GJC's Elena Sarver and Merrite Johnson dive into the Trump administration’s new “Commission on Unalienable Rights.” The commission is stacked with socially conservative ideologues with a history of hostility to abortion rights and LGBTQ rights. Its goal? To remake human rights in the image of Trump and his regressive agenda.
Transcript: The Commission to Undermine Human Rights
Thomas Dresslar: Welcome to “That’s Illegal,” a podcast produced by the Global Justice Center, or GJC. We’re a legal human rights non-profit based in New York City that works to move international law from paper to practice. This week, our legal advisor Elena Sarver and Program coordinator Merrite Johnson dive into the Trump administration’s new Commission on Unalienable Rights. The commission is stacked with socially conservative ideologues with a history of hostility to abortion rights and LGBTQ rights. It’s goal? To remake human rights in the image of Trump and his regressive agenda.
Merrite Johnson: Welcome to “That’s Illegal.” I’m so excited to be here with my colleague Elena to talk about the State Department’s new Commission on Unalienable Rights and just the general state of affairs when it comes to human rights in America.
Elena Sarver: Thank you Merrite. Also excited to be here. So, I guess one little note is that we’ve just published an article with the Columbia Human Rights Law review online and the title of the piece is “Canary in the Coal Mine”: Abortion and the Commission on Unalienable Rights. And I think that the title itself is indicative of how US efforts to undermine abortion should be seen as a canary in the coal mine in the human rights system and this commission is the latest example of that undermining and also should be a serious warning of things to come with this administration.
Merrite: Yes, absolutely. It all occupies the same kind of spectrum of closing space for civil society and cracking down on human rights and generally abortion rights, reproductive rights in general are the ones that are kind of like the test case. So very much the canary in the coalmine.
Elena: Yes. The commission itself has been formed, they’ve had two meetings so far and the third is scheduled for next week, December 11. So it’s well underway but, I guess we could back up a little bit to talk about how it came about and a little bit of background on it.
Merrite: So the commission was initially announced in May of 2019 with very little information about it.
Elena: Yeah very quietly. They published like a notice of intent to create an advisory committee and no one really knew what it was going to be.
Merrite: And just on for me personally, once we got word that this was happening and it was very ambiguous on what it was, I tried calling the contact person on the federal register and was rerouted to about 3 different offices. One being the press office who was very cagey and didn’t want to actually give me any information;
Elene: Maybe they didn’t have it.
Merrite: Maybe it was my fault for saying that I was calling from a human rights organization because maybe they just threw my message away as soon as I hung up but the point is that they were very cagey about it at the beginning and maybe this was because they didn’t know what direction this was going to go in.
Elena: I think that’s a good point. So then it was formally announced in July. Pompeo made a speech. and like you said it was immediately alarm bells from the human rights community about this commission and Pompeo himself published an op-ed defending the commission in the Wall Street Journal.
Merrite: Yes, and just to quote from the Wall Street Journal op-ed which is dated July 7th of 2019. It’s really just his justification for redefining human rights as though we don’t already know what human rights are but he says the commission is an advisory body; it’s members will address basic questions: “what are our fundamental freedoms? Why do we have them? Who or what grants these rights?” and then he also spends a couple of paragraphs just kind of dumping on human rights advocacy and civil society in general saying “it’s more of an industry than a moral compass and that many human rights advocates are just appealing to contrived rights for political advantage.” So he’s really just taking aim at the entire institution of human rights and international law as its existed since after World War Two, which is just incredibly audacious.
Elena: Yes. Interesting you point out that, this is in the initial announcement that he’s already in the defense. I mean that there’s already this idea that he has to defend this point of view and I think that says a lot about, the fact that, on one hand this is his brainchild. This is personal project of his own making and its indicated too by the people that are on the commission which we’ll get to later but…he was her research assistant Mary Ann Glendon. His mentor is the chair of the commission. There was an intent that it was going to be his personal project. And the purpose, as it was stated in the notice filing, there was this idea that this course has departed from our nation’s founding principles of natural law and natural rights. I think, those terms are really, they really have coded meaning. I think that in a lot of common discussion around that has been understood to mean anti-progressive ideals, anti-abortion, anti-LGBTQI, anti-women.
Merrite: It really dog whistles...It really speaks for itself that literal hate groups like the Family Research Council are all in on this commission and they are so excited for the works that it’s doing. So the promise was that that this would be bipartisan, expert group that would re-imagine what rights are. But that’s totally not what it is.
