(Editor’s note: This is the second 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 1 discussed the commission’s diagnostic and prescriptive flaws and its selective treatment of America’s founding principles.)
The 1948 Universal Declaration of Human Rights (UDHR) – the founding document of the post-World War II human rights era – undoubtedly warrants a central place in any analysis of human rights. The Declaration proclaims universal rights to which all human beings are entitled. Its importance in providing a “common standard of achievement,” its influence on subsequent law, and its continuing inspirational power make it a vital foundation for human rights principles. Moreover, the chair of Secretary of State Mike Pompeo’s Commission on Unalienable Rights, Mary Ann Glendon, wrote an insightful book on the UDHR, from which we can all learn a great deal.
So not surprisingly, the commission focuses considerable attention on the UDHR in its report. The commission aimed to offer a “fresh reading” of the Declaration “that goes back to the original understanding of the UDHR.” Furthermore, the commission contends that the “explicit language” of the UDHR as “written and understood by the framers of that document and by the United States when approving it in 1948” should be a central benchmark for U.S. support for any “new claim” of human rights today.
Yet, ultimately, the commission’s approach to the UDHR ends up being one of the most problematic aspects of its report. The commission’s narrow, originalist stance is inconsistent with the framers’ clear understanding that the Declaration was only the beginning of the human rights project – a process that would include the development of treaties giving explicit legal force and protection to these rights over time. Indeed, if the framers of the UDHR agreed on anything, it was that the Declaration was the starting point, not the endpoint, of the struggle for human rights rooted in human dignity in the aftermath of WWII. Thus, the Pompeo Commission is acting contrary to the very intent it claims to honor when it effectively treats the UDHR as a document frozen in time, reifying it (as “understood” in 1948) as a benchmark from which to determine (and limit) the future contours of human rights.
Even on its own methodological terms, the commission leaves out vitally important points needed to more fully understand the UDHR and its continuing significance. I sketch out this critique below, emphasizing the need to reclaim the UDHR and its legacy from the Pompeo Commission.
To be fair, the commission thoughtfully highlights key aspects of the UDHR. These include the Declaration’s affirmation of inherent human dignity and equality — that “all human beings are born free and equal in dignity and rights” — as the universal foundation for the rights set forth in the Declaration. The commission also properly highlights the important contribution of Eleanor Roosevelt and the United States in negotiating this landmark achievement, and discusses (though briefly) the fact that diplomats from many different countries, cultures, and religious and philosophical traditions were able to agree to these foundational understandings and to the interconnected set of rights flowing from human dignity and its recognition and protection.
Nevertheless, the commission’s lengthy exegesis of the UDHR (almost half of its entire report) gives insufficient attention to some critically important points that provide a fuller understanding of the UDHR. These omissions are particularly consequential because of the commission’s heavy reliance on the Universal Declaration as a source of principles to guide U.S. foreign policy – and its appeal to the UDHR, as “understood by [its] framers” in 1948, as a touchstone for U.S. support for “new” human rights claims.
Six Glaring Omissions
In its explication of the UDHR, the commission actually undercuts its claim to be respecting the “original understanding” in a fully credible way. Six omissions are particularly notable.
First, the catalyzing context that gave rise to the UDHR is hardly mentioned. The dehumanization, affront to human dignity, and brutal murder of six million Jews during the Holocaust – and the murder and inhumane treatment of other human beings by the Nazi regime, including disabled persons, homosexuals, minorities, gypsies, and others viewed by the Nazis as less than fully human – was the crucial catalyst for the governments that came together to agree on the Universal Declaration of Human Rights.
These horrific realities infused the sense of purpose underlying the Declaration. Yet the word “Holocaust” appears nowhere in the commission’s report, nor does the overwhelming sense of violation and affront to human dignity that galvanized and brought people together from so many different religious and philosophical and cultural traditions at this critical historical moment. It’s as if the animating spirit of the UDHR is missing – the fundamental universal human cry for dignity that has enabled the UDHR to speak so powerfully, then and since, to human beings everywhere.
Second, the commission gives short shrift to the fundamental emphasis on equality and non-discrimination woven throughout the UDHR. Somehow in its more than 29 pages of analysis of the UDHR, the commission never even discusses Article 2 of the Declaration. That foundational article affirms that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status…” Only in passing does the commission mention Article 7 of the Declaration — its equal protection clause, which affirms that “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
Yet it is the UDHR’s powerful recognition of the equal worth and equal dignity of all human beings – and corresponding emphasis on non-discrimination — that animates the Declaration and continues to speak so powerfully ever since. This is especially clear in our current moment, as human beings struggle for dignity and equal rights in the face of a devastating pandemic and urgent human need, as they seek dignified work and economic security for themselves and their families, and as they struggle against racial injustice and other continuing forms of discrimination. The idea of equal human dignity and equal human worth is – to paraphrase McCulloch v. Maryland — so interwoven into the fabric of the UDHR that it cannot be “separated from it without rendering it into shreds.”
