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One of the more startling manifestations of the Biden administration’s subserviency to liberal advocacy groups is its sudden dismissal of the Commission on Unalienable Rights appointed by Secretary of State Mike Pompeo and the withdrawal of the Commission’s measured and thoughtful report.
The uninitiated may be puzzled by the State Department’s involvement in the issuance of publications about fundamental rights. The recent report of President Donald Trump’s “1776 Commission,” also cast into the wastebasket by the new administration, was criticized as an illegitimate effort to propagate an official version of history. It was intended as a riposte to the New York Times’s “1619 Project.” It was a work of official propaganda, though scarcely an unprecedented one; witness the publications issued at the time of the Bicentennial of the Constitution, which no one regarded as illegitimate.
The State Department’s effort enjoyed much greater legitimacy. Foreign policy realists, most notably the late George Kennan, have adopted as their watchword the cautionary declaration of Secretary of State John Quincy Adams in 1821:
America, in the assembly of nations, has uniformly spoken among them, though often to heedless and often to disdainful ears, the language of equal liberty, of equal justice, and of equal rights. She has abstained from interference in the concerns of others, even when conflict has been for principles to which she clings. Wherever the standard of freedom and Independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will commend the general cause by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own…She might become the dictatress of the world. She would be no longer the ruler of her own spirit….
Kennan had once urged that the Foreign Service “desist from all sorts of moralizing public judgment about the internal quality or propriety of Latin American governments,” sharing William Howard Taft’s view about Mexico in 1913: “We cannot make the qualifications of Sunday school superintendents square with the necessities of the situation where anarchy prevails.”
In the wake of the Second World War, the U.S. Congress adopted two foundational documents. The first was the Charter of the United Nations which declares in Article II(7) that “Nothing contained in this Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State.” This was drawn from the Treaty of Westphalia of 1648 which brought an end to the religious wars in Europe, rebellions by religious dissenters within states being unsustainable without foreign assistance.
The second was the Universal Declaration of Human Rights, which all members of the U.N. (save only for Saudi Arabia) including the communist countries were prepared to accept at least as aspirational, which was limited to political rights, including those of property, free elections, and religion. Subsequent covenants attempting to define economic and social rights were adopted by some countries, but not the United States.
These documents were supplemented in 1975 by the Final Act of the Conference on Security and Cooperation in Europe (Helsinki Final Act) signed by 30 or so European and Atlantic nations, including the United States and the Soviet Union. Article VI(1) of the Helsinki Final Act pledged adherence to the purposes and principles of the United Nations Charter and the Universal Declaration of Human Rights, and only to obligations “as set forth in International Covenants on Human Rights by which they may be bound,” expressly referring to “fundamental freedoms of thought, conscience, religion, and belief.”
Subsequently, the State Department during the Carter Administration set up a human rights agency to monitor compliance with the Helsinki Final Act, whose operations were extended beyond its signatories to all the members of the U.N. by an amendment to the Foreign Assistance Act in 1979. This was an unusual innovation, since it was not hitherto thought to be the function of diplomats to systematically criticize the domestic policies of the nations to which they were accredited. Reports on human rights had their genesis in the Foreign Assistance Act of 1961, referring to torture, detention without trial, and like abuses, subsequently supplemented by other statutes, including the International Religious Freedom Act of 1998.
The report commissioned by Secretary Pompeo thus bore a direct relationship to the duties of the Department, as defined by statute and arguably by the Helsinki Final Act. The chair of his commission, Professor Mary Ann Glendon of the Harvard Law School, was the author of The World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, which discusses the origins of the Universal Declaration and the limitations on it imposed to secure universal ratification. The report carefully discussed this history, urging that in American foreign policy and in the human rights country reports priority be given to the rights recognized in the Universal Declaration of Human Rights ratified by the United States Congress and those recognized in the congressionally enacted International Religious Freedom Act of 1998, and that attention be given to the rights of national self-determination and subsidiarity recognized in both the U.N. Charter and the U.N. Declaration of Human Rights.
Upon appointment of the commission, and on delivery of its report, a cacophony of organized criticism arose from dozens of American abortion rights and gay rights organizations. It is manifest that the “rights” these organizations exist to defend were not those on which the members of the United Nations and the U.S. Congress agreed in ratifying the Universal Declaration of Human Rights. So-called “reproductive rights” were anathema to religious authorities and governments in Roman Catholic, Muslim, and some ex-communist countries, including Russia, Poland, and Hungary. These rights had never been enacted or approved by most of the countries of the U.N., nor by the United States Congress, nor the overwhelming majority of state legislatures, and are the object of continued controversy in the United States and even in international religious bodies such as the Anglican communion. Their acceptance in the United States, such as it is, rests on 5-4 opinions of the Supreme Court with little or no foundation in any authoritative text. The late conflict-of-laws professor Brainerd Currie deplored the fact that “legal scholars and to a lesser degree the courts under their influence because of the compulsion of internationalist and altruist ideals have guiltily suppressed the natural instincts of community self-interest.”
Secretary Antony Blinken’s statement throwing the report in the trashcan and directing inclusion of “gay rights” and “reproductive rights” in human rights reports discusses none of this background or these considerations. Indeed, it was such as to suggest that he had not read the report. When advocacy groups or the campaign staff imported into the White House whistled, he jumped. His justification for discarding the report in its entirety read as follows: “Human rights are co-equal; there is no hierarchy that makes some rights more important than others.”
One wonders whether this logic is to extend to the “right to keep and bear arms” or the right to commercial speech, both “discovered” by majorities of the American Supreme Court larger than those in the Webster abortion case or the Obergefell gay marriage case. Rights talk is a game that any number can play, as was shown by the holdover Wilhelmine judiciary in its undermining of the Weimar Republic. The proliferation of “human rights” has dangers for international as well as domestic order; as Professor Mark Mazower observed in his Governing the World: The History of An Idea:
A world in which violations of human rights trump the sanctity of borders may turn out to produce more wars, more massacres and more instability…the bright line between war and peace enunciated in the U.N. Charter has been blurred. The boundaries between domestic and foreign, legal and illegal, civilian and combatant have become confused as never before…a vocabulary of permissions, a means of asserting power and control that normalizes the debatable and justifies the exception.
There is indeed a hierarchy of rights, defined by the inscription on our first secretary of state’s tomb and in the rotunda of his memorial, and recognized also in the practice of our other great secretaries of state: John Quincy Adams in the passage quoted above, Charles Evans Hughes in his robust defenses of free speech, and George C. Marshall in defining our alliance with the democracies of Western Europe. It is distressing to see a pygmy in the seat of giants.
George Liebmann is the author, among other works, of Diplomacy Between the Wars: Five Diplomats and the Making of the Modern World (Bloomsbury: 2019) and The Last American Diplomat: John D. Negroponte and His Times, 1960-2019 (Bloomsbury: 2015).