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In an article for World Politics Review, CFR James H. Binger Senior Fellow in Global Governance and Director of the International Institutions and Global Governance Program Stewart M. Patrick examines the flaws in the draft report of the U.S. Commission on Unalienable Rights.
How can you square the doctrine of “America First” with the promotion of human rights? It’s a question that has bedeviled the Trump administration since it first took office. Secretary of State Mike Pompeo provided his own answer on July 16, when he unveiled the much-anticipated draft report of the U.S. Commission on Unalienable Rights.
In a strident and tendentious speech at the National Constitution Center in Philadelphia, Pompeo attacked the “proliferation” of “new rights” claims to cover an ever-expanding set of groups and issues, saying it was time to get back to basics. Henceforth, U.S. human rights policy should be grounded in the limited conception of rights outlined in America’s founding documents. Pompeo’s misguided effort to nationalize U.S. human rights policy, if successful, would undermine the cause of freedom, equality and justice both at home and abroad.
In Pompeo’s telling, the fundamental rights enunciated in the Declaration of Independence, which he characterized as “the most important statement of human rights ever written,” are under assault from within and without. He decried the societal upheavals that have convulsed America in the wake of George Floyd’s murder, as well as the New York Times’ 1619 Project, which places slavery at the heart of the nation’s founding, as an attack on the “very core of what it means to be an American, indeed the American way of life itself.” Equally pernicious are attempts by the global left to enunciate an ever-expanding set of rights and to embed them in multilateral bodies and treaties. “Many are worth defending, in light of our founding,” Pompeo conceded, before adding, “Others aren’t.”
In an effort to rein in this rights discourse, Pompeo in July 2019 appointed the Commission on Unalienable Rights, an 11-member body composed primarily of conservative legal scholars, academics and advocates. As its name suggests, its members had a back-to-the-future mandate. Like archaeologists, their role was to excavate beneath the accretion of rights established in recent decades, and unearth the fundamental rights established by the “natural law” tradition and America’s foundational texts.
The archaeologists found what they were looking for. The report identifies a distinctive American rights tradition focused on eliminating restrictions to human liberty, or what legal scholars call “negative rights” because they defend individuals from the encroachment of the state. These civil and political rights include freedom of assembly, the right to own property and—of outsized importance to the commissioners—freedom of religion. The report explains how the founder’s limited conception of rights subsequently inspired Abraham Lincoln’s crusade to preserve a nation conceived in liberty, as well as the struggles of civil rights leaders to obtain for Black Americans the individual liberties promised in the U.S. Constitution and Bill of Rights. In this Whiggish narrative, American history vindicates America’s founding ideals.
The report then addresses America’s post-World War II role as a global champion of human rights. The commissioners focus heavily on U.S. support for, and the enduring significance of, the 1948 Universal Declaration of Human Rights. On one level, this is understandable. An American, Eleanor Roosevelt, spearheaded the negotiations over the declaration, and one of Pompeo’s commissioners, Mary Ann Glendon, wrote the definitive account of her efforts. Moreover, as a nonbinding statement of principles, rather than a formal multilateral treaty, the declaration provides the sort of sovereign flexibility attractive to the United States.
On another level, the choice is curious. Many of the declaration’s 30 articles pertain to economic, social and cultural rights, as opposed to the civil and political rights dear to the hearts of the commissioners. These include so-called positive rights, such as the right to education, as well as “the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.” The commission tries to square this circle, arguing that while the rights enumerated in the declaration are “indivisible and interdependent and related,” some—namely, the negative rights—are more equal than others.
Such conservative skepticism toward positive rights helps explains the exceptionalism—indeed “exemptionalism”—that has long bedeviled U.S. aspirations to global human rights leadership. How much credibility does the United States actually have to lead on human rights when it rejects major multilateral treaties like the Convention on the Rights of the Child, the Convention Against All Forms of Discrimination Against Women, and the Convention on the Rights of Persons with Disabilities? Ignoring such complications, as well as the frequent U.S. support for dictators during the Cold War, the commission depicts U.S. human rights policy after 1945 as a triumph, one that hit its high watermark with the collapse of Soviet communism.
By contrast, the commission views the contemporary state of global human rights with alarm, for two reasons. First, the main authoritarian powers, China and Russia, are crushing dissent domestically, persecuting religious minorities—including the Uighurs— and undermining freedom in other nations. Second, progressive groups are seeking to transform mere “political preferences” into new human “rights,” while overriding the international legal principle of state consent.
The commission’s first worry is understandable, but by celebrating the “national” origins of U.S. human rights policy, the report ironically undercuts U.S. efforts to criticize authoritarian governments on the grounds that the rights they are violating are in fact universal. It suggests instead that human rights are, as many targets of America's human rights advocacy argue, culturally sensitive and context-specific, and should be applied in a manner that respects national sovereignty. In so doing, the commission has provided a gift to despotic regimes, which can be expected to justify crackdowns on fundamental freedoms by invoking their own specific national traditions and by articulating their own interpretation of the hierarchy of human rights.
The commission’s second anxiety is more worrisome, since it reflects a conservative desire to roll back recent progressive advances. “There is good reason to worry that the prodigious expansion of human rights has weakened rather than strengthened the claims of human rights and left the most disadvantaged more vulnerable,” the report claims, without a shred of evidence. “More rights do not always yield more justice.” This bald assertion should be deeply worrying to those seeking to consolidate their hard-won rights as inherent components of human dignity that ought to be universally recognized. Critics of the commission fear that its approach could dilute what fragile global protections exist for gender equality, including reproductive rights, as well as the rights of LGBTQ individuals.
The report’s most glaring flaw is its utter disconnect from the Trump administration’s hypocritical human rights policy. The rot starts at the top, in the president’s curious affinity for illiberal leaders ranging from Russia’s Vladimir Putin and China’s Xi Jinping, to Turkey’s Recep Tayyip Erdogan, Saudi Arabia’s Mohammed bin Salman, the Philippines’ Rodrigo Duterte and Brazil’s Jair Bolsonaro. The commission is also silent on the administration’s domestic outrages, including attacks on freedom of the press and assembly, two rights the commission claims to cherish, and the culture of corruption and impunity the president has cultivated.
It will be hard for the United States even to get “back to basics,” as Mike Pompeo would prefer, so long as the administration for which he works resembles a “gangster regime,” in the words of conservative columnist George Will. Resurrecting U.S. global leadership on human rights will await a new administration committed to those same rights at home.