The problems with Mike Pompeo’s Commission of Unalienable Rights
“Unalienable Rights,” the formula stopped me the first time I read it, used as I was to the modern variant “inalienable.” It turns out, however, that “unalienable” is Jefferson’s precise wording in the Declaration of Independence. “Unalienable Rights” is also the title of a new commission named by Secretary of State Mike Pompeo to provide “an informal review of human rights in American foreign policy.”
It is hard to anticipate exactly what the commission will do. Mr. Pompeo told reporters the commission’s work would address principles, not policy. Actually, one of the most useful things the commission could do for this administration would be to offer a principled examination of its own exceedingly weak human rights policy, which treats many rights as alienable at the whim of the president.
Critics have argued that the commission is a way for the Trump Administration to begin to restrict access to abortion as a human right and to halt the advance of L.G.B.T. rights, but an anonymous State Department spokesperson avows the commission will take up neither issue. If the commission is intended neither to review U.S. human rights policy nor examine today’s debates over abortion and same-sex marriage, what, then, might it be doing?
One possibility is to re-make international human rights in the American mode, narrowing their scope to reflect an exceptionalist American view of human rights. This seems to be Mr. Pompeo’s intention. In a Wall Street Journal column announcing the commission on July 7, he expressed his hope that the review would hew more closely to the American founding documents, namely, the Declaration of Independence and the Bill of Rights.
If the commission is intended neither to review U.S. human rights policy nor examine today’s debates over abortion and same-sex marriage, what, then, might it be doing?
Secretary Pompeo’s review of unalienable rights represents a threat to two key dimensions of the modern human rights law: First, it threatens our acknowledgement of the historic development of rights over the centuries. We have come a long way since Magna Carta. Second, it puts the universality of rights, proclaimed by the Declaration of Independence and the French Declaration of the Rights of Man, at risk.
In the 18th century only men of property were perceived as full citizens. But for two and a half centuries individual nations and the world community have been expanding our commitments to human rights.
In the late 20th century the process accelerated, beginning with the Helsinki Accords in 1975, and continued with a series of U.N. treaties acknowledging rights for various groups as members of the one human family: racial minorities (1971), women (1979), children (1979), migrants (1986) and people with disabilities (2006). In addition, conventions prohibited torture (1984) and enforced disappearance (2006). Does Mr. Pompeo hope the United States will renege on these commitments?
Turning its back on International Human Rights Law would not be unprecedented for this administration, which has withdrawn or expressed its willingness to withdraw from several treaties, and flouted others. In his announcement, Mr. Pompeo cited socio-economic rights as one category of rights he did not find compatible with American values, noting that during the Cold War they were embraced by the Soviets.
After the adoption of the Universal Declaration of Human Rights in 1948, the United States did hold back from affirming socio-economic rights. While it signed the U.N. Protocol on Civil-Political Rights, which was a closer match to those rights we had in the American system, it took 30 more years before President Jimmy Carter signed the Protocol for Socio-Economic rights and included them in U.S. human rights policy. Shall we turn our backs on four decades of social progress?
Turning its back on International Human Rights Law would not be unprecedented for this administration.
We cannot turn our backs on the development of human rights. Our unfolding understanding, just like that of the founders, is a reasoned response, based on experience, aimed at upholding the dignity of human persons.
There may be mistakes and abuses in claiming and implementing rights that need correction, but the fallibility of our formulations and judgments argues for discernment of particular rights, not denial of development. We should be open to correction, re-consideration, admission of our personal and collective misconceptions, and, when we are wrong, ready to honor rights we had not previously acknowledged. Abuses must be corrected.
The second problematic suggestion in Mr. Pompeo’s announcement concerns the universality of human rights. While the secretary holds that all humans enjoy God-given rights, along with many conservative thinkers he has a decided preference for American over foreign interpretations of rights, including those established in international law. Out of “a decent respect for the opinions of mankind” a credible philosophy of human rights should show respect for international human rights law.
Indeed, the U.S. government is constitutionally obligated to hold to those international laws to which the United States is a signatory. For the founders, it was an elementary principle of government that treaties became part of domestic law. Unlike the current administration, they abided by the ancient legal maxim Pacta sunt servanda (“Treaties are to be honored.”)
While the American founding made a unique contribution to the history of that tradition, defining human rights in solely American terms denies the universality of human rights, a quality essential to their nature. Since human rights are universal rights, it is inevitable that Americans will learn from others about further ways in which human dignity will need to be protected and served.
Some critics object that Mr. Pompeo would like to replace the Anglo-American Natural Rights tradition, which underlay the U.S. founding documents, with a traditional Catholic Natural Law position. But the differences today relate to particular issues, like abortion, rather than to the theories as a whole or to philosophical differences between schools of the two traditions.
Since John XXIII’s “Pacem in terris” in 1963, moreover, Catholicism has reconciled with the Liberal rights tradition. While the two philosophies were in tension in “the long 19th century,” they are not so today. Any review emerging from the Commission on Unalienable Rights ought to recognize that development is part of the human rights tradition and that, since they are human rights, others besides Americans have and will contribute to that ongoing development.