Third, the vital contribution of women from different countries in shaping the language and rights in the UDHR – and the crucial advances they achieved — is largely overlooked by the commission. Yes, to be sure, the commission highlights the central role of Eleanor Roosevelt, as it should, in shaping the UDHR. But thanks to the determined efforts of other female delegates – such as from India and Denmark — the Declaration has powerfully inclusive language that speaks to everyone: “All human beings…”; “Everyone…”; “No one…”; “All…” There are only a few exceptions where masculine pronouns are used instead.
Moreover, these determined female delegates successfully ensured that the fundamental emphasis on equality and non-discrimination throughout the UDHR also was reflected in specific provisions. These include Article 16, which affirms the right of men and women “of full age, without any limitation due to race, nationality or religion” to “marry and to found a family” and “equal rights as to marriage, during marriage and at its dissolution.” Article 23 affirms that “Everyone, without any discrimination, has the right to equal pay for equal work.” In contrast, the Pompeo Commission calls “equal pay for equal work” a “social policy.”
Not only did the powerful, inclusive language of the UDHR affirm that women, like all people, are entitled to the rights proclaimed, the Declaration speaks directly – with simplicity and clarity – to all human beings everywhere.
Fourth, missing from the Pompeo Commission report is a full or adequate discussion of why the UDHR’s drafters were so determined to include a diverse set of interrelated human rights. Yes, the Pompeo Commission acknowledges that the human rights included in the UDHR are “indivisible” – and says it is “important in principle to affirm the interdependence of all rights that pertain to human dignity.” But the commission’s discussion in this regard feels formalistic and limited – like repeating rhetoric.
The story is a far deeper one about why different, organically interconnected rights including physical security, civil and political rights, and economic and social rights together (not one category alone) are mutually reinforcing and together essential to human dignity. Reeling from the violence and devastation of WWII, and informed by Franklin Delano Roosevelt’s four freedoms (including “freedom from want”), the diplomats who negotiated the UDHR – men and women from many different countries and religious and philosophical traditions — agreed that human beings, by virtue of being human and in order to live a life of human dignity, were entitled not only to rights protecting personal security, , and to civil and political rights, but also to economic, social and cultural rights.
These latter rights include: a right to education, a right to work and to “just and favorable conditions of work,” and a right to “a standard of living adequate for the health and well-being” of oneself and one’s family, “including food, clothing, housing and medical care…” (Arts. 23, 25, 26). Rather than being a “small set of rights” (as the Pompeo Commission repeatedly puts it), the UDHR – if actually fulfilled – provides a robust and ambitious “common standard of achievement for all peoples and all nations” – aiming to secure “universal and effective recognition and observance” of all the interconnected rights and freedoms affirmed therein.
Fifth, and relatedly, the commission puts an extraordinarily narrow spin on economic and social rights and subordinates them to civil and political rights. To quote the commission: “Because a certain minimum standard of living is essential to the effective exercise of civil and political rights, America’s commitments under the UDHR accord with the nation’s constitutional tradition.” Again, the importance to human dignity of protecting these interrelated rights affirmed so clearly in the UDHR is glossed over: In the commission’s account, economic and social rights are framed narrowly as “legislative provisions for the vulnerable” – as “minimums” rather than as rights independently important to human dignity.
The commission characterizes the advancement of such rights through U.S. foreign policy primarily as charity and development assistance: “Where foreign policy is concerned, the United States, consistent with its dedication to individual freedom and human equality, has sought to promote the UDHR’s economic and social principles primarily through generous programs of economic assistance directed toward the world’s poorest, must vulnerable and most persecuted communities.”
One certainly can – and should — have a forthright discussion about various human rights and how best to realize them. The UDHR itself in Article 22 recognizes the importance of a country’s resources in realizing economic and social rights: “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
Building on this, over 170 countries that have joined the International Covenant on Economic, Social and Cultural Rights (ICESCR) – the follow-on treaty—have agreed to take concrete steps “to the maximum” of their “available resources” to progressively realize those rights “without discrimination of any kind.” In some countries and regional systems, economic and social rights – such as education, and health — are expressly affirmed in law and are subject to litigation in court. Yes, justiciability issues may arise, but there also are concrete examples of courts playing an important and constructive role in protecting such rights, such as the Constitutional Court of South Africa’s decision regarding access to antiretroviral drugs.
The United States has long been reticent about economic and social rights as human rights and has not ratified the ICESCR. But it is far better to discuss these issues in a direct and transparent way – however one ultimately comes out — rather than glossing over them or essentially defining such rights away as contrary to the U.S “constitutional tradition” as the Pompeo Commission report does.