Elena: and I think there is just a lot of mixed messaging around the commission itself in its early days and then even till now a few months later. Pompeo himself said a few times that, yes, it’s an advisory body; it won’t opine on policy but then at the first meeting he said again it’s an advisory body, but we hope it will inform policy making in the future. So, it’s a little bit unclear about what the purpose is. Especially because there is already human rights bureau in the State department, so there wasn’t a lot of discussion around what this, why do we need this commission and how do we intend it to work with the other existing bodies? And who is a part of this?
Merrite: Exactly. And it’s very strange rhetoric in that he seems to be downplaying its importance to everybody who’s worried about it which is most experts and then playing it up to his base which is religious conservatives, extreme right-wing people. And it’s also, if we want to get into this now, the idea of reimaging what human rights are based on America’s founding principles is fundamentally just nonsensical because we already know what human rights are and it’s not up to any one country to determine what they are and who gets them.
Elena: Right. They exist to hold states accountable. They can’t be defined, redefined, limited, based on the demands or viewpoints of a single government or administration. I mean I know that in the charter itself, they actually do mention the Universal Declaration of Human Rights which was adopted in response to World War Two in a specific moment in history and forms the basis of many of the binding human rights treaties that have followed. The source of human rights…we can look to the treaties that have developed in the last 70 years. Various international law, customary international law, and this ideal that there is this equal basis and responsibility of states to protect these fundamental rights. It shouldn’t be for one government, one administration to define those based on their own personal, individual views. I know that Pompeo has said that his concern around the impetus behind this commission is that we need to ground our human rights in something more than one’s fancy at the moment but I think that really trying to undercut the development in the last 70 years in the human rights framework as it exists. And that we’ll need to preserve the power or your viewpoints in a way you, an individual, Pompeo, views them.
Merrite: It also fundamentally misunderstands what the modern human rights framework even came out, because it came out of World War Two and there was a global moment where people realized that actually we do need to enshrine these human rights and the international community does need to work together. In addition to, as you said Elena, all the treaty bodies and organs of the UN, these advisory committees and the people who review countries’ compliance with treaties, they are experts. They have years of experience and are incredibly knowledgeable in their field. So it’s not just random people pulling facts out of thin air. These are people who are looking at jurisprudence. It’s based on a tradition of international law. Honestly the gall of Pompeo to be like “nope, that seems kind of invalid to me” probably based on the fact that a lot of modern human rights thinkers are way more progressive than he is and his interest as shown through his entire political career is that he really doesn’t want to give rights to every group of people.
Elena: yes. And I think there is real need to reject this idea that these are “new rights.” I think that really undermines the value of the development and real input from other parts of the world, other groups than just, yeah it seems like a very strange thing to be just “oh we’re just starting over right now and we’re basing it in the founding principles of America.” Which is also problematic.
Merrite: Right. Like America’s founding principles had some ultra-modern beliefs of like how some black people were 3/5th of a person. Totally fine.
Elena: Not okay. And where is the room for challenging that? Who are the people that are going to be able to decide the answers to these questions: what are our human rights? He said that the commission will explore…what are our fundamental freedoms? Why do we have them? Who are that grants them? How should government be organized and limited to ensure the protection of rights? OK. But I think it’s a key question to say who are you appointing to decide the answers to these questions. That’s a key part of the information that will come out of this commission that he said himself, he hopes this will be used. He wants “citizens of the world to uphold this document prepared by the commission,” I mean, we have to look at the people that are going to be deciding the answers to these questions.
Merrite: So I guess do we want to go into who these people actually are? Because surprise, it’s a bunch of right wingers, gay bashers, and pro-lifers.
Elena: So not exactly this bipartisan group representing diverse points of view that they claim to consist of. I mean there’s 9 men, 3 women, 3 people of color, but only one confirmed democrat. I mean the partisan views aren’t terribly clear.
Merrite: the commission charter was also written by a man named Robert George who was the former chair of the national organization of marriage and believes that abortion is objectively immoral. So, yeah, super-impartial and open-minded person to be writing your commission of charter.
Elena: problematically, most of the people seem to share similar backgrounds and viewpoints, largely grounded in this conservative theology and have used those views to argue against contraception, LGBTQI protections, including same-sex marriage. A lot of them have written publicly on their viewpoints. So these aren’t hidden.
