The US Commission on Unalienable Rights looks to establish clear definitions for a renewed global battle
The human rights project is in recession. For the last 14 years, political rights and civil liberties have declined around the world. Authoritarian states such as China are increasingly successful in arguing across Asia, Africa, and the Middle East that stability and economic progress depend on significantly curtailing basic liberties such as the freedom of expression and due process. International institutions such as the United Nations Human Rights Council and the International Criminal Court have lost credibility through their ineffectiveness, appearance of bias, and lack of accountability. Meanwhile, half the world's population—4 billion people—lives in countries where their basic rights are either systematically denied or compromised by weak government or violent conflict.
Despite these setbacks, the human rights field operates as if it were still the heyday of human rights, before the world became multipolar and Western-dominated institutions and ideas began to lose force in many parts of the world. Human rights advocates have tried to broaden the scope of issues covered by human rights while simultaneously narrowing the room for differences in bringing those rights to life. The number of rights, and rights claims, has grown and grown as advocates have become more strident in how these rights are prioritized and interpreted. This approach hampers peacemaking by overemphasizing retributive justice, stirs resentment by focusing on issues that lack local support, and reduces the local ownership of rights that is essential to safeguarding them in the long term.
Recognising the severity of this human rights recession, and the unique role the United States has played in promoting human rights, the US State Department established the Commission on Unalienable Rights in 2019. Its mandate was narrow: to review the "nation's founding principles and the 1948 Universal Declaration of Human Rights," or UDHR, in order to advise on how to promote human rights through US foreign policy. There would be no policymaking—only an attempt to review the lessons of history and establish a broad and flexible framework to guide the United States.
The announcement of the commission immediately drew opposition from human rights proponents, interest groups, and news organizations. The underlying assumption was that the commission sought to advance Secretary of State Mike Pompeo's political aspirations and religious beliefs in ways that hurt the interests of women's and LGBT rights around the world. More than 160 organizations wrote a joint letter to the commission in May to express concern about the work and any "potential report or output that undermines the international human rights system." The group warned against prioritizing religious freedom "as a cloak to permit violations of the human rights" of women, girls, and LGBT people. A number of organizations filed a lawsuit against Pompeo and the State Department on the grounds that the commission was biased in its makeup and operations—and thus in violation of the Federal Advisory Committee Act under which it was created.
But this pushback may have been driven more by fear than facts, given the commission's narrow mandate and scant public pronouncements. Certain advocates are concerned they will lose their privileged positions as gatekeepers for the field: Today they act as both legislator and judge, determining what rights matter and who is violating them. While human rights are meant to reflect universal aspirations and incorporate diverse views—as did the Universal Declaration—an industry of advocacy organizations, lobbyists, academics, and journalists has emerged that shares a remarkably similar interpretation of rights based on the idea that individual autonomy should be prioritized above all else—an idea echoed by the open letter. But the assertion that privacy and autonomy are "core" values is not evident in major international human rights treaties and reflects a uniquely Western understanding of personhood.
The Commission on Unalienable Rights released its draft report on July 16, and it has confounded critics who thought they knew what it would say. As mandated by its charter, it has not tackled contemporary controversies on rights—the greatest concern of critics. Instead, it offers a constructive set of ideas for how the United States can reclaim the moral high ground and reinvigorate the human rights project. While it won't be the final word on how to reform human rights, the report sets a high bar for subsequent debate and will hopefully lead to real change in how rights are promoted.
First, the report acknowledges the depth of the problems facing the field—something that anyone who cares about human rights should do. It correctly states that "in today's multipolar world… it is plain to see that the ambitious human rights project of the past century is in crisis. The broad consensus that once supported the UDHR's principles is more fragile than ever, even as gross violations of human rights and dignity continue apace." Unless a change in direction is forthcoming, the field risks becoming ever less relevant in many parts of the world.
