An Exercise in Doublespeak: Pompeo’s Flawed “Unalienable Rights” Commission

Secretary of State Mike Pompeo’s “Commission on Unalienable Rights”—introduced last year as a sweeping effort to redefine human rights and its role in U.S. foreign policy—released a draft of its major report earlier this month. The results are predictably harmful to human rights.

From its inception, the Commission was recognized by many as an exercise in doublespeak, designed to provide an intellectual foundation for rolling back human rights protections under the guise of advancing them. Following five public meetings this past year and a lawsuit challenging the effort, the Commission released a 60-page draft report on July 16, initiating a two-week public comment period. Approved unanimously by all 11 commissioners, the report confirms previously expressed concerns—including in our posts here and here—about what the body would recommend. Here we outline the top eight problems with the Commission’s report:

  1. The report rejects reproductive and LGBTQI+ rights: Rather than affirming women’s right to choose and marriage equality as protected human rights, the Commission ignores international human rights law and explicitly dismisses these rights as “divisive social and political controversies.” This conclusion does not reflect any serious examination of international law. It reflects the longstanding anti-abortion and anti-marriage equality views of the commissioners handpicked by Pompeo to advance his agenda. Pompeo’s mandate that the Commission focus on U.S. “founding principles” and the 1948 Universal Declaration of Human Rights (UDHR) in its work—instructions the Commission’s chair described as “terse”—also helped to support this anachronistic approach. Indeed, both international human rights law and U.S. domestic law have developed significantly since 1948 and the U.S. founding respectively, but the Commission did not engage with the modern laws that would not support its foregone conclusions.
  1. The report unduly elevates religious freedom and property rights above other rights: As we and others predicted, Pompeo’s commission furthers his agenda of centering religious freedom in U.S. foreign policy. At the report launch on July 16, Cardinal Timothy Dolan, Archbishop of New York, blessed Pompeo’s “noble” mission, repeating the Secretary of State’s own oft-stated belief that unalienable rights comefrom God. Celebrating what the Commission sees as the dominant role of “Protestant Christianity” and “Biblical teachings” in America’s founding and the American “national spirit,” the report finds that the “foremost” unalienable rights are religious liberty and property rights. As noted above—and as was predictable based on the views of some Commissioners and its hearings—with this embrace of religious freedom comes the erasure of women’s and LGBTQI+ rights. As such it is contrary to international law, which makes clear that all rights are equal and religious beliefs can never be used to justify violations of the rights of women, girls, or LGBTQI+ people.
  1. The report calls for rights’ hierarchies: While the report correctly acknowledges rights’ interdependence and that the 1948 UDHR “does not explicitly establish a hierarchy of rights,” it openly calls for hierarchies of rights based on U.S. national interests and traditions, including in religious freedom and anti-trafficking. Flouting decades of developments showing the equal value and interdependence of all rights, the Commission endorses hierarchies among civil and political rights (elevating religious freedom and property rights over others such as non-discrimination or the right to vote, for example) and between civil and political rights and economic, social, and cultural ones.
  1. The report limits human rights by undermining human rights treaties: The report’s table of contents reveals a feature strikingly odd to anyone with a basic understanding of human rights development since the 1960s. The report devotes many pages to the 1948 UDHR, but does not analyze the rights set out in the nine core human rights treaties developed over the last 70 years, of which the U.S. government has ratified three and signed four. Indeed, the only section of the report that examines the “positive law” of treaties questions their value and asks whether they should in fact be accepted as international legal obligations.While it may seem baffling that a report dedicated to examining human rights contains almost no analysis of binding human rights treaties, Pompeo has long made clear his intention to limit some rights and elevate others (such as religious freedom, as described above). His commission advances this goal by downplaying the rights protections set out in foundational treaties, including particularly the post-1948 recognition of reproductive and LGBTQI+ rights.
  1. The report rolls back existing rights protections and limits the evolution of future rights protection: Over time, the protective reach of human rights has evolved to ensure protections for marginalized groups and for rights not set out in the UDHR in 1948. The Commission rails against the so-called expansion of protections and its purported negative effects, although never provides actual evidence of any harms caused by so-called rights proliferation. Inspired by what the Commission sees as the UDHR’s “small set of rights,” the Commission creates a new set of strict criteria for recognizing “new” rights while recommending caution in their application. Here, treaties that bind the United States finally get a look, but stasis is still all but guaranteed by criteria that the right be “closely rooted” in the “explicit language” of the UDHR “as it was written and understood by the framers of that document.” Criteria also include whether a right is “widely recognized and accepted by the American people” or if there is “sovereign consent to the development,” which risk making rights subject to majoritarian whim and giving repressive governments continued license to block the development of norms under the cover of “sovereignty.”
  1. The report de-prioritizes economic, social, and cultural rights: International human rights law guarantees basic socioeconomic rights, including to housing, health, education, and work. These rights are equal to and interdependent with civil and political rights. The Commission rightly states that socioeconomic rights should be “taken seriously” in U.S. foreign policy. Yet in the same breath, the Commission perfunctorily concludes that it is “reasonable” for the United States to treat socioeconomic rights “differently” and that the United States should “emphasiz[e]” civil and political rights over socioeconomic ones. In so doing, the report advances a harmful and regressive view of rights that cuts against the protections of the UDHR itself and the core human rights treaties.
  1. The report pays mere lip service to pressing human rights issues: While the report devotes many pages to and offers a full-scale defense of religious freedom, other issues that Pompeo and the Commission say are important receive little attention. For example, in introducing the report, Pompeo stated that the United States is in a position to “help” women who suffer “the most human rights abuses.” Yet the report fails to devote any substantive attention to people experiencing harm because of their gender—or any other—identity. Perversely, the Commission seeks to take away women’s rights—dismissing abortion and affirmative action as “issues” not rights—and references the status of women only in the context of historical developments in the post-civil war era. Similarly, other challenges to human rights identified during the hearings and report’s launch—for example, at the launch the Commission chair singled out “threats to human freedom and dignity” that accompany technological advances such as “artificial intelligence, biotechnology, data collection, sophisticated surveillance techniques” —receive scant substantive attention in the report.
  1. The report sees the world and the United States’ role in it through the looking glass: The report rightly notes that the “credibility of U.S. advocacy for human rights abroad” depends on how much its own citizens enjoy rights domestically. Yet it is quick to identify the harms of other states such as China, Cuba, and Venezuela without turning rights analysis inward in any meaningful way. Instead, at the report launch and through his op eds, Pompeo shows that he prefers hagiography. For example, he rejected as “slander” the New York Times’ 1619 Project, an important effort to reckon with the role of slavery in the United States. So, too, is it difficult to see how the United States can lead through the “power of example” and “vigorously champion human rights in foreign policy,” when the report openly favors nativism when it comes to rights. For example, the report encourages nations to center their own sovereignty and not global norms in understanding their international human rights obligations. 

