Reclaiming Human Rights from the Pompeo Commission – Part 1

(Editor’s note: This is the first of a two-part series on the effect of Secretary of State Mike Pompeo’s Commission on Unalienable Rights and how it should be viewed going forward. Part 2 discusses six critically important omissions in the panel’s explication of the Universal Declaration of Human Rights.)

When a future secretary of state takes office, how should they assess the report of Mike Pompeo’s “Commission on Unalienable Rights”? Secretary Pompeo set up the commission in July 2019, giving it a mandate to provide advice on human rights “grounded in our nation’s founding principles and the 1948 Universal Declaration of Human Rights.” A year later, the commission issued its draft report in the midst of the COVID-19 pandemic. After a very brief comment period, the commission finalized its report with hardly any changes. It already has been sent to U.S. embassies and translated into multiple languages for wide distribution. Pompeo plans to highlight it at an event on the “sidelines” of the United Nations General Assembly meetings this week.

The commission has been a lightning rod for controversy from the start. Human rights organizations and experts raised deep alarm about its composition, processes,  mandate, and intentions. Its report has galvanized discussion and wide-ranging critiques from human rights advocates, religious leaders, scholars, activists, and many others about fundamentally important questions, most notably: Should U.S. foreign policy on human rights be grounded in the Pompeo Commission’s interpretation of U.S. founding principles and its specific approach toward the 1948 Universal Declaration of Human Rights? What are the consequences of the commission’s relative neglect of subsequent human rights treaty law and its diagnosis of the main challenges to better realizing human rights?

The answers to these questions have profound implications for human beings struggling for their rights today. Whether in the United States or around the world, people striving for dignity and equality find power and promise in invoking their human rights, even in the face of enormous obstacles.

Yet the Pompeo Commission fails to offer a promising approach for guiding U.S. foreign policy on human rights for two main reasons. First, the commission offers a deeply problematic diagnosis of the major challenges to human rights today, as will be discussed below. Second, the commission offers a solution anchored in an overly restrictive methodology and narrow interpretation of founding ideals and the principles of the Universal Declaration. The commission’s restrictive approach undermines more forward-looking possibilities to draw upon U.S. founding ideals and the principles of the Universal Declaration — and on subsequent law — to advance the dignity and equal rights of human beings alive and advocating for their rights today.

To be fair, despite its limitations, the commission’s report offers some valuable and important themes that are worthy of wider public discussion and deeper analysis. These include its advocacy of a central role for human rights in U.S. foreign policy; its emphasis on the importance of human rights at home for  credible U.S. advocacy of human rights abroad; its theme of “pride” and “humility” in acknowledging both the gaps between U.S.  ideals and the realities of our history and the need for constant struggle to better realize those ideals; and its recognition of the “indivisibility” and significance of the Universal Declaration’s inclusion of a diverse set of human rights grounded in human dignity. These basic themes are valuable and warrant further and more forthright discussion, albeit beyond the narrow ambit of the report.

The commission’s diagnostic and prescriptive flaws and its selective treatment of America’s founding principles will be my primary focus here. In a second post, I examine the limitations of the commission’s account and approach to the Universal Declaration, emphasizing the need to reclaim that document and its legacy from the Pompeo Commission.

The Commission’s Problematic Diagnosis

Why is the commission’s diagnosis off track? Its report begins with a fundamental premise — that the post-World War II “human rights project” is in “crisis.”  In Pompeo’s words, the “vital 20th century human rights project has come unmoored” and “needs a re-grounding.” To be sure, numerous challenges to realizing human rights do exist today – including the rise of autocratic regimes that systematically repress human freedom. But the commission offers a predominant, overarching narrative of “crisis” that seems to center especially on the diverse and growing number of people who are actively advocating for their human rights today.

According to the commission, advocates are “confused” about the nature and scope of human rights and rights claims are “proliferating” today at such an alarming rate that prospects for meaningfully realizing fundamental human rights are being deeply and egregiously undermined. “Confusion” abounds about fundamental rights versus “personal priorities.” In other words, one of the biggest threats to human rights, in the Pompeo Commission’s view, seems to be that people increasingly are claiming them and pressing for their enforcement.

This strange diagnosis is starkly out of touch with the current moment. People in the United States and around the world are not “confused” as they mobilize to assert their human rights and demand respect for their dignity and equality.