Merrite: it’s not a mystery. It’s also worth nothing that members of the commission themselves and other supporters of the commission’s creation, as soon as this was announced in May of this year, they were somehow appalled or they acted like they were appalled that human rights advocates, women’s rights, LGBTQ groups, were worried about this. And it was this idea that: “you’re judging us straight off the bat; this isn’t fair; give us a chance; how can you be so close minded?” It’s like…When people show you who they are believe them in the first time. And they’ve been showing us for over two years so it’s like “ya I’m the idiot for taking you at your word.” Because just a quick google of any of these people, you know who they are. The chair of this commission, Mary Ann Glendon, she was Mike Pompeo’s mentor when he was at Harvard Law School and she is incredibly conservative. For example: she was the representative of the Holy See to the 1995 Beijing conference. Where, not only did she lobby against recognizing the right to abortion, which ultimately was the prevailing view of the outcome document, she even opposed condom use as a means to prevent HIV prevention.
Elena: I think this is in our article too. There’s a quote that she had views more conservative than the Pope’s on women’s rights so that’s saying something.
Merrite: other members of the commission, one of them was a judge of the Inter-American Court of Human Rights, but is also a believer than religious freedom should extend to businesses like Hobby Lobby who don’t want to pay for their employees to have contraception as part of their health insurance plans. And it’s ironic considering these commissioners backgrounds that the charter itself which they got to come up with says its members should have distinguished backgrounds in US diplomacy, international law, and human rights. So that totally explains why a man who once compared embryonic research to Nazi science sits on this esteemed commission. And I think it’s worth reiterating that Pompeo himself has a history of extreme hostility to human rights including abortion rights, rights for LGBTQ people, basically for people who are not him.
Elena: yes. He was congressional rep in Kansas before becoming Secretary of State. And he supported abortion bans with zero exceptions for rape and he’s always asserted this US understanding of human rights should be grounded in religion. This idea that, there’s this real elevation of religious freedom and that those rights should be given by god, not government. And I think there is a lot problematic about that.
Merrite: And its idea that religious freedom and religious rights trump other kinds of rights. I think if you look at, if you compare the makeup of the human rights bodies at the UN, the people who are tasked with reviewing countries’ compliance with treaties and what these treaties mean. If you look at their expertise and their bonafides compared to the people who sit on this commission, it think it’s just another example of the incredible arrogance of Mike Pompeo in this whole thought experiment and of their attitude toward international human rights system and towards the idea of human rights as a whole.
Elena: and I think, something that’s also come out of conversations around this commission and around human rights is that there is a proliferation of rights, or this claim of rights that has exploded and again this undercutting of it based on merely personal preference. I think this hierarchy is problematic because it sets up a zero-sum structure and undercuts the universality of rights when you place some above others in terms of importance.
Meritte: exactly. It really speaks to their mentality that they’re treating this, like, giving a group a new category of civil rights somehow takes away from you personally. And I think it really speaks to the fear that they have of losing the power that they have because other people have been denied their basic human rights. This comes up all the time when you look at any kind of think piece about “have human rights gone too far?” It’s like “there’s too many human rights.” “If everything is a human right than nothing is.” But, first of all, its incredibly frustrating because it’s a logical fallacy to say that because the kind of rights that we are advocating for and other human rights organizations want to see in the world are not particularly outlandish. Here at GJC, we work on abortion rights because abortion is healthcare and if you look at the Universal Declaration of Human Rights, everybody has a right to medical care. It’s the same with the right to housing, right to be free from violence, right to education—that’s some pretty basic stuff and so honestly, I really invite anybody who has this idea that “there are so many human rights nowadays” which one do you think there shouldn’t be? Who do you think shouldn’t have the rights? Which one goes too far for you? Just tell me.
Elena: right. Who is any one individual to say “that right isn’t as important; I don’t need that one; or all people shouldn’t have that one in particular” I think just goes against logic as you said. And again it undercuts this development of 70 years of input of these expert groups that are charged with monitoring these treaties that have been signed onto by countries around the world. It’s not just one administration, one government who’s deciding what rights should be for all. It’s this collective consensus and development and it just shouldn’t be dismissed so easily by an individual.
Merrite: It’s also such an insult to all of the people who have worked so hard and many who have died to achieve these human rights. It’s just the audacity of just throwing out statements like that and talking about how human rights advocates are “we’re just cottage industry; we’re just in it for the money or the personal gain” is just total nonsense.
