Rights groups renew concerns over US ‘Unalienable Rights’ panel

United States Secretary of State Mike Pompeo’s “Commission on Unalienable Rights” has been met with controversy since its launch last year.

Now, less than a month away from the expected release of its report on recommendations for the role of human rights in US foreign policy, rights groups are renewing their calls to end the commission, which they say has done little to allay fears that it will advise on a more limited understanding of human rights that emphasises freedom of religion over other rights, while de-emphasising the rights of marginalised groups.

According to its stated mission, posted on the official Federal Register in May of last year, the Commission on Unalienable Rights (notably using the “unalienable” spelling from the US Declaration of Independence and not the more common “inalienable” spelling used in the international community) will “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights”. 

Pompeo has said the panel, which will serve as an advisory board and “will not opine on policy”, will offer “one of the most profound re-examinations of the unalienable rights in the world since the 1948 Universal Declaration [of Human Rights]”.

However, more than eight months after the panel started holding public meetings, the directors of international human rights clinics at Duke and Columbia law schools, who have been monitoring and analysing the makeup, meetings, and stated justifications of the 11-member panel, put it bluntly. 

“The bottom line,” the directors, Jayne Huckerby and Sarah Knuckey, wrote in March on Just Security, an online forum on national security policy based out of New York University, “the commission is poised to adversely shape US foreign policy, dismay US allies, provide a playbook for other conservative governments looking to follow suit, and produce normative scaffolding for other, similarly conservative moves within the United States.”

The stated purpose

Huckerby, the director of the International Human Rights Clinic at Duke, told Al Jazeera that “the ideas of human rights being in crisis, or that human rights conflict, or that human rights can be co-opted, or that human rights require re-examination, are actually not that new, or even that controversial.”

She added: “The worry here is that these concerns are being used to roll back rights protection rather than to commit to best ensuring that everyone enjoys all rights equally.”

In a July 7, 2019, Wall Street Journal op-ed, Pompeo wrote that following the end of the Cold War, “many human-rights advocates turned their energy to new categories of rights”.

“These rights often sound noble and just. But when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights granted by governments,” he wrote. 

Pompeo said the so-called “proliferation” of these rights has been abused by governments. With more rights, there is also more likelihood those rights will conflict with each other, he said. 

“The commission’s work could also help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions,” he continued. “Many have embraced and even accelerated the proliferation of rights claims – and all but abandoned serious efforts to protect fundamental freedoms.”

However, Pompeo’s stated focus on the United Nations’s 1948 Universal Declaration of Human Rights, a “soft-law” treaty that does not have explicit binding legal force, as well as his focus on the philosophy of the US founders, “risks diminishing the subsequent core binding human rights treaties and modern human rights institutions that make it very clear that human rights are for everyone and go beyond civil and political rights to include economic, social, and cultural ones”, according to Huckerby. 

Those include nine core UN conventions, which are binding for countries that ratify them. They have formed the basis of most international human rights law and have corresponding committees that oversee their implementation and resolve conflicts between stated rights.

In the 70 years since the Universal Declaration of Human rights, those core agreements, of which the US has ratified three, signed four without ratifying, and withheld from signing or ratifying two, have come to further enshrine internationally the rights of marginalised groups, particularly for women, LGBT communities and the poor. 

Members of the commission

Beyond the stated purpose of the commission, human rights observers have also taken issue with the makeup of the panel.

Following the panel’s launch, a broad coalition of 251 NGOs, former government officials, and faith leaders, called for the coalition to disband, questioning in a July 2019 letter to Pompeo the apparent focus on religious freedom among the panel, highlighting that “almost all of the commission’s members have focused their professional lives and scholarship on questions of religious freedom, and some have sought to elevate it above other fundamental rights”.

Alexandra Schmitt, a policy analyst for the Center for American Progress, also noted in October that “just three commissioners are women” and most members were white. 

“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,” she wrote.

Huckerby and Knuckey, writing after the panel’s last public meeting to date, argued that many of the ideological concerns about the panel members have borne out.

