When US Secretary of State Mike Pompeo announced his Commission on Unalienable Rights, many observers worried, as I did, that he would use it to assert a dogmatic version of religious liberty to justify restrictions on reproductive freedom and the rights of LGBT people. We were right to worry. He has imposed his personal preferences while relying on arguments that pose a profound threat to all human rights as well.
The commission released a lengthy, glossy draft report for commentary in July. Within days, well before the period for public comment was completed, Pompeo was already touting it to State Department employees as a guide to their promotion of human rights. On Thursday, the commission issued its final report, virtually unchanged.
Behind its scholarly prose is a frontal assault on international human rights law. The report treats the Universal Declaration of Human Rights, adopted in 1948 and drafted with the help of Eleanor Roosevelt, as the heyday of the human rights movement.
That document is a nonbinding political declaration. It has been followed over the years by a series of legally binding treaties, each with an independent expert committee elected by treaty members to interpret its language and monitor compliance. The commission disparages this legal elucidation as a “proliferation” of rights, suggesting that there are now too many rights.
But that is a caricature of what actually happened. Initially, the Universal Declaration was codified in two legally binding covenants. One, on civil and political rights, contains provisions similar to the US Constitution, and the US government has ratified it. Another, on economic, social, and cultural rights, finds parallels in US law but not the US Constitution. The US government signed but never ratified it or fully embraced its rights.
After these foundational covenants, a handful of other treaties were adopted, spelling out, for instance, the meaning of the prohibition of torture or ways to protect women, racial minorities, children, and people with disabilities from discrimination. What Pompeo’s commission disparages as “proliferation” is in fact a process to ensure respect for the rights of people who traditionally have been marginalized or neglected.
When I testified before the commission, its members seemed less concerned with, say, the treaty on the rights of people with disabilities—it was modeled after the Americans with Disabilities Act—than with interpretations of human rights law to protect reproductive freedom and the rights of LGBT people. In the case of LGBT rights, for example, the Human Rights Committee—the official body for interpreting the civil and political rights covenant—has found that the prohibition of discrimination on the basis of sex includes discrimination based on sexual orientation, just as the US Supreme Court recently found that sex discrimination includes discrimination against LGBT people.
Still, the US government refuses to accept the Human Rights Committee’s ruling. It’s true that Washington doesn’t control the committee—it simply votes for its members along with other treaty ratifiers—but that is how international bodies work. It has no more reason to reject the committee’s conclusions than if I, a New York resident, were to object to US Supreme Court rulings because I get to vote for only two of the 100 senators who confirm Supreme Court justices.
The Pompeo commission’s discomfort with the Human Rights Committee is why it lionizes the nonbinding Universal Declaration. The declaration, as a statement of principles, has no accompanying interpretive body of law. That allows the US government to interpret its broad principles on its own, as if the covenants had never been adopted as its legally binding version.
How would Pompeo interpret the document? His commission suggests that a right should be recognized only if it is “widely” accepted by governments. That sounds superficially reasonable until one realizes that all of the core human rights treaties have been ratified by well over three-quarters of the world’s countries, even if the United States is often a laggard.
In fact, the commission seems to favor an a la carte approach to rights: The US government will pick the rights that it wants to observe, and others can do the same. That approach would be music to the ears of the world’s autocrats, and many will happily take the opportunity to trample on certain basic rights that Pompeo himself has rightly defended in places like Hong Kong.
Indeed, under this pick-and-choose approach, the Chinese government could ignore the rights of free speech and association, the Saudi monarchy could ignore the rights of women, the Indian government could ignore religious freedom, the Egyptian government could ignore the right to a fair trial, the Philippine government could ignore the right to life, and so on. Every abusive government would be happy, but the people of their countries would be left in the lurch.
The entire point of international human rights law is to bind governments even when they find it inconvenient. Yes, a government could turn its back on the entire international human rights system, but few do. Once a government joins a human rights treaty, it is legally bound by it and must abide by the authoritative guidance of its official interpreting committee.
To effectively abandon binding treaties for the Pompeo commission’s a la carte approach is to relegate human rights to the vagaries of government preferences. That’s not a system of human rights. It’s an excuse for repression, discrimination, and abuse.