Report on Unalienable Rights Fails on Abortion

By | July 23, 2020

NEW YORK, July 24 (C-Fam) The U.S. Commission on Unalienable Rights, comprising some of the most respected human rights experts in the United States, released its first, and much anticipated report last week. The Commission opted to remain neutral on abortion.

“The undersigned Commissioners, like our fellow Americans, are not of one mind on many issues where there are conflicting interpretations of human rights claims — abortion, affirmative action, and capital punishment, to name a few,” the report reads.

Critics of the commission, including human rights organizations like Amnesty and Human Rights Watch, expected the report to undermine claims that abortion is an international right. They stormed the commission over the past year, insistently making the case that abortion is a human right. But their fears never materialized.

Secretary of State Mike Pompeo formed the commission last year to provide the U.S. diplomats with “advice on human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights,” as Pompeo said at a ceremony in Philadelphia last week.

The report of the commission is a comprehensive reflection on the American heritage of unalienable rights, as enshrined in the Declaration of Independence and the Emancipation Proclamation, and its relation to more recent developments in international human rights law. It surveys the history of the U.S. tradition through to the establishment of the post-war order and provides practical recommendations for U.S. diplomats.

The report dedicates its most poignant observations for the non-binding human rights claims of UN experts, committees, and other bodies, which have proliferated over the past 30 years.

“These are sometimes misleadingly named “soft law,” but properly speaking, they are not law at all,” the report says, calling some of the claims “extravagant.”

Against the widespread notion within UN headquarters that human rights treaties are “living instruments” the commission noted that “the United States’ selective ratification and strict construction of treaties signifies the firmness of the U.S. commitment to the rule of law.”

“The U.S. State Department has historically taken a firm stance that binding norms can only be made through the formal and recognized processes of public international law that pass through state representation and consent, and that so-called soft-law therefore does not and cannot result in obligatory international norms,” the report declared categorically

The commissioners described human rights processes as “rife with serious flaws,” including among these, elite interest-group capture and lack of democratic legitimacy. It also lamented the poor “quality of their work.” Even the more serious institutions are often ineffective in accomplishing their basic purposes,” the report notes.

“[T]he United States should be open but cautious in its willingness to endorse new claims of human rights,” the commissioners conclude.

The report sets out a suggested list of factors that to be borne in mind by U.S. diplomats when evaluating new human rights claims, including the text of human rights treaties’ ratified by the United States, universal acceptance, and consistency with the U.S. Constitution and established human rights.

But it is unclear if these same criteria can be applied to the issue of abortion, given the U.S. Commission’s own ambivalence about abortion. In a recently published report by the Heritage Foundation, scholar Tom Finegan, details how the text and history of human rights treaties creates a presumption that the right to life should be protected not just after, but also before birth.

Regardless of its position on abortion, the critics of the commission continue to undermine the commission’s work as an effort to dismantle human rights. The New York Times even refused to publish an article by Mary Ann Glendon, the chair of the commission, presenting the report.