They identified, analysing the commission’s framing and the panel’s comments during the public meetings, “a general scepticism toward international human rights, treaties, and institutions”, a perception “that there is or needs to be a ‘hierarchy’ among rights”, and a “belief that religious freedom is one of the most, if not the most, important human rights, and it can get lost when other rights are recognised”.

Legal Challenge

In March, the Democracy Forward group brought the myriad concerns from observers to court.

They filed a federal lawsuit in Manhattan on behalf of several rights organisations seeking to disband the panel for failing to meet requirements of the Federal Advisory Committee Act (FACA), which requires that a federal committee “be fairly balanced in its membership in terms of the points of view represented and the functions to be performed”.

The lawsuit further alleges the commission has been holding “closed-door meetings” that include efforts to “redefine human rights terminology and commitments”, in violation of FACA. 

In a joint news release, those groups, Robert F Kennedy Human Rights, the Center for Health and Gender Equity (CHANGE), the Council for Global Equality, and Global Justice Center, alleged the current panel is “stacked with members who have staked out positions hostile to LGBTQI and reproductive rights”, while sidelining “mainstream human rights groups” and career diplomats within the State Department. 

In a legal brief filed in support of the lawsuit on June 9, six more prominent international human rights groups, including Human Rights Watch, said the commission would harm their ability to “protect the interests of people at risk of human rights violations” and “interfere with foreign policy by undermining the commitments the United States has made through carefully negotiated treaties to uphold rights [the groups] exist to protect”.

Elected officials have also called for more oversight of the panel’s actions. 

Two ranking House Democrats separately on June 9 accused the State Department of not adequately responding to a Foreign Affairs Committee investigation of the commission launched last year. 

The representatives, Jamie Raskin and Joaquin Castro, in a letter to Pompeo, called on the department to provide documents to Congress and a briefing on the panel’s activities before moving ahead with its final report. 

“We are concerned that this report will undermine our nation’s ability to lead on critical issues of universal human rights, including reproductive freedom and protections for millions of people globally in the LGBTQ community,” they wrote. 

‘Natural Law’

While the State Department has repeatedly rebuffed such criticisms, some observers have argued that terms like “natural rights” and “natural law”, which appear in the mission statement, are a not-so coded reference to an anti-LGBT and anti-reproductive rights agenda. 

Eric Weitz, a distinguished professor of history at City College of New York and author of A World Divided: The Global Struggle for Human Rights in the age of the Nation States told Al Jazeera that the commission’s use of the terms relates to a “specifically Christian, specifically Catholic thinking on rights, as far back as St Thomas Aquinas in the Middle Ages”.

He added that, while Pompeo’s launch of the commission relates to a historical US reluctance towards agreements enshrining “economic and social rights”, which have been viewed as having “a kind of tinge of communism”, the new panel “goes farther … with a reassertion of an 18th century notion of natural rights, not so much rooted in secularism, but rooted in the Christian tradition”. 

Weitz also questioned the unilateral nature of the commission, which he described as “suspect”.

“Since 1946 We have had international bodies and regional bodies, like the (Inter-American Commission on Human Rights), like the European Convention on Human Rights and European Court on Human Rights,” he said. “Why is the United States doing this on its own, when we have so many international and regional conventions and institutions?”

‘Consistent with autocrats’

Critics have also charged that Pompeo’s commission is part of a larger reshaping of human rights under the administration of President Donald Trump. 

In 2018, the US withdrew from the UN Human Rights Council, a body that has been criticised for allowing seats to repeat human rights abusers, but on which, many argued, the US presence was important to prevent disproportionate influence from those countries. 

Keith Harper, the former US ambassador to the council and the last person to fill the role, told Al Jazeera Pompeo’s attempts to define the most fundamental human rights outside of international institutions risked politicising those rights, much like Pompeo has condemned other countries for doing. 

“It has a touch and feel more of what we would call the way human rights are cognised by the rights abusing states, like Russia and China,” Harper told Al Jazeera, “having a narrow view of these rights, and having basically exceptions to rights based on culture and religion and things of that nature.”

The administration’s approach, he added, “is far more, in my judgment, consistent with the autocrats, than with democracy”.