5 Questions About the Commission on Unalienable Rights

Secretary of State Mike Pompeo is joined by Harvard law professor Mary Ann Glendon as he announces the formation of the U.S. State Department's Commission on Unalienable Rights on July 8, 2019.

Last week marked the first official meeting of the U.S. State Department’s new Commission on Unalienable Rights. The meeting was held in a State Department auditorium in front of a crowd of a few dozen U.S. officials and nongovernmental organization (NGO) representatives. The commission’s stated purpose is to provide “fresh thinking about human rights discourse,” and in an op-ed on the commission’s creation, Secretary of State Mike Pompeo said he hoped that it would “generate a serious debate about human rights.” Unfortunately, so far, the commission has created more questions than answers, as well as cause for alarm when it comes to protecting the rights of vulnerable communities. Before the commission delivers its final product—what Pompeo has described as a “tangible expression” of “fundamental human rights”—these issues must be addressed.

1. How and why was the commission created?

Pompeo created the commission in July, making it an advisory committee within the State Department’s policy planning division. The announced chair, Harvard Law School professor Mary Ann Glendon, is an anti-abortion advocate, and a previously considered chairman is well known for his anti-LGBTQ views. Although one State Department source stated that the commission “will not make any pronouncements” on abortion policy or marriage for same-sex couples, its members’ backgrounds and existing Trump administration policy raise serious doubts about this statement. Immediately after the commission was formed, respected nonpartisan rights groups expressed concerns about its necessity and composition.

Pompeo called the commission’s work “urgent,” and Glendon has cited China’s attempts to undermine the global consensus on human rights as a key example of its necessity.* She is right to be concerned. In recent years, China has increasingly used its financial and political sway to block criticism of its own rights record and reshape international consensus on human rights. China promotes a vision of human rights “with Chinese characteristics” that prioritizes national economic development over individual human rights. To achieve this vision, Chinese officials have openly questioned the universality of fundamental human rights—especially civil and political rights such as freedom of speecharguing that “human rights must and can only be promoted in light of specific national conditions” and that “there is no one-size-fits-all approach in human rights protection.”

However, the new U.S. commission doesn’t appear prepared to address Glendon’s stated concerns. Indeed, it seems to be taking a page straight from China’s playbook in questioning universal rights. In announcing the commission, Pompeo attempted to distinguish between “unalienable rights” and so-called “ad hoc rights granted by governments.” It is unclear how this attempt to redefine human rights is different than Chinese President Xi Jinping’s. Openly questioning what constitutes a fundamental human right does not help strengthen the consensus on human rights; instead, it contributes to a wrongheaded understanding that the definition of human rights is open for debate rather than settled by laws and norms.

2. What is wrong with the current U.S. approach to human rights?

When Pompeo announced the creation of the commission, he said he hoped that it would “ground our understanding of human rights in a manner that will both inform and better protect essential freedoms.” Similarly, Mary Ann Glendon claimed that the commission would “clear up confusion” about the language, terms, and concepts America uses in its human rights policy.* These statements suggest that there is something wrong with the current understanding of U.S. human rights policy.

Yet no human rights activists and organizations have supported such claims. More than 400 NGOs and former senior government officials from across the political spectrum recently signed a letter to Pompeo expressing concern about the commission and questioning its necessity, stating that “it is a fundamental tenet of human rights that all rights are universal and equal.” Moreover, they warned that the commission would waste taxpayer dollars and urged the secretary to instead “take action on the great many grave human rights issues facing the world today.” There is no evidence that the current U.S. understanding of what counts as an unalienable right is contributing to global confusion. Spending precious resources attempting to redefine and restrict human rights, rather than defending them during this critical time, threatens to damage the current U.S. approach to human rights. Even more importantly, it does absolutely nothing to address the disturbing human rights violations committed by this administration every day at the U.S.-Mexico border, where migrant and refugee families are held in appalling conditions.

3. Why do they need to restrict what counts as an unalienable human right?

The theme of the commission’s first meeting was built into Pompeo’s instructions to “ground our discussion of human rights in America’s founding principles.” Presentations focused on the origins of human rights in the nation’s founding and led to a discussion on the Founding Fathers’ vision for human rights. The only right that both presenters could agree was certainly unalienable was the right to freedom of conscience, which was understood to include freedom of religion and freedom of thought.*

This shouldn’t be surprising, given the history of U.S. independence. Yet it also represents a fairly narrow—and privileged—view of fundamental rights. The white, male, and often slave-owning representatives who wrote the founding U.S. documents would naturally be concerned with the rights most relevant to their own situations; many of them fled religious persecution in Europe. But this view ignores other fundamental rights that matter deeply to the majority of Americans today—women, African Americans, indigenous peoples, the LGBTQ community, people with disabilities, and other vulnerable groups.