Second, perhaps surprisingly for a body established by the Trump administration—which has often prioritized economic and geopolitical concerns over human rights—the report argues that "it is urgent to vigorously champion human rights in foreign policy." It makes a forceful case for why the United States should take the lead in seeking reform of the human rights system "in this hour of need," due to the role rights have always played in the US Constitution, culture, and international commitments.
Third, the report is modest and evenhanded. It repeatedly touches upon the failure of the United States to live up to its own ideals, arguing that "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. Even though the administration is not the best messenger, given how divisive the president has been, this humility is a welcome departure from how human rights are often promoted.
The report emphasizes the importance of both maintaining a global consensus on core human rights and accommodating diversity in cross-cultural implementation. Core rights include the handful prioritized and given little scope for flexibility by the drafters of the Universal Declaration, including protections against genocide, slavery, torture, inhuman or degrading treatment or punishment, deportation or forcible transfer of population, discrimination, and protection for freedom of conscience and religion.
This is not an easy balance, but it reflects the hard-won lessons of international negotiations on the UDHR and other major treaties, as well as recent criticism from people within the field as well as beyond it. The report emphasizes the need for subsidiarity, democratic accountability, and a margin of legitimate pluralism in how countries prioritize and implement rights. The "interplay between universal principles of human rights and the variety of human realities in which they must be honored is at the heart of the challenge of making human rights effective," it says.
The commission also attempts to correct the misconception that individual rights can stand independent of other rights and responsibilities. It instead stresses that rights are indivisible, interrelated, and interdependent—and to act otherwise is to undermine the consensus that forms the basis of the UDHR and other international agreements.
Finally, the report makes a sharp distinction between unalienable and positive rights, in line with the US constitutional tradition and international human rights documents. Whereas unalienable rights are universal and pre-political, positive rights depend on context: They are the product of custom, tradition, and civil society established through politics, and may change over time. The commission makes clear that both are important and can be closely linked but that their roles are different. For example, even though there is no global consensus on elderly rights, Singapore has mandated since 1995 that anyone over 60 years old is entitled to financial support from their children if they need it.
The report emphasizes the importance of the UDHR, both as a rights framework and as an example of how an international consensus around rights can be built. Without these, human rights can never gain global influence. It recognizes the need for the human rights field to return to basics—to the core elements that made the post-World War II human rights project possible.
As the commission's report points out, the revolution spawned by the UDHR was very much due to the ambitious modesty of its authors: Only a small number of rights were incorporated because only those that could attain a "near-universal consensus among the diverse nations" were included. Many of the rights were left open-ended to enable flexible interpretations and implementation. The UDHR was intentionally created as a political and moral document, "not as a legal instrument creating formal law." This modesty was essential to gaining consensus and to giving the document the power it had in the decades that followed.
The report could have better emphasized how institution building in weak states is critical to securing rights—an issue rarely addressed by the field despite the impossibility of securing rights without robust and accountable government. In many countries, the state is not strong enough to play a constructive role in people's lives because of weak capacity, corruption, and limited resources. Even if these countries have leaders who want to improve the human rights of their citizens, they lack the institutional capacity to do so.
The rising influence of China, Russia, and other authoritarian regimes marks the first time since the 1970s that liberal democracy is challenged globally by an alternative political framework. This makes the work of the Commission on Unalienable Rights more essential than ever. It is just one element in a broader recalibration of US policies intended to better confront the challenges posed by these states. And just as the Helsinki Accords played an important role in undermining the legitimacy of the Soviet Union and its Warsaw Pact allies, this report can hopefully contribute to ending the impunity with which certain regimes violate human rights today.
While the field will likely find fault in the commission's work, the criticism could say more about the shortcomings of the field than those of the report. If human rights proponents want to end the recession, we need to return to the movement's roots: to a more modest idea of universalism, a more pluralistic and integrated understanding of how rights work, and a greater emphasis on cultivating the seeds of rights in every society.
Disclaimer: This article first appeared on Foreign Policy, and is published by special syndication arrangement