Blinken's Unfair "Repudiation" of the Report on Unalienable Rights

President Biden did not resist, in his recent press conference, the temptation to name, repudiate, and more significantly blame his predecessor several times, but Secretary of State Blinken has generally avoided knee-jerk repudiation of all that went before. A look at Iran and Venezuela policy demonstrates this.

It was therefore unfortunate when Blinken did so in the context of announcing this year’s human rights reports. The Biden administration says it is making support for human rights a central part of its foreign policy, a move that I applaud. And in general, the changes Blinken has made were to be expected: he announced an effort to rejoin the United Nations Human Rights Council, and the restoration to the annual human rights reports of a section, removed in the Trump administration, “on reproductive health, including information about maternal mortality, discrimination against women in accessing sexual and reproductive health care, and government policies about access to contraception and skilled health care during pregnancy and childbirth.” 

Blinken stated what I hope will be his guiding principles well:

Now, some have argued that it’s not worth it for the United States to speak up forcefully for human rights, or that we should highlight abuse only in select countries, and only in a way that directly advances our national interests. I believe those people miss the point. Standing up for human rights everywhere is in America’s interests. And the Biden-Harris administration will stand against human rights abuses wherever they occur, regardless of whether the perpetrators are adversaries or partners.

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Countries where dissent is welcomed, where corrupt and abusive officials are punished, where labor laws are respected, where people of all backgrounds have equal access and opportunities – those countries are more likely to be peaceful, prosperous, stable. They’re less likely to fall into conflict.  They’re more likely to have growing economies and be markets for our own goods and services. And governments that respect human rights are more likely to support the rules-based international order that the United States and our allies have built and invested in for decades and decades.

But he then took an unfair and partisan swipe at a careful, thoughtful, well-researched report produced last year:

One of the core principles of human rights is that they are universal.  All people are entitled to these rights, no matter where they’re born, what they believe, whom they love, or any other characteristic.  Human rights are also co-equal; there is no hierarchy that makes some rights more important than others.

Past unbalanced statements that suggest such a hierarchy, including those offered by a recently disbanded State Department advisory committee, do not represent a guiding document for this administration.  At my confirmation hearing, I promised that the Biden-Harris administration would repudiate those unbalanced views.  We do so decisively today.

“Repudiate” is a very strong word, no doubt carefully chosen. What was he referring to? The Commission on Unalienable Rights established by former Secretary of State Mike Pompeo, who described its goals this way:

We wanted to go back to first principles, back to our founding documents, our Declaration of Independence, our Bill of Rights to focus on those things that are central to the understanding of rights here in America.

What in that statement is worth repudiating? The Commission was chaired by the distinguished Learned Hand Professor of Law at Harvard Law School, Mary Ann Glendon, whose book A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights told the history of the creation of the Universal Declaration of Human Rights.

What was this awful Commission and its terrible report?

Take a quick look at the table of contents, first:

I. INTRODUCTION 

II. THE DISTINCTIVE AMERICAN RIGHTS TRADITION 

A. The Declaration of Independence 

B. The Constitution 

C. Lincoln’s Return to the Declaration 

D. Post–Civil War Reforms 

E. America’s Founding Principles and the World 

III. U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES 

    A. The Universal Declaration of Human Rights and the United States 

    B. Reading the Universal Declaration 

    C. Persistent Questions Regarding the UDHR 

1. National Sovereignty and Human Rights 

2. Relation of Civil and Political Rights to Economic and Social Rights 

3. Human Rights and States’ Obligations 

4. Democracy and Human Rights 

5. Hierarchy of Human Rights 

6. The Emergence of New Rights 

7. Human Rights and Positive Law after the UDHR 

8. Human Rights Beyond Positive Law 

IV. HUMAN RIGHTS IN U.S. FOREIGN POLICY 

    A. Foreign Policy and Freedom 

    B. Constitutional Structure, Statutory Context, and Treaty Obligations 

    C. New Challenges 

    D. Human Rights in a Multidimensional Foreign Policy 

V. CONCLUDING OBSERVATIONS 

Does this seem unbalanced, dangerous, worthy of repudiation? I would venture a very strong guess that Mr. Blinken has simply never read the Commission’s report. 