Should the United States recognize health care as a human right? Particularly as we face the challenges and disparities of the COVID-19 pandemic, the importance of socio-economic rights to human dignity warrants a central discussion. Yet nowhere does the Pompeo Commission discuss President Jimmy Carter’s decision to sign the ICESCR and submit it to the Senate for ratification. Nor does the commission acknowledge Carter’s strong emphasis on the interconnectedness of human rights in his important speech on the 30th anniversary of the UDHR, or his secretary of state’s affirmation of the importance of economic and social rights. Instead, the commission’s report glosses over such important questions rather than acknowledging forks in the road where the United States did take a different path regarding these rights for a time — and indeed still could.
Sixth, and most consequentially, the Pompeo Commission largely overlooks the UDHR’s vital legal legacy: its impact on subsequent human rights law. In this domain, the UDHR served as the foundation for the two main international human rights treaties that together with the UDHR serve as the “International Bill of Rights”: the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party; and the ICESCR. Furthermore, the UDHR has informed provisions of many other international conventions, regional conventions, and has been incorporated into the Constitutions and laws of many countries.
The commission’s focus on the UDHR without adequate attention to its subsequent legal impact is a glaring inconsistency with the aims and understandings of the UDHR framers, including those from the United States. Throughout the drafting of the UDHR, many diplomats stressed the urgent need to complete the “International Bill of Rights” in treaty form and the vital role of government obligation in securing human rights. Many diplomats were deeply disappointed that this was not possible in 1948; but they clearly saw the UDHR as a vital first step in that process.
The commission’s explanation for its relative neglect of subsequent human rights treaties is simply inadequate. “It wasn’t in our mandate,” said the commission’s executive secretary at a public event on the report. Yet how can the commission reasonably contend that the UDHR should be a fundamental touchstone or reference point for evaluating “new” human rights without more fully acknowledging how the UDHR has already been the foundation for subsequent human rights treaties since 1948?
The United States itself has ratified significant treaties, including the ICCPR, that followed upon and elaborated — and have given legally binding force — to rights earlier affirmed in the UDHR. To be sure, the commission does not disparage human rights treaties to which the United States has agreed to be bound
But in its heavy emphasis on the UDHR – and its relative neglect of subsequent treaties — the commission seems to want to have it both ways. It offers a “pick and choose” approach that on the one hand emphasizes state consent, national sovereignty, and positive law. On the other hand, the commission regularly appeals to “unalienable rights” beyond positive law as it sees them, and it invokes its own particular stance on the “original understanding” of the UDHR as a limiting touchstone for “new rights.” The commission repeatedly characterizes rights to which it is less sympathetic as “contestable policy preferences” or “divisive policy issues,” and it seems to prefer a process of “bargaining” to a more transparent and forthright discussion of rights claims.
Furthermore, the commission treats U.S. policy toward ratification of various human rights treaties (and frequent reluctance to ratify) as an almost inevitable outgrowth of our constitutional tradition. But more frankness about choices made – and a deeper exploration of reasons and causes – are needed to understand why the United States has resisted ratification of many foundational human rights treaties such as the ICESCR, the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and others. Whether those choices should be reconsidered – and what the prospects for ratification might be – are important questions to address.
Why does human rights law since the UDHR play such a small role in the commission’s story? In the end, whether intentionally or not, the commission’s approach – its relative neglect of subsequent human rights law and its overly narrow understanding of the UDHR – seems to be either driven by — or at least highly correlated with — a very particular result. That result: namely, elevation of a specific conception of certain rights (property rights, religious freedom) at the expense of other rights (of women to have liberty over their own bodies, of LGBTQ+ persons) – and also the avoidance of a forthright discussion of whether, or not, the United States ought to give greater attention to socio-economic rights.
The commission’s restrictive approach has many unfortunate real-world implications. It constrains more forward-looking possibilities to draw upon our founding principles and the principles of the UDHR — and on subsequent constitutional and international human rights law – to advance the dignity and equal rights of human beings alive today struggling for their rights in the United States and around the world. It pays no attention to the increasing inequality in the United States and globally as a human rights issue with profound impacts on political and civil rights, social and economic rights, and human dignity.
All of this is especially regrettable in our current moment, when a fuller discussion of the UDHR’s empowering potential is so vitally needed — as I will elaborate in a future blog post. The UDHR’s inclusive focus on the dignity and equal worth of “everyone” — its emphasis on equality and non-discrimination, and its attention to the interrelated rights so important to human dignity – vividly illuminate crucial human rights issues and challenges of urgent importance today.
Human rights should indeed be central to U.S. foreign policy. Furthermore, as the commission argues, strengthening human rights at home is vital to serving as a credible example in advancing human rights abroad. But if the commission had offered a richer, more inclusive narrative – with greater candor and greater empathy toward all those struggling for their dignity and equal rights – it could have launched a more constructive and valuable discussion about America’ role in advancing human rights — and about what kind of example we want to be.