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U.S. State Department Commission on Unalienable Rights

Analysis

Reproductive rights are globally recognized as human rights, yet the Trump-Pence administration continuously seeks to exclude them from internationally negotiated agreements and U.S. foreign policy.

In 2019, Secretary of State Mike Pompeo formed the Commission on Unalienable Rights to provide “advice on human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights.” Pompeo has asserted that a “proliferation” of new rights is weakening the very concept of universal human rights.

Since the inception of this commission, PAI and other advocates have had serious concerns about its mandate. These fears were realized with the July release of the commission’s “draft” report, which provides justification for the Department of State to create a hierarchy of rights and undermine international human rights, particularly reproductive and LGBTI rights. PAI summarized our response in two public comments submitted to the Department of State: one in April 2020 on the commission itself and another in July 2020 following the publication of its report.

Dear U.S. State Department Commission on Unalienable Rights,

As a nongovernmental organization (NGO) dedicated to advancing the human rights of women
and girls, I write to express our deep concern with the Commission’s work to date and the
potential harm that a final report produced by the Commission, in line with its mandate and
the views expressed by several of its members, may have on internationally recognized human
rights and U.S. foreign policy.

The purpose of the Commission, according to Secretary of State Mike Pompeo, is to identify
which internationally recognized human rights are “unalienable” and which are “ad hoc,”
in apparent opposition to U.S. treaty and legal obligations and long-standing foreign policy
positions.

The deeply troubling views expressed by many commissioners support one of our
initial concerns; namely, that the Commission’s objective is to produce recommendations that
would narrow the scope of U.S. obligations under international human rights law and justify
a ranking of rights that prioritize some over others. We are particularly concerned that the
Commission’s work may seek to justify the rolling back of hard-won advances in areas such
as the rights of women, girls and LGBTI persons.

Though international human rights frameworks do not establish a hierarchy that allows for
the exercise of some rights in ways that violate others, some members of the Commission
have openly discussed the “prioritization” of some rights over others. When raised, this
discussion has mainly focused on prioritizing freedom of religion over other rights, such as
the right to health, which has been a long-recognized human right. The right to the highest
attainable standard of health — free from violence, coercion or discrimination — is a critical
component of ensuring that all individuals of all sexual orientations and gender identities
are able to exercise their sexual and reproductive rights. This includes having access to the
health services, supplies (such as contraception) and information, including comprehensive
sexuality education, necessary to fulfill these rights. Furthermore, sexual and reproductive
rights encompass the rights of individuals to control and freely make decisions related to their
sexuality, reproduction, choice of partner and bodily integrity.

Some of the commissioners and experts who have testified before the Commission have
argued that freedom of religion sits atop “lesser” or subsidiary rights and that the violation
or infringement of these lesser rights must be tolerated in order to ensure the full protection
of religious freedom.

While no one should face discrimination on the basis of their religion or belief, a prioritization of religion over other rights may have disproportionate impact on women and girls, as well as on sexual and gender minorities. We are concerned that these views regarding prioritization of rights could drown out the testimony of others like Ken Roth, executive director of Human Rights Watch, who used his testimony to remind the commission that “… freedom of thought, conscience, and religion does not protect religiously motivated discrimination against women or racial minorities.”

These concerns are further compounded by Secretary Pompeo’s argument that the Commission is needed to address a “proliferation” of human rights claims and the undermining of “fundamental” individual rights, namely freedom of religion and speech. What the Secretary of State and others describe as a “proliferation” has largely been an increased recognition over the past several decades of the rights of women, LGBTI persons and other vulnerable or minority populations. As such, these changes have not undermined international human rights frameworks but have strengthened them, ensuring that they now protect the rights of a greater number of individuals.

For people around the world, debates about human rights are not theoretical, academic
exercises; rather, they are matters that impact their daily lives and, in some cases, the
difference between life and death. The administration has already taken extreme steps to
limit access to sexual and reproductive health services and even information both at home
and abroad, including defunding the United Nations Population Fund, reimposing and
repeatedly radically expanding the Mexico City Policy (now referred to as “Protecting Life
in Global Health Assistance”) and proposing massive disproportionate cuts to international
family planning and reproductive health programs. These actions have, in effect, limited
women, girls and others from exercising their sexual and reproductive rights by creating
unnecessary and harmful barriers. Furthermore, we have seen this administration seek to
narrowly redefine gender as biological sex and strike the term from international negotiated
resolutions and agreements. Even in the State Departments’ annual human rights reports,
the administration has struck reporting on reproductive rights, which included reporting on
access to contraception, abortion and maternal mortality, among other topics. We worry that
Secretary Pompeo will use the outcome report of this coalition to justify these actions and
further limit the rights of and protections for women, girls and LGBTI persons around the
world.

From its inception, the Commission’s mandate, the opaque process by which it came into
being, the duplicative nature of the body vis-à-vis the State Department’s legally authorized
human rights bureau, the publicly stated views of several of its members and the lack of
diversity of expertise of its membership have deeply troubled hundreds of human rights
organizations, including PAI, human rights scholars and other concerned citizens, who
previously asked that the Commission be disbanded. The work of the Commission has only
reinforced these concerns.

Sincerely,

Elisha Dunn-Georgiou
Interim co-CEO

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