Elena: it really speaks to privilege and maintaining power as they want it for themselves. It’s a threat to their views.
Merrite: it’s a threat to them. The thought that every human being deserves to be treated with dignity is somehow a threat to them. Which really kind of says it all. A topic that has come up for us a lot in talking about this commission and in general and is in the paper which you can read at our website globaljusticecenter.net which you probably are on that website but if you’re not then you found this podcast on your own somehow other than our website. So, it’s obvious that one of the commission’s primary goals is to undermine global progress on abortion rights which the Trump administration has already done in so many ways.
Elena: truly. Even within two days of Trump taking office and putting the Global Gag Rule in effect and then expanding it. That right off the bat set the pace for I think what would come which we’ve only seen over the last two plus years.
Merrite: its only gotten worse. For example, in 2018 the State Department’s annual human rights report totally eliminated the sections on reproductive rights around the world.
Elena: yes, I think that sent a signal that it’s just not important to this administration.
Merrite: they’ve also, earlier this year in April of 2019, in a UN resolution talking about support for survivors of sexual violence in conflict zones, the US refused to vote for any resolution that even mentioned sexual and reproductive health for rape survivors.
Elena: I mean they were literally trying to veto the resolution entirely if they made any reference. And ultimately, there was no direct reference of reproductive health in the resolution as it passed. I think that it’s a compromise to avoid the US veto which is appalling.
Merrite: yes, it was. And it’s really appalling that is the hill they were willing to die on…That they were willing take others down with them.
Elena: I think there has also been consistent examples of replacing the word gender with “women and girls” in negotiated documents at the UN. I think that this is also indicative of this narrowing scope of human rights protections to just cover gendered assumptions of what women and girls should be rather than what all people are entitled to as humans.
Merrite: and I think that this matches up pretty well with what the Trump administration has done in other fora when it comes to the rights of trans, non-binary, and gender non-conforming people, as in totally denying that they exist.
Elena: yes there are examples of the Trump administration’s attacks on abortion rights as human rights framework. The cutting of funding for the organization of American states based on claims that its agencies were using funds to lobby for abortions in violation of the Siljander Amendment which prohibits the use of US funds to lobby for or against abortion. Essentially, this is censoring the free speech of human rights advisory bodies who provide expert guidance, not lobbying. They’re tasked with doing the work that they do. They are experts; it doesn’t fall into the definition of lobbying. I think it’s just another way to try to restrict abortion access in other bodies around the world now.
Merrite: and it’s a way for them to bully people who have opinions that don’t align with them and to bull them into silence.
Elena: yes. Abortion, we’ve seen the development of abortion as a human right recognized in treaties, human rights bodies, enshrining this abortion access as a human right in the International Covenant on Civil and Political Rights, the Convention against Torture. In the last 25 years, this development of access to safe abortion as a protected right under international human rights law, we can see it and to ignore that is to do a disservice to these groups that have been doing this wok for decades. And these international treaties are considered to protect access to abortion under various rights to health, life, non-discrimination, privacy, and freedom from torture.
Merrite: yes. And this kind of leads us more broadly into the overall US disengagement from the human rights regime which, with the caveat, starting off that, America has never, or, since World War Two, has not been particularly enthusiastic about the international human rights framework and international law even though Americans have been instrumental in developing a lot these institutions and treaty bodies, especially early on. But even if you look back, a really good example is the discussion in America over CEDAW which is Convention on the Elimination of All Forms of Discrimination Against Women which, in case you didn’t know, the US is one of six countries in the world that has not ratified this treaty. When congress was discussing whether CEDAW should be ratified and if there should be any reservations even proponents of ratification saw it as “we need to set this example for other countries where women don’t have rights.” Because there was a feeling, there still is feeling that American women don’t need the protections of international human rights. “We’re good with the constitution” which, I mean, is a total lie.
Elena: right. I mean just look across the country today how many restrictions on abortion state-by-state. Roe, with the judges on the Supreme Court, really under threat. So this idea that “women’s rights in the United States are the strongest protections possible” which is just false. I mean CEDAW has much stronger protections that we don’t have exactly.
