Pompeo’s controversial plan to make human rights ‘great again’

Secretary of State Mike Pompeo has launched a controversial human rights commission to address what he believes is the corruption of human rights discourse. He charged this Commission on Unalienable Rights with proposing “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights.”

His reference to natural rights harkens back to a time when legal scholars believed that God, not government, imbued humans with rights. He blames the human rights movement for blurring the line between those rights that are “unalienable,” or God-given, and those that are man-made.  In line with the Trump administration’s general nostalgia for a time when religious, predominately Christian, values took precedence, Pompeo hopes that the commission will return primacy to God-given rights, thereby making human rights great again.

Pompeo and the members of the commission have all linked God-given rights to gravity, a key concept in international law. Like Pompeo, the new chairwoman of the commission, Harvard Professor Mary Ann Glendon, believes that only a handful of “unalienable rights” should be prioritized. She counts “prohibitions of torture, enslavement, degrading punishment, of retroactive penal measures, and of other grave violations of human dignity,” as worthy of heightened protection, but also the “freedom of religion and conscience.”

Her inclusion of religious freedom derives from her belief that so-called conscience rights, defined as the right not to be forced to do something contrary to deeply held beliefs, are particularly under threat due to the rise of secularism. She and two other commissioners share the belief that requiring health insurance companies to cover contraceptives is “a grave violation of religious freedom.”

As the very mandate of Pompeo’s commission demonstrates, one of the greatest ironies and dangers of “God-given” rights is that they are defined by governments. And governments do not always agree. In the “good old days” of natural rights, the nations with the most military might imposed their version of what was good and just through violence. This approach to international relations ushered in decades of wars and brutality in the name of God.

In the aftermath of two devastating world wars, modern international law was born. This brand of international law is decidedly more concrete and collective. Instead of acting unilaterally, nation states increasingly work together to identify and punish gross violations of the law of nations. Rights and duties have also been spelled out in treaties and judicial decisions. The current international legal order is certainly not perfect, but it has resulted in a more peaceful world.

Instituting a national commission that will unilaterally define a narrow set of God-given rights in line with the United States’ founding principles risks undercutting these recent advances. The commission cannot redefine fundamental human rights in a vacuum. Should the commission wish to use gravity to anchor its work, it must draw from the existing law of gravity. To some extent, gravity has suffered from some of the same ambiguity as God-given rights, which leaves it subject to manipulation. 

However, as international law matures, what amounts to a grave violation has become clearer — and a set of common factors that decision-makers typically weigh when determining whether a violation is grave. 

Courts and other international bodies have provided fairly specific guidance: Violations are grave when they are universally condemned, done deliberately and either acutely harm a limited number of people or are so widespread and systematic that the cumulative harm is severe. For example, the extrajudicial killing of journalist Jamal Ahmad Khashoggi is a grave violation of international law, but so is the pillage of villages in South Sudan.

Likewise, these bodies have found that violations that injure vulnerable populations like children, involve an abuse of authority, particularly by state actors, or occur over an extended period of time are likely grave. For instance, the United Nations has passed a resolution identifying six grave violations affecting children and established a special unit to monitor these violations. These factors should serve as guideposts and, in some instances, constraints on the commission. 

If the commission simply makes human rights up as it goes along, without grounding its work in international law, it will propagate the “loose talk” of human rights that Pompeo detests. Pompeo is right about one thing: Making human rights great requires more.

Rachel Lopez is an associate professor of law at Drexel University’s Kline School of Law. Formerly, she was a Fulbright Scholar and fellow at the Schell Center for International Human Rights at Yale Law School.