Back to Unalienable Rights

The human rights project is in crisis. Syria, Myanmar, and Venezuela commit gross human rights violations without fear of punishment. China and Russia promote a narrative internationally that claims basic freedoms must be curtailed for the sake of stability and economic advancement. Calls to make everything from Internet access to free employment counseling a human right have cheapened the meaning of rights and multiplied clashes between them. Meanwhile, four billion people—half the world’s population—live in countries where weak governments or violent conflicts endanger their basic rights.

This is why the State Department established the Commission on Unalienable Rights last year. Its mandate was narrow—no new policies or principles, only “advice” based on “our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights.” On Thursday, the Commission, headed by Mary Ann Glendon, released its report. In keeping with its charter, it makes no specific policy recommendations. Instead of delving into contemporary controversies, it focuses on establishing a broad and flexible framework that can help the United States reclaim the moral high ground and reinvigorate the whole human rights project. There are five key takeaways.

First, building on both the American constitutional tradition as well as international human rights agreements, the report distinguishes between unalienable and positive rights. Both are important, but have different roles to play. Whereas unalienable rights are universal (and few in number), positive rights are context-specific—a product of custom, tradition, and civil society. In the United States, “the unalienable rights proclaimed in the Declaration are secured by the Constitution,” the positive law that gives the former expression for a “particular people.”

Second, the report notes that the most important unalienable rights, in the eyes of the founders, were property rights and religious liberty. For them, property rights encompassed not only physical goods but also, following John Locke, “the fruit of one’s labor” as well as “life, liberty, and the pursuit of happiness.” As for religious liberty, it “enjoys similar primacy in the American political tradition—as an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtues.”

Third, it emphasizes the need to improve our human rights record at home if we are to be an inspiration abroad. “The American model will serve as an inspiration to others only so long as we ourselves recognize the gap between our principles and the imperfections of our politics and can demonstrate, as we ask of others, tangible efforts at improvements.” While “America must pursue . . . [human rights] with renewed vigor,” a “humility born of the awareness of her own ‘shortcomings and imperfections’ and of the complexities of world politics” is essential.

Fourth, the report highlights the importance of maintaining a healthy balance “between universal principles of human rights and the variety of human realities in which they must be honored.” Reflecting the hard-won lessons of the UDHR as well as the criticism the field has received, it emphasizes the importance of subsidiarity, democratic accountability, and the need for a margin of pluralism in how countries prioritize and implement rights. This entails an understanding that rights are indivisible, interrelated, and interdependent. To promote individual rights in an isolated fashion is to misconstrue both the fundamental conception that underlies human rights documents and undermine the fragile consensus that made international agreements possible.

Finally, the report argues that “Social and economic rights are essential to a comprehensive foreign policy.” “The indivisibility principle requires the economic and social rights to be taken seriously in formulating U.S. foreign policy. . . . [In addition] a certain minimum standard of living is essential to the effective exercise of civil and political rights.” This is a major contrast to past American practice, which has always emphasized civil and political rights first and foremost. While the United States has long provided economic assistance to the world’s poorest, this statement suggests that it ought to bolster efforts to resolve conflicts and strengthen institutions in weak states. Securing rights is impossible without these efforts. Aside from a brief mention, however, the report—like the human rights field generally—does not focus on their importance.

When the State Department formed the Commission last year, it immediately drew fierce opposition from a wide range of organizations. Critics asserted that its sole purpose was to “advance Mr. Pompeo’s religious beliefs and political aspirations, while proving detrimental to preserving the rights of women and gay, lesbian, bisexual and transgender people abroad.” One hundred and sixty organizations wrote a letter to the Commission to “express our grave concern.” Some even filed a lawsuit against the State Department and Secretary of State arguing that the Commission was illegal.

The pushback reveals much about the state of the human rights field today. While human rights are meant to reflect universal aspirations and incorporate diverse views, the field itself has degenerated into a monocultural industry of advocacy organizations, lobbyists, academics, and journalists—all strenuously safeguarding their roles. For these gatekeepers, the Commission was a direct threat to their self-appointed positions as judges—and to individual autonomy, a right they prioritize even if there is little evidence that international rights treaties do.

The report comes at a delicate time. The Trump Administration—which has an inconsistent record on human rights—is possibly on its last legs, with a transition to a Democratic president looming. If that occurs, the organizations suspicious of the Commission’s work will jump on the chance to bury it. That would be unfortunate, given the increasing influence of China, Russia, and other authoritarian regimes. For the first time since the 1970s, when the Soviet Union was still a plausible international model, liberal democracy is being challenged by an alternative framework. The need for a human rights reset should be obvious. We should see the report as a call for thought, reflection, debate—and action toward making the human rights field as relevant as it once was.

Seth D. Kaplan, a Lecturer at the Paul H. Nitze School of Advanced International Studies (SAIS) at Johns Hopkins University, is the author of Human Rights in Thick and Thin Societies: Universality Without Uniformity.

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