The Report of the CUR (Commission on Unalienable Rights)

by Deena Hurwitz, Human Rights Attorney and Educator; Founding Director, International Human Rights Clinic, Univ. of Virginia Law School

In July 2019, hundreds of U.S. experts on foreign policy, human rights, civil liberties, and social justice, sent a letter expressing deep concern with the State Department’s Commission on Unalienable Rights. It conveyed serious objection to the Commission’s stated purpose, which the signatories find harmful to the global effort to protect the rights of all people and a waste of resources; the Commission’s make-up, which lacks ideological diversity; and the process by which the Commission came into being and is being administered, which has sidelined human rights experts in the State Department’s own Bureau of Democracy, Human Rights, and Labor. 

In March 2020, Democracy Forward filed a lawsuit against the State Department in the Southern District of New York on behalf of the Robert F. Kennedy Center for Human Rights, the Center for Health and Gender Equity, the Council for Global Equality and the Global Justice Center. The lawsuit argues that the creation of the Commission on Unalienable Rights violates federal law requiring a balance of views in an advisory committee’s membership and transparency in its work – neither of which is evident with the commission.

Social scientists label the process of deciding what evidence to accept based on the conclusion one prefers motivated reasoning. It functions to avoid cognitive dissonance rather than re-examine it.  The draft Report of the Commission on “Unalienable” Rights (“CUR”), released July 16, is a case in point. 

Secretary of State Michael Pompeo sought “an informed review of the role of human rights in a foreign policy that serves American interests, reflects American ideals, and meets the international obligations that the U.S. has assumed.” To that end, the CUR’s universe of information is the Constitution and the 1948 Universal Declaration of Human Rights — convenient since (a) the U.S. was central in drafting the UDHR, and (b) it is non-binding.  This suits a solipsistic objective, and avoids international developments over three quarters of a century that contradict Pompeo’s version of American interests.

The disconnect between the Commission’s work product and the nation in this historic moment is striking.  The Report does mention the “social convulsions” that “testify[…] to the nation’s unfinished work in overcoming the evil effects of its long history of racial injustice” and it concedes U.S. credibility abroad depends on “assuring that all its citizens enjoy fundamental human rights.” But apart from identifying racial injustice as an historical blight, the Report underscores the fundamental delusion – that the U.S. is “an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity.”  

The Commission avoids the present, preferring to give a history lesson that reads like a chapter from a mid-century social studies textbook.  (The back cover looks like an early ‘60s stock photo from Life Magazine.)  It begs the question: who is the Report’s audience?  

For all its homage to the nation’s founding evils of slavery and “forcible displacement” of Native Americans (no reference to genocide), there is no mention of the disproportionate impact of the pandemic on communities of color and other vulnerable populations. Social determinants of health — race, income level, gender identity, physical environments — expose structural racism.  And, structural racism exposes just how deeply unfinished is the work towards equal enjoyment of fundamental human rights in this country. As of July 22, 25% of COVID deaths were black, although blacks are only 13% of the population.  Native Americans are also disproportionately affected by pre-existing conditions that pose additional risk factors for COVID, including economic inequality and health problems. As of May 27, the Navajo Nation had the highest infection rate per capita in the U.S.

Without naming George Floyd (or any others), the Report pays brief lip service to the law enforcement crisis in black and brown communities.  It then sanctimoniously notes that appreciating the work that remains “is itself a crucial element of America’s distinctive rights tradition”.

The problem with human rights, according to the CUR, is that there are too many; and numerous “new rights” are not part of the American founding fathers’ ideals, interests or assumed obligations.  Rather than examining why that might be, the CUR invokes three “traditions” that shaped the American “spirit”:  Protestant Christianity; the “civil republican ideal”; and classical liberalism (legitimate government derives from the consent of the governed). These traditions underlie the “core conviction that government’s primary responsibility was to secure unalienable rights – that is, rights inherent in all persons by virtue of being human.” Unalienable rights, explains the CUR, are “pre-political” – not created by persons or society.  

According to the CUR, “foremost among the unalienable rights that government is established to secure … are property rights and religious liberty.”  The Report states that abolitionists thought owning property was a necessary element of emancipation: “only by becoming property owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.” Invoking John Locke, the CUR states that “the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.”

The notion that property rights are inherent to our humanity is preposterous, if not a cruel joke. There is currently a 30-percentage-point gap between black and white home ownership —  larger today than before the Fair Housing Act (1968), when housing discrimination was legal. Legacies of redlining and community segregation, disproportionate eviction rates, victimization by predatory lenders, foreclosures – these examples of structural racism deny people of color their “unalienable right” to property.  New data suggests COVID-19 is only widening the housing disparities by race and income. 

A fundamental aspect of human rights is that accountability for violations lies with the state. The CUR affirms that as government systematically denies “the very idea of unalienable rights,” citizens are “justified in establishing a new form of government to secure their rights.” Certainly not a new form of rights to secure their government.