The dramatic expansion of rights in the post-World War II era has resulted in much confusion about how to engage in discussion about the common good. In the first half of 2019, Secretary of State Mike Pompeo announced a Commission on Unalienable Rights, to identify the true rights to which the nation is committed, and which ought to be advanced in American foreign policy. On July 16, 2020, the Commission issued a draft report.
The term “unalienable” harks back to the Declaration of Independence’s term “inalienable rights,” and signals a return to the principles of the American founding. This was made clear in Pompeo’s announcement of the commission’s task of correcting human rights discourse where it has “departed from our nation’s founding principles of natural law and natural rights.”
Both the announcement and the draft report drew strong criticism. This is because of the mention of “natural law and natural rights.” immediately drew the opposition of the Left. The Left rejects natural law in favor of social engineering. The latter assumes that experts in a particular field, or perhaps ideologists with an overall vision for society, know better than the general public correct attitudes and behaviors for a good life, and should be able to regulate society to change beliefs, attitudes and behaviors. Natural law, on the other hand, attempts to understand a fixed human nature, and thus the morality fitting to it, from rational analysis of observed reality and the human condition.
The main issue in the conflict today is whether consensual sexual activity counts as a “right.” In the last half century, this has been pressed as a basic human right, in contrast to most religions and traditional societies from antiquity, which focus on purity as the key element in sexual relations.
As the article linked to in First Things notes, the Clinton Administration first began to incorporate “non-traditional issues” into American foreign policy, really treating consensual sexual activity, and even the things attendant to it, such as abortion and population control, as rights to be pressed on other societies in American foreign policy.
The draft report discusses extensively the Universal Declaration of Human Rights (UDHR). This is entirely reasonable, since in advancing human rights as a matter of foreign policy the State Department would reasonably rely on it rather than the U.S. Constitution to determine what universal rights are. The UDHR lists 30 human rights. Like the Declaration of Independence, it is not legally binding, but expresses abstract rights to which nations should aspire.
The UDHR mentions marriage (Article 16), not sexual license. But an added, and older, problem which exists even in the UDHR is the attempt to incorporate “economic and social” rights into the concept of human rights. As was noted in an article in 2018, the “natural rights” recognized by English common law were held to be found by “pure reason,” and consisted only of life, liberty, and property. They are thus “pre-political,” i.e., they exist whether any government recognizes them or not. The state might make, indeed, might feel constrained to make, laws recognizing rights beyond this, but they were not understood to be natural rights, but discretionary powers of the state.
After the horrors of World War II, there was a renewed emphasis on universal rights as a moral basis for law. Communist dictatorships (very reasonably) felt threatened by this. They successfully pressed for the inclusion of economic and social goals as “human rights,” so that the social objectives of the state would not be impeded by natural rights. Some, such as the right to “dignity and social protections” (Article 22), “rest and leisure” (Article 24), and “an adequate standard of living” (Article 25) are so vague they could be subject to widely varying interpretations.
But as the draft report notes, the U.N. and the Council of Europe have expanded the number of rights to a staggering 1,377 rights. Sorting out all these rights, when, as the draft report notes, they are held to be indivisible and interdependent, makes the very idea of human rights virtually meaningless to the ordinary person. Only a state authority – a judge or a bureaucrat – could figure them out, which will likely in the final analysis be done on his or her personal sense of what is right. These many rights are then seen, and will be seen by the public in due course, for what they are, policy prescriptions masquerading as rights to make them inarguable. As the draft report stated (p. 57):
The tendency to fight political battles with the vocabulary of human rights risks stifling the kind of robust discussion on which a vibrant democracy depends. The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights.
An added problem at the U.N. is the tendency of its bureaucracy to claim new rights not in the UDHR or binding treaties, and then press these as binding obligations in international law. This is most notable in the case of abortion and LGBT claims. This writer noted the tendency to do this in an article in 2013 involving imposing abortion on Latin American countries on the basis of mere interpretations or recommendations of U.N. bodies about the meaning of international law. This tendency persists to this day. Earlier this year, the U.N. special rapporteur on freedom of religion and belief claimed that religious freedom requires not only that people be allowed to leave a particular religion at will, but also that they can belong to a religion of their choosing without “discrimination” against LGBT behavior or abortion. Any recognized religious differences between the sexes would also be banned, since women and girls must be able to participate in the religion of their choosing on the basis of “equality.” Thus the common claim that religious freedom protects much that secular liberals object to, and that it is an imposition on no one because people are free to leave a religion they don’t like, is taken away.