Examples are all around us. George Floyd’s killing in Minneapolis catalyzed protests and advocacy not only in the streets of America but throughout the world, in an outpouring against racial injustice and a common cry for human dignity. In Hong Kong,  Belarus, Venezuela, and many other countries, people struggle daily for freedom in the face of repression. Victims of atrocity crimes in Sudan, Syria, Myanmar and many other places persistently seek meaningful justice. People around the world want effective protection against the devastating and differential effects of the COVID-19 pandemic. Climate change’s increasing impacts on human rights galvanize advocates, including young people around the world.

Women and girls struggle for interconnected rights – against violence and child marriage, for education and for reproductive rights, for equal employment opportunity, for greater political participation. LGBTQ+ persons battle discrimination and violence and strive for equal rights. In these struggles – and those of so many other human beings seeking protection for their inherent dignity and equal rights – human rights law provides a framework that can help protect and empower.

Yet the Pompeo Commission report asserts there is a “decline of human rights culture” and “waning enthusiasm for human rights” (using passive voice). But if the commission had focused more on ordinary human beings and advocates on the ground in communities across the United States and around the world today — they would see that just the opposite is true. Indeed, where in the Pompeo report’s narrative do we even hear about the wide array of rights defenders and rights advocates working on the ground today? They are hardly mentioned once the commission presents its history of the U.S. civil rights movement of the 1960s. Or, in the case of women, they barely appear at all once the suffragists achieved the right to vote by constitutional amendment in 1920 – 100 years ago!

Instead, the report focuses its attention and criticism on human rights institutions and so-called “elites.” The report contends, without offering empirical support or citation, that increasing rights has not led to greater justice. But a growing body of human rights scholarship identifies numerous ways in which human rights treaties, enforcement mechanisms, and advocacy strategies are making a meaningful difference to the rights of people on the ground.

To be sure, many areas for needed improvement in human rights institutions clearly exist.  But the Pompeo Commission report is more inclined to offer broad-brush critiques than nuanced evidence-based analysis of different human rights institutions, mechanisms, and strategies. Meanwhile, ordinary people and civil society organizations around the world advocating for their rights are struggling to figure out how best to use those tools – law and institutions, imperfect though they might be to advance human rights on the ground. Yet the commission consistently neglects to focus on human rights advocates on the front lines – in small places – their voices, their empowerment, and how human rights law and mechanisms have been empowering and effective for them!

The Commission’s Limiting Prescription

Where does the commission’s prescription fall short? It offers up a solution that is anchored   in an overly restrictive methodology and approach. After encouraging readers to look back to the founding principles of our nation and to the 1948 Universal Declaration of Human Rights, the report advances a narrow interpretation of those principles and a form of originalist thinking that elevates the purported understandings in 1776 and 1948 (and a selective spin on those understandings at that) above the developing law, jurisprudence, and understandings of those principles since that time. Even on its own terms, the commission offers a selective and incomplete characterization of the ostensible “original understanding.”

We must not forget that the Universal Declaration – to which the United States made such an important contribution – was designed to be the very beginning of the development of human rights law in the post-World War II period. It was the opening, the gateway, the foundation for what was to come. Instead, the commission treats it more like a litmus test against which to measure and limit future and evolving human rights claims and aspirations.

There certainly is value in taking a careful, fresh look at U.S. human rights policy and the principles that should inform and guide it. Just as the world was on fire during World War II and its aftermath — giving birth to the Universal Declaration — so too is the world on fire today, as I noted earlier.  The human rights framework growing out of the Universal Declaration and subsequent efforts to build upon it have much to offer in taking on both new and enduring challenges effectively. Protecting and realizing human rights at home – and America’s role in advancing human rights abroad – should be a central issue on the presidential agenda and for wide public discussion.

But a richer narrative is clearly needed. Additional ideas and voices need to be more fully included. This is especially true regarding the commission’s discussion of our founding ideals and our nation’s continuing struggle to more fully realize those ideals.

Moving Beyond the Commission’s Framing to a Genuine Discussion?   

The Pompeo Commission asserts that the founders elevated property rights and religious freedom above other “unalienable rights.” It does so without offering adequate support or full discussion, even though the text of the Declaration of Independence itself refers explicitly to “Life, Liberty, and the Pursuit of Happiness” as among the “unalienable rights.”  The commission gives less attention to freedom of conscience more broadly. Liberty is highlighted throughout the report, but the commission’s discussion of equality – or equal rights, which are essential to meaningful liberty for all people – is less robust.