What did it say, especially on the topic he singled out—a hierarchy of rights?

First, my own comment. Of course we believe there is a hierarchy of rights, because some rights have Constitutional protections and others do not. The argument that there is no hierarchy, that “you Americans have rights like freedom of religion, speech, and assembly, but we prioritize the right to housing and full employment” is one of the oldest, least persuasive claims heard from dictators around the world for nearly a century. Blinken did not specify what he views as “the core principles of human rights” that are “co-equal,” and he would be accurate if he meant by that the rights protected in the Constitution. But he spoke far too broadly by failing to define terms and suggesting that no distinctions can be made—and indeed that it is morally wrong to try. It is simply not the case that in the United States the “right” to medical care or a pension have the same protection as do First Amendment rights.

Now, what did the Report say? It is sensible about human rights and foreign policy, saying that:

While it is important to affirm the interdependence of all rights that pertain to human dignity, U.S. foreign policy can and should consider which rights most accord with national principles and interests at any given time. Such judgments must take into consideration both the distinctive American contributions to the human rights project and also prudential judgments about current conditions, threats, and opportunities.

That’s what Blinken is “repudiating?”

It’s worthwhile to quote the Report at length—largely because its contents are being misrepresented, and the only way to combat that is to have people see what it said: 

[I]t defies the intent and structure of the UDHR to pick and choose among its rights according to preferences and ideological presuppositions while ignoring other fundamental rights. Tensions among rights can never be an excuse for failing to abide by human rights commitments assumed under international law….

It is no departure from that affirmation to recognize that certain distinctions among rights are inherent in the Universal Declaration itself, as well as in the positive law of human rights developed in light of the UDHR. International law accepts that some human rights are absolute or nearly so, admitting of few or no exceptions, even in times of national emergency, while others are subject to many reasonable limitations or are contingent on available resources and on regulatory arrangements. Some norms, like the prohibition on genocide, are so universal that they are recognized as norms of jus cogens — that is, principles of international law that no state can legitimately set aside — while other norms are open to sovereigns to accept or not. The application of certain human rights demands a high degree of uniformity of practice among nations, as in the prohibition of torture, but others allow of considerable variation in state practices, as in the protection of privacy….

In practice, decisions about the priority of rights are not only inescapable but desirable. To begin with, in many circumstances certain rights have a necessary logical precedence. Many claims of right, moreover, are in tension even as appropriate accommodation among them must be found. For instance, the high value the United States has accorded to freedom of speech has led Washington to take exception to international norms mandating the prohibition of hate speech. Such differences of judgment about the relative weight to assign to rights are unavoidable and appropriate.

Similarly, the U.S. president and Congress have constitutional obligations to make complex political judgments about the most pressing and critical human rights issues of the moment, and to establish diplomatic and political priorities accordingly. Every organization concerned with human rights — governmental, nongovernmental, and intergovernmental— necessarily does the same. Often those priorities reflect a particular history and commitment, such as the U.S. Congress’s enactment of statutory mandates for offices dedicated to the protection of particular rights, like religious freedom and freedom from slavery (human trafficking), which are legacies of the distinctive historical experience of the United States and reflect the American people’s considered judgments and enduring interests.

In sum, while the Universal Declaration does not explicitly establish a hierarchy of rights and while it is important in principle to affirm the interdependence of all rights that pertain to human dignity, U.S. foreign policy can and should, consistent with the UDHR, determine which rights most accord with national principles, priorities, and interests at any given time. Such judgments must take into consideration both the distinctive American contributions to the human rights project and also prudential judgments about current conditions, threats, and opportunities.

The Report concludes that “It is urgent to champion human rights in foreign policy,” a view with which Secretary Blinken agrees. I doubt he knows what was in the Report, and instead went along with political pressure and with assertions that the Report derogated certain politically popular claims while placing religious freedom above all other rights. That’s simply untrue, and it was unworthy of the State Department and the Secretary to treat this Report as they have. 

One expects new administrations to have new policies and to say they are better than the previous ones. But to misstate what the Department has previously done and dismiss it as Secretary Blinken did is disappointing at best. 

I did not write one single word of the Report nor did I serve on the Commission. I read it when it came out, and thought very highly of it. So would Tony Blinken if he had the time to read it through.