Last week the Commission on Unalienable Rights issued its final report. The Commission was created by US Secretary of State Mike Pompeo in May 2019 to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”
It would, Pompeo said, undertake “one of the most profound reexaminations of the unalienable rights in the world since the 1948 Universal Declaration,” as well as “an informed review of the role of human rights in American foreign policy.” He argued that “America’s Founders defined unalienable rights as including ‘life, liberty, and the pursuit of happiness.’ They designed the Constitution to protect individual dignity and freedom. A moral foreign policy should be grounded in this conception of human rights.” Yet, Pompeo cautioned against creating new categories of rights, which he argued human rights advocates had pursued: “when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights”.
Unalienable and ad hoc
While Pompeo’s creation of the category of “ad hoc rights” itself raises questions, critics raised concerns from the outset that the commission would provide an intellectual argument for a narrow understanding of rights and for undermining rights – indeed, one of the first invited speakers called for protecting an “irreducible minimum” of human rights.
In particular, many feared that the commission would be used to undermine a wide swathe of gender-related rights including women’s rights, LGBT rights, and abortion rights, as well as undermine any claims to economic, social, and cultural rights by focusing on what have long been the mainstay in US understanding of rights – namely civil and political liberties. Indeed, a year ago more than 400 NGOs and individuals signed a letter to Secretary Pompeo highlighting many of these concerns.
Given the composition of the Commission – and the eventual conclusions – these fears were well-founded. The Commission was a rogue’s gallery of natural law enthusiasts, anti-abortion activists, and supporters of religious rights as the most important right. There was no balance on the Commission, and its conclusions seem to have been pre-ordained.
“Social experiments”
The Chair of the commission, Mary Ann Glendon, a former US ambassador to the Vatican, won an award for her anti-abortion activities and has argued that same-sex marriage is a “‘social experiment’” that impairs the rights of children. Other members of the commission share this anti-abortion, anti-LGBT agenda. Jacqueline Rivers identifies marriage as a “gift from God” and argues that “the divinely established order of marriage between one man and one woman is challenged.” And she decried the fact that Christians who stand up against marriage equality are “reviled,” thus tapping into the Christian Right’s fear of oppression.
Another commission member, neoconservative scholar Peter Berkowitz, denouncing the linking of “human rights to a secular and enlightened left-liberalism,” explicitly tied human rights to Christianity: “Grasping the old — and enduring — connection between human rights and Christianity could help curb excesses that these days damage both progressivism and conservatism.” Other commission members, including Rabbi Meir Soloveichik and conservative legal scholar Paolo Carozza, argue that some rights can be violated in the name of religious freedom – such as allowing religious institutions and businesses to opt out of offering contraception as part of their health insurance packages. Carozza has also identified third generation rights, such as the right to development or a healthy environment, as a target for the commission.
Judaeo-Christian roots and Americanist vision
From the start, there seemed to be a clear focus on highlighting the religious (and in particular Christian or Judeo-Christian) roots of a particular understanding of “natural” rights, which corresponded to a slimmed down version of first generation civil and political rights, with religious rights at the top.
The discussion in the open committee meetings indicated a strong focus on the part of the Commissioners on the US as the fount of human rights, going back to the founding of the country. There was little recognition that the US had played a significant role in developing the extensive international normative and institutional human rights framework. Rather, a constant theme was to put an American (or what Pompeo would call Americanist) stamp on human rights, and a feeling that the rest of the world had perverted the ideal notion of rights that the US had long ago given to the world.
Indeed, Pompeo said that the human rights community had “lost its bearings” as it created “new categories of rights” and was no longer “a moral compass.” The Commission could thus “help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions” – in an Americanist vision.
The attack on multilateral human rights institutions
This attempt to reexamine and constrain the concept of human rights comes in the context of an unprecedented attack on the international human rights regime by the Trump administration.
While support for international human rights norms and mechanisms has waxed and waned over the course of US administrations, and various administrations have instrumentalized human rights in US foreign policy, the core American exceptionalist consensus in the US foreign policy establishment has generally included rhetorical support for the broad human rights regime. Yet, the Trump administration’s assault on multilateral human rights institutions is qualitatively different. And the Commission helps to provide the intellectual (if severely flawed) justification for the administration’s actions.
The Trump administration’s assault on human rights is widespread and has the potential to both damage the multilateral human rights regime as well as alter the US’ identity as a human rights protecting and supporting country. The violations of human rights norms and attempts to undermine human rights institutions include:
As a result of these violations, international perceptions of the US have changed. David Kramer, a former assistant secretary of State for human rights in the George W. Bush administration (which had its own problems with human rights) says that “People advocating and fighting for democracy, human rights and freedom around the world are disillusioned by the U.S. government and don’t view the current administration as a true partner.” Pompeo has recently led resurgent criticisms of China (and Russia), and has, for example, criticized China for its treatment of the Uyghurs and for the new national security law in Hong Kong. While these criticisms are welcome, they must be seen in the wider context of geostrategic maneuverings rather than as a principled stance on human rights.
Meanwhile, in the wake of the George Floyd killing, the International Crisis Group, which regularly publishes warnings about instability and human rights violations in countries experiencing war and other violent conflict, took the unprecedented step of publishing a statement describing “unrest” in the country and calling on the Trump administration to stop using “incendiary rhetoric.” This is language that is usually reserved for countries that might be viewed as outlaws.
The Commission’s report confirms many of the fears highlighted above. It provides an historical (or perhaps ahistorical) and theoretical justification for focusing on a reduced set of rights which are compatible with a conservative religious and economic agenda. While many of the so-called “new rights” which are part of that agenda – including LGBT rights – are not explicitly targeted for downgrading to non-unalienable status (and given the prominence of the LGBT rights agenda, it is rather curious that this was not mentioned even once), the message is clear: there are a few core “unalienable” rights which are central to the American ideal – religious liberty, property rights, and rights related to democratic participation.
All other hard-won freedoms are contingent, subject to democratic processes. While there are serious debates to be had about the source and status of rights, this report does not make a meaningful contribution. Rather, it is a highly politicized document clearly intended to justify the Trump administration’s America First agenda with its nationalist and populist emphasis on US sovereignty and exceptionalism.
America First – what the report says
The report devotes the first 20 pages on a deep discussion of the role played by the US in developing what it calls “The Distinctive American Rights Tradition.” There is much talk of God, although the report is careful to include mention of “reason”. But the message is clear: “the very ideas of human nature, objective reason, and a creator God have come into disrepute among intellectuals.” This report is a retort to those “intellectuals.”
The report talks a lot about the Declaration of Independence from where the term “unalienable” comes from. There is no mention of the French Revolution or the Enlightenment which formed the background for the Declaration of Independence. It does mention “beautiful Biblical teachings,” as well as classical Rome and classical liberalism, but make no mistake – it was those plucky colonialists, informed by God, who came up with the idea of freedom for which the US is a “beacon of hope” today.
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Kurt Mills | Radio Free (2020-07-22T11:00:47+00:00) Justifying American exceptionalism: the Commission on Unalienable Rights undermines modern human rights. Retrieved from https://www.radiofree.org/2020/07/22/justifying-american-exceptionalism-the-commission-on-unalienable-rights-undermines-modern-human-rights/
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