The draft report for the State Department very commendably explained (p. 41) that:
the widespread proliferation of non-legal standards — drawn up by commissions and committees, bodies of independent experts, NGOs, special rapporteurs, etc., with scant democratic oversight — gives rise to serious concerns. These sorts of claims frequently privilege the participation of self-appointed elites, lack widespread democratic support, and fail to benefit from the give-and take of negotiated provisions among the nation-states that would be subject to them
Additionally (p. 40):
New claims of rights that circumvent domestic constitutional processes and democratic politics — for instance, standards emanating from international commissions and committees, individual experts, and advocacy groups — may be useful sources of reflection about the appropriate scope of human rights, but they lack the formal authority of law
Commendably, the United States has signed on to only a few of the human rights treaties, which themselves are interpreted to cover rights that they don’t mention. Even here, as the draft report explains (p. 47):
For those few human rights treaties it has ratified, the United States has consistently incorporated a number of reservations, declarations, and understandings that are carefully designed to ensure compatibility between the treaty obligations the nation assumes and the requirements of the U.S. Constitution … The United States is not a party to any treaty that gives an international human rights tribunal the authority to render binding legal judgments against it.
Additionally (p. 41):
The positive international law of human rights also cannot determine whether the United States should make binding positive law for the country by ratifying a particular human rights treaty. The mere existence of a treaty is not a sufficient condition to require that it be accepted as a positive international legal obligation. Arguments must appeal to principles and interests beyond the existing state of the international law itself — and in the United States and other liberal democracies, they must persuade a majority of citizens, acting through their elected representatives.
The draft statement appears to have at least three objectives: 1) To distinguish the true rights of classical liberalism, in particular freedom of religion and property, from mere policy prescriptions claimed as rights, 2) to place the demands of the sexual revolution, i.e., acceptance of abortion and LGBT claims, in the latter category, and thus not issues for America to press on other countries as true rights, 3) to deny the power of U.N. officials to make international human rights law binding on all countries simply through their recommendations and rulings. All of this is laudable in terms of the ideals of classical liberalism, the American founding, and those ideals which have consensus support in America.
This badly needed clarification of human rights, if indeed it becomes final policy, will essentially take away the social engineering the Left wants to put above criticism or popular consent.
As noted above, this draft statement, and the prospect of a final statement like it, have drawn criticism from the Left, which is intensely involved in subordinating religious freedom to sexual liberation. The Center for American Progress issued a statement, signed by 31 religious leaders, criticizing the draft report for prioritizing religious freedom at the top of a “hierarchy of rights,” it’s attempt to “Americanize” the concept of human rights, and because it would “damage the protections of the universal value of human dignity.” Professing support for the “right of conscience and belief,” the statement denied that such freedom can be used as “a pretext to diminish other rights” which “enable humans to live in dignity.”
The critical “Statement of Faith Leaders” is finally simply incoherent. One cannot claim strong support for “freedom of conscience and belief” if acting against conscience is held to be justly required by claims of “dignity.” Nor is it unreasonable to stress the American origins of the idea of human rights, given the American role in World War II, and in the origin of the United Nations and the UDHR.
The critical statement is also mistaken in denying that religious freedom has primacy. In the classical liberal tradition, it is regarded as the “first freedom” – very reasonably – since it addresses ultimate questions. As the draft report notes (p. 14), quoting James Madison:
“we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction … because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.”
The same document by Madison (The Memorial and Remonstrance against Religious Assessments) states:
“It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance”.
Such a priority for religious freedom naturally leads to a limited government, and grounds other freedoms, since religious belief addresses ultimate reality, and covers all of life.
Just as the U.S. Supreme Court has manufactured sexual rights out of thin air with appeals to “freedom” and “dignity,” with no textual basis in the Constitution, so it is held that abortion, the LGBT revolution, and collectivist policies held to improve the human condition, are required of U.S. foreign policy and by international law. The Commission on Unalienable Rights corrected this, and it can be hoped that its findings and analysis will become part of U.S. foreign policy, and understood and accepted by the American public.