The commission rightly stresses the gap between aspiration and reality in the continuing struggle to realize the promise of the Declaration of Independence and the Constitution’s Bill of Rights. The Constitution has required multiple vital amendments in our nation’s long, ongoing struggle for liberty, equality, and full participation by African Americans, women, and so many others. The commission focuses, as it should, on the original sin of slavery, the Civil War and Reconstruction, and the efforts of Martin Luther King Jr. and other civil rights leaders to address the continuing legacy and reality of racial discrimination and inequality. Yet even here, the commission’s originalist  methodology gives short shrift to the 14th Amendment’s guarantee of equal protection and the subsequent jurisprudence and ongoing struggle to make equal protection a reality for African Americans and for so many others.

The commission’s relative neglect of the 14th Amendment also has troubling consequences for women. Indeed, women’s ongoing struggle for equality feels like an afterthought in the commission’s narrative, which offers a curiously sanitized version of women’s continuing fight for equal rights. The commission understandably gives considerable attention to the battle for women’s suffrage, culminating in the constitutional right of women to vote affirmed in the 19th Amendment 144 years after the Declaration of Independence. But that was in 1920! Virtually nothing more about women’s continuing struggle for equality is even included in the commission’s narrative.

The commission never discusses the 14th Amendment’s important role – thanks to brilliant lawyers like the late Ruth Bader Ginsburg — in the ongoing struggle to ensure equal rights for women. Nowhere does the commission address women’s constitutionally protected liberty to make fundamental decisions over their own bodies – decisions crucial to women’s equality and affirmed by the U.S. Supreme Court in Planned Parenthood v. Casey. Furthermore, nowhere does the commission discuss the constitutionally protected liberty of people to marry whom they love, affirmed in Obergefell v. Hodges.

Instead, in passing, the commission refers to these constitutionally protected rights simply as “divisive social and political controversies.” Equal pay for equal work likewise is labelled “a social policy” by the commission. In short, the commission’s selective narrative of the struggle for liberty and equality overlooks crucial milestones in our constitutional history and the rights of the very human beings who were “created equal.”

All of this deeply undercuts the commission’s stated aim of encouraging a full and genuine discussion about human rights. Instead, its report displays an interpretative sneakiness: an invocation of the “founding era” and “founding principles” in a highly selective and under-inclusive way. These issues raise legitimate questions about how genuine a conversation the commission’s work was designed to engender.

Our most inspiring leaders have always called us to be motivated, challenged, and inspired by our nation’s highest ideals – and to continue the struggle to make them real for all of us. Thomas Jefferson, the author of the Declaration of Independence, had greater confidence in each new generation of Americans to advance rights and principles articulated in our Constitution and its amendments. Moreover, our greatest leaders and patriots have invoked our ideals of liberty and equality to call us to a more inclusive vision of “We the People” and of “a more perfect Union.”

A far richer narrative of aspiration and struggle – of “pride and humility” – than that offered by the Pompeo Commission is needed. President Barak Obama, our first African American president (who is never even mentioned in the commission’s historical narrative) put it eloquently on the 50th anniversary of the march from Selma to Montgomery, Alabama, in March 2015:

“What greater expression of faith in the American experiment than this, what greater form of patriotism is there than the belief that America is not yet finished, that we are strong enough to be self-critical, that each successive generation can look upon our imperfections and decide that it is in our power to remake this nation to more closely align with our highest ideals?”

Or in the words of the late Justice Ginsburg: “Women’s rights are an essential part of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy.” Neither she nor her foundational contribution to advancing women’s equality appears in the commission’s selective narrative. Yet these amazing patriots have been central in our country’s long struggle to better realize our founding ideals.

Looking ahead, as these struggles for liberty and equal rights continue, it is essential that we restore a deep understanding of the pivotal role and significance of the Universal Declaration of Human Rights in this ongoing journey. That is the focus of my next post in this two-part series.

IMAGE: A monitor displays the words Commission on Unalienable Rights behind Secretary of State Mike Pompeo as he speaks during a news conference at the State Department in Washington,DC on July 15, 2020. (Photo by ANDREW HARNIK/POOL/AFP via Getty Images)

 

About the Author(s)

Jane Stromseth

Francis Cabell Brown Professor of International Law at Georgetown University. Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice at the U.S. Department of State (2013-2015).