves these issues. The post-1948 human right system’s recognition of reproductive rights is something that some on the commission are likely seeking to have its report ignore.
- A reflexive and parochial skepticism of international human rights law and institutions and NGOs animated the creation of the commission, and has been on display during the hearings. For example, commissioner member Berkowitz defended the U.S. government’s controversial pullback from international human rights institutions; he specifically defended the U.S. withdrawal from the U.N. Human Rights Council. And the commission has provided a venue for individuals such as Thor Halvorssen to critique large human rights NGOs and the United Nations in ways that are well-recognized as typical of the conservative populist playbook practiced around the world. There are important debates to be had about what has gone wrong — and right — in the modern system of human rights. But none of the scholarly and empirical studies on these topics has actually been considered by the commission in public session.
The commission ostensibly was set up to re-examine human rights. Many in the human rights community grapple daily with how to improve the human rights field, and often engage in searching examination and critique of international institutions, laws, history, and organizations. And a closer look at the role of human rights in U.S. foreign policy is clearly long overdue — human rights have often been used by the United States in a hypocritical, self-serving manner.
But how these questions are approached and who is empowered to do so matter. An honest critical examination of human rights would be welcome, but this commission was set up by Pompeo in a manner that strongly suggested he wanted to use it to roll back the scope and content of human rights protections in line with his own unabashedly-conservative agenda. Pompeo stacked the commission with people who for the most part shared his views, and he set out its mandate to restrict its use of modern international human rights law. The commission’s hearings have created a platform for a number of anti-rights, regressive views and with little room to hear from those actually impacted by how the U.S. government enacts human rights in its foreign policy.
Within the coming months, there is a narrow window of opportunity for the commission to correct course by taking into account the submissions of members of the public who are just as concerned about the role of human rights in U.S. foreign policy, yet have different visions than Pompeo on how best to advance rights. We hope the panel will take this opportunity to widen its evidence base with those submissions and use its report to truly examine how the U.S. government can advance rather than undermine equal rights for all.