 

It is clear that the report tries to provide a foundation for a regressive, harmful approach to human rights and foreign policy. But does this report actually matter? Should those who genuinely care for human rights just ignore it? In some ways, it seems inconsequential and easy to dismiss. It was set up by a deeply abusive government, the commissioners were handpicked for their anti-rights views, and they were told to downplay binding human rights law in their deliberations. The report is far outside the mainstream of international human rights theory, law, and practice. It ignores actually existing international law. And its pro-religious freedom (for some) and anti-women and anti-LGBTQI+ agendas are clear. It reads, deceptively, like a human rights-oriented take on U.S. foreign policy from a post-World War II era of purported U.S. moral leadership, a period that has been romanticized far beyond its reality for many Americans or for individuals in the countries the United States engaged.

But the story doesn’t end there. It is clear that Pompeo intends to use the report to form part of the intellectual backbone of his personal policy agenda to undo decades of positive developments in human rights and to center religious freedom in U.S. foreign policy at the expense of other rights. And the Commission’s thin veneer as a body that engages the public through hearings and consultations risks its findings being seen as reflective of having the “support” of the American people, a criterion it has identified as part of determining whether a right should be recognized. There is a real risk that the report will be cited by anti-rights government officials in the United States and abroad to justify their rights-denying actions and policies. As such, the report, and the broader regressive agenda of which it is a part, provide a dangerous albeit instructive roadmap for Pompeo’s agenda with regards to human rights. For this reason, it should be taken seriously, and also warrants widespread rebuke.

Photo by BRENDAN SMIALOWSKI/POOL/AFP via Getty Images.

 

About the Author(s)

Aya Fujimura-Fanselow

Clinical Professor of Law (Teaching) and Supervising Attorney in the International Human Rights Clinic at Duke University School of Law. Follow her on Twitter (@AyaFanselow).

Jayne Huckerby

Clinical Professor of Law and the Director of the International Human Rights Clinic at Duke University School of Law. Follow her on Twitter (@jaynehuckerby).

Sarah Knuckey

Associate Clinical Professor of Law at Columbia Law School, Director of the Human Rights Clinic, Co-Director of the Human Rights Institute, Former Special Advisor to the UN Special Rapporteur on Extrajudicial Executions (2007-2016). Member of the editorial board of Just Security. Follow her on Twitter (@SarahKnuckey).