Merrite: and beyond abortion rights, talking about maternity leave, pay equality, laws on domestic violence. The predominant narrative among a lot of American legal scholars or I guess the political rhetoric is “we have the constitution. We’re set. We have all the rights we need.” But the Trump administration has really taken a real hard right turn when it comes to human rights because even if previous administrations kind of perpetuated this idea that “America doesn’t really need human rights; we’re just setting an example for those other countries.” At least they respected the existence of international law and human rights. Even the Bush administration tried to justify its torture program under the Geneva Conventions which itself is a really really low bar. But it still demonstrates that the US recognizes that these laws exist and they need to be respected.
Elena: yes. I think that’s a good point that there’s been active disengagement from human rights framework within this administration. There are a few examples: withdrawing from the Human Rights Council; they have failed to submit any reports to the very few treaties that we are a party to including the Committee Against Torture and the Committee on Elimination of All Forms of Racial Discrimination. A few other points…Nikki Haley herself has called this UN report on US poverty ridiculous and a waste of money and resources and in her statement she said “they should have studies poverty in places like Congo, Burundi, and Venezuela” and I think that’s indicative again of this point that “our rights as Americans are great. We don’t need to worry about these concerns that are coming from other places” and I think that another take on that is that this idea that human rights are not for Americans. So as we’ve talked about this is not just some harmless debate club its, Pompeo himself has said that he hopes this commission will have a global reach and that people around the world can hold up documents prepared by the commission I suppose for their own rights…to invoke their own rights. I mean this isn’t just some fun thought experiment. I think it’s really intended to have real, I know he’s gone back and forth about saying that it’s just an advisory body but he’s also said that he hopes it will inform policy making. So I think we should, again, take him at his word.
Merrite: absolutely. It really fits into the larger pattern that we’ve seen over the past two and a half years from the Trump administration of attacking human rights, marginalizing minority groups, and really spitting in the face of the international system. We should take them at face value and I think it is really dangerous that this group of extremely conservative and bigoted people is being assembled with government funding and that they have the State Department behind them. I think that in itself is really shocking and should be really upsetting to people who care about basic human rights…who I hope is everybody who listens to this podcast.
Elena: it shouldn’t be viewed as this academic, I know a lot of the narrative around it is, it’s these individuals who are going to come together and talk about these questions but I think again this will implicate, It will involve actual people’s lives, I mean it already has with the policies that we’ve seen the Trump Administration put in place like the Global Gag Rule.
Merrite: yes like two and a half years in from the reimplementation and expansion of Gag the end result is literally, women are dying.
Elena: yes and I think another point is that is this isn’t just conservative administrations that should take human rights obligations seriously. I think it should be for any government or administration. It really will take serious engagement with the US’ own human rights obligations and that may look like ratifying CEDAW in a real, meaningful way. I mean we stand out as one of the few countries that hasn’t done that and I think that that says a lot when we stand apart and really don’t hold ourselves to account in the same way countries around the world. I think that sets up a very dangerous dynamic where then potentially it’s easier to commit violations because we don’t have to hold ourselves accountable to these systems.
Merrite: yes. Just like how the State Department quit talking about reproductive rights in their human rights reports. If you don’t acknowledge that these rights exist then you can go ahead and violate them however you want.
Elena: and you can go ahead and redefine them however you want.
Merrite: I think you’re right that this commission is not just an ivory tower group of academics who having lost the cultural war on same-sex marriage, have now turned their attention I guess to human rights in general.
Elena: we need to keep our attention.
Merrite: I think it is also worth pointing out that we’re not the only ones who are super concerned about this commission; there are plenty of members of Congress both in the Senate and House who have sent letters to the State Department and have also started raising inquiries about this because again this commission is operating with our money.
Elena: yes there should be transparency around what their intent is and who are ultimately the people deciding these important questions but again, is this really a necessary use of money when we have an entire human rights framework?
Merrite: right. We know what human rights are. It’s not a mystery.
Elena: and we should take them seriously. I think that, when they’re so easily dismissed it’s really concerning for what that means. It doesn’t bode well for the future. Well I think that’s all the time we have today before both go into a rage. But we will certainly be keeping our eyes on this commission; it is, I think, I don’t have the charter in front of me, but I think it’s intended to meet at least once a month for the next 2 years I believe right?
Merrite: so maybe we’ll go to a meeting who knows? They are open to the public.
Elena: yes, I think that it’s important to monitor and not let this group off the hook for their arrogance and the lack of clarity and for the need of the group and for what their intend and purposes will be. It will be important to keep our eyes on them.
Merrite: we’ll be keeping them on their toes because that’s what GJC does.