Furthermore, there’s nothing about the current understanding of universal human rights—as established in the Universal Declaration of Human Rights and various treaties and conventions of which the United States is a party, and enshrined in U.S. law—that prevents the United States from defending more conventional rights, such as freedom of conscience, in addition to more newly recognized rights, such as the right to development. In an interview given the same day as the commission’s first meeting, Pompeo argued vaguely that “when other rights are added into the mix, when you use the word ‘right’ for something that is a mere preference, then there’s focus and attention and energy applied to preserving and protecting that thing called a right, and that comes almost necessarily at the expense of the fundamental rights.” Yet he cited no evidence or examples of this flawed zero-sum approach to defending rights. Under past administrations, the United States has continued to expand its understanding of the definition of human rights and has actively accepted and promoted the protection of newer rights, while also successfully promoting traditional civil political rights.

If the commission plans to argue that the defense of unalienable rights is damaged by advocating for other rights, it will have a hard time convincing anyone but authoritarian actors such as China. One can defend religious freedom, for example, while also standing up for rights that the administration refuses to consider as fundamental, such as women’s rights and LGBTQ rights or economic and cultural rights. Indeed, past U.S. administrations, from both sides of the aisle, have done so. For example, despite a problematic record on many human rights principles, the George W. Bush administration prioritized women’s rights in Afghanistan and established a landmark HIV/AIDS program—the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR)—that is considered a huge global health success case. Meanwhile, the Obama administration made historic strides toward expanding global rights for the LGBTQ community and more systematically supporting women and girls around the world.

4. What qualifies this commission to decide what counts as an unalienable human right?

If one accepts the premise that there is a need to restrict or redefine what counts as an unalienable human right, then that leaves one final question: Who gets to decide what is an unalienable right? Pompeo has appointed a group of 11 people to make this decision. Unfortunately, this group is not representative of the diverse U.S. population. Most of the commissioners come from professional backgrounds heavily grounded in religious freedom issues, with known opposition to LGBTQ and reproductive rights. Just three commissioners are women and only two are people of color. There is no apparent representation of the LGBTQ, immigrant, indigenous, or disabled communities. As studies show, groups that lack the diversity of the population they seek to represent often make flawed decisions.

The commission also excludes experts within the State Department who focus on human rights. As stated above, the commission is housed within the State Department’s policy planning staff; Peter Berkowitz, a policy planning official, is the commission’s executive secretary. Notably absent from the commission—and the first meeting—is the State Department’s Bureau of Democracy, Human Rights, and Labor (DRL). Commissioners claimed that DRL staff were included in initial discussions, but nonetheless, their lack of prominent representation at the meeting is a disappointing signal. The DRL bureau could provide valuable expertise—and a diversity of views—to the commission, but they need to be included in public meetings to do so. While it is not yet known how this committee will ultimately inform State Department policy, there is a risk that its narrow interpretation of rights could inform future U.S. decisions and DRL’s work.

Such a homogenous group of commissioners should not be entrusted to decide what counts as an unalienable human right. It is necessary to ask how this group can possibly consider the rights of vulnerable people who don’t currently have a seat at the table, such as those who are low income or disabled. It is also necessary to consider how this commission will reconcile its views with the work of DRL, which Congress has designated as the official body to work on U.S. human rights policy.

5. What comes next?

One of the meeting’s presenters, Wilfred McClay, urged the commission to come up with “as short of a list as possible” and to distinguish between “a small core of truly unalienable rights” and “putative rights.”* This would be a grave mistake. Human rights is not a zero-sum game whereby the protection of some rights means that others cannot be guaranteed. The commission members didn’t comment on his declaration, but they also didn’t reject it outright—a worrying signal for the future work of this group.

During the next meeting, on November 1, the commission members plan to study the evolution of human rights since the United States’ founding. There is a chance that all of the questions raised by the first meeting are resolved and that the commission determines that it actually can adopt a wide-ranging view of unalienable rights. However, given a first look at its work, that seems unlikely. It will be up to real human rights advocates to try to weigh in and influence the commission’s work—at future public meetings and through any opportunities online—in order to make sure that its decisions reflect a universal conception of human rights that protects everyone equally.

Alexandra Schmitt is a policy analyst for human rights, democracy, and development on the National Security and International Policy team at the Center for American Progress.

*Author’s note: The author attended the entire first public meeting of the Commission on Unalienable Rights on October 23, 2019, in which its members discussed the planned work of the commission and heard presentations from former Judge Michael McConnell and historian Wilfred M. McClay.