Pompeo’s Critics Misrepresent the Commission on Unalienable Rights
The NGOs and activists criticizing the commission’s inaugural report are distorting its contents.
Human rights organizations went on a public relations blitz this summer as the U.S. State Department’s Commission on Unalienable Rights first released the draft, and then final version, of its report. These same groups have been vocal opponents of the commission— which I serve on as rapporteur—from the start, anointing themselves the only true guardians of human rights as soon as Secretary of State Mike Pompeo announced its formation last year. Now that the commission has produced something deliverable, nongovernmental organizations say they feel vindicated. Pulling no punches, Kenneth Roth, the executive director of Human Rights Watch, slammed the report in an Aug. 27 article in Foreign Policy as “a frontal assault on international human rights law.”
Roth is an influential figure in the world of human rights advocacy, so his statements carry weight. But, in this case, he and like-minded activists are victims of their own ideological blinders. By any objective measure, the only assault has been a misguided, rhetorical one on the part of those entities that, in virtually all domains save this one, advocate for anti-bullying and the free expression of unorthodox views. To see why their feigned outrage falls flat, it is necessary to consider how the commission report was written, why certain emphases are present, and what the text, on a close read, actually says.
The first misunderstanding concerns the role of Pompeo himself in authoring the report. According to Roth, Pompeo “has imposed his personal preferences” regarding which human rights are worthy of respect. But Pompeo has done no such thing: Although he created the commission, he played no role in drafting the report.
The commission was established under federal law as an independent advisory committee within the State Department, not as a mouthpiece for any person or political party. The first time Pompeo saw the report was after it had been written and adopted unanimously by its 11 commissioners. Counted among their ranks were three women and eight men; Republicans, Democrats, and independents; members of racial and ethnic minorities; and people identifying as Christian, Muslim, and Jewish, as well as several who are secular. Like any other person, the secretary of state is free to draw conclusions from the report—as he did in a highly publicized July 16 speech in Philadelphia. But when he does, he is speaking on behalf of the Trump administration, not as a spokesperson for the commission.
The second misunderstanding hinges on the role of nostalgia as an alleged operating principle. Critics have disdained the commission’s focus on the 1948 Universal Declaration of Human Rights. In their view, the commission “lionizes” that nonbinding document, which they see as an error. It is anachronistic, critics say, to see the declaration as the “heyday of the human rights movement,” since a whole corpus of legally enforceable human rights law followed from the declaration in the decades since it was adopted.
But the commission never downplayed later human rights treaties; rather, it in no uncertain terms affirmed their significance, stressing that the United States is bound by any treaties it ratifies. The report mentions several post-declaration covenants and states not only that their development is “welcome” but also that it “has achieved tangible results.” The detailed focus on the 1948 declaration was required by the commission charter, which was a call to get back to the basics. Since that charter tasked the group to ground its advice explicitly in the bedrock of human rights law, it is only natural that commissioners sought to adhere to their mandate.
The third concern relates to something Roth and others dismiss as a nonissue, namely that of rights proliferation. Putting aside all the bombast, the commission’s core point regarding proliferation was actually a simple and noncontroversial one: “More rights do not always yield more justice.” Any astute reader would note the careful and deliberate use of “always.”
This topic takes up less than two full pages of the nearly 60-page commission report, so, contrary to some accounts, it is not the singular focus of the document. Nonetheless, the report accurately describes a phenomenon that is easily verifiable: In 1948, the declaration contained a modest list of 30 articles; fast-forward to 2013, and the tally of international rights provisions reached anywhere from 676 to 1,377—so high that no one was quite sure of the total count.
In recent years, while diplomats and scholars have commented on the proliferation of rights in global health, they have also lamented United Nations declarations on the rights of peasants, the right to solidarity, and the right to peace—not because there is anything wrong with them in principle, but rather because, as the number of rights multiplies, the currency of rights becomes devalued. As one article in Human Rights Quarterly summarizes, “rights proliferation is a significant concern and is increasingly discussed within the human rights community.” Indeed, Roth appeared to admit as much when he testified before the commission earlier this year, saying that his organization occasionally has to turn down advocacy work on the grounds that not every social aim qualifies as a human right.
The fourth and final point of contention concerns interpretations of human rights treaties. NGOs like Human Rights Watch demand that the United States accept the determinations of entities like the U.N. Human Rights Committee—a body of independent experts that monitors the implementation of the International Covenant on Civil and Political Rights. Roth and others attempt to frame these institutions as the final arbiters of human rights law, something akin to the U.S. Supreme Court in a domestic legal context. But the analogy is imperfect: U.S. citizens elect officials who nominate and confirm justices for the nation’s highest court. International interpretive bodies are less directly accountable. And when the United States ratifies treaties, it does not cede interpretive authority to them; it routinely attaches “reservations” and “understandings” meant to ensure consistency between the U.S. legal system and whatever the international agreement happens to be.
Roth omits mention of black-letter international law: In almost all cases, treaty provisions explicitly refrain from endowing entities with binding interpretive authority. This makes intuitive sense. As the commission report states, “It would be a sad irony if the idea of human rights—which reflects the conviction that the positive laws of nations must be accountable to higher principles of justice—were reduced to whatever current treaties and institutions happen to say about it.”
Both Republican and Democratic administrations have sought to preserve U.S. authority to interpret human rights treaties, but Roth nonetheless singles out the commission and then issues a damning indictment, claiming that “[t]he commission seems to favor an a la carte approach to rights: The U.S. government will pick the rights that it wants to observe, and others can do the same.”
Once again, this accusation is inaccurate; the report specifically and strongly rejects a cherry-picking approach, asserting that “it defies the intent and structure of the UDHR to pick and choose among its rights according to preferences and ideological presuppositions while ignoring other fundamental rights.”
It is true that the commission cites the Vienna Declaration—a 1993 human rights instrument—which suggests that the universality and indivisibility of human rights do not mean uniformity in bringing them to life. But the commission, at the same time, was careful to stress that not every “claim of cultural specificity ought to be accepted as an excuse for violating human rights.” The point the commission made is that framing the issue as an either/or—either you stand for universal human rights, or you champion particular traditions—presents a false choice.
The commission’s work has started a valuable conversation about the role human rights play in foreign policy. For that conversation to continue constructively, however, it would be useful if critics took the time to read the full report and accurately represent its contents.