Legacy of the Unalienable Rights Commission: Discussion with Dr. Peter Berkowitz, Director of the Policy Planning Office, U.S. Department of State

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In May 2019, Secretary of State Mike Pompeo announced formation of the Commission on Unalienable Rights, tasked with reexamining human rights in U.S. foreign policy.  The very concept of “unalienable rights” proved immediately controversial with “traditional” human rights organizations, and four of them sued the State Department in federal court, claiming the Commission was unbalanced in its view on human rights.  The Commission completed its work in August with a report outlining how “unalienable rights” – the rights inherent in all persons – inform the Declaration, and the U.N. Declaration of Human Rights, and how unalienable rights should inform U.S. foreign policy.

Human Rights organizations continue to write that they are alarmed by the Commission, arguing that it is the basis of a “pick-and-choose” version of human rights.  Mary Ann Glendon, the Commission’s chair, recently stated, in a curated discussion with Secretary Pompeo, that human rights should be independent of sovereign decision making: “[I]f there are no rights that exist independently of the sovereign, then we are in a world where the strong do what they will and the weak and the vulnerable suffer the consequences.” 

Are the Commission’s concerns different from the concerns that have been traditionally expressed in international human rights law, and, if so, what does the future hold for the Commission’s report? 


Dr. Peter Berkowitz, Director of the Policy Planning Office, U.S. Department of State




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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.



Nick Marr:  Welcome, everyone, to The Federalist Society's Teleforum conference call as this afternoon, January 14, 2021 we're discussing the legacy of the Unalienable Rights Commission with Dr. Peter Berkowitz. He's the director of the Policy Planning Office at the U.S. State Department. We'll get a longer introduction in a second.


      I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our experts. So I'll introduce our moderator.


      We're very pleased this afternoon to be joined by Mr. Bob Barker. He's an attorney in Atlanta. And he's a member of our International and National Security Law Practice Group Executive Committee, the sponsor of this call today. So before I hand the floor off to Bob, after Bob gives a brief introduction, Dr. Berkowitz is going to speak on the Commission. Then we'll have a long question and answer period, so be thinking of questions as we go along, have them in mind for when we get to that portion of the call.


      All right. Thanks very much for being with us today. Bob, I'll hand the floor to you.


Bob Barker:  Thank you, Nick. I'm grateful for everyone who's joining us today on today's call, and also to the International & National Security Law Practice Group for sponsoring the call. As Nick mentioned, we have today with us Dr. Peter Berkowitz talking about the report of the Commission on Unalienable Rights.


      There was a teleforum done on this last year with Professor Robert George of Princeton, but Dr. Berkowitz has actually been involved in the internal workings at the State Department on this matter. He's the Director of the State Department's Policy Planning staff, as Nick mentioned, which is the policy arm of the State Department. He joined the State Department from the Hoover Institution at Stanford University, where he's the Tad and Diane Taube Senior Fellow.


      His interest and prior writing suited him to this important mission at the State Department. He's the author of many books on liberties, and as I was looking through them, they break into concepts, like liberty and political thought where he wrote on things such as Nietzsche and the Virtue and the Making of Modern Liberalism. That was a 1999 book. He's also authored books on constitutional theory and the Constitution, such as Constitutional Conservatism: Liberty, Self-Government, and Political Moderation, published by Hoover in 2013, and books on the laws of war and national security, such as Israel and the Struggle over the International Laws of War, 2012, and a collection of essays at Hoover dealing with the future of intelligence and terrorism and enemy combatants.


      Dr. Berkowitz holds a JD and a PhD in political science from Yale University, an MA in philosophy from the Hebrew University of Jerusalem, and a BA in English literature from Swarthmore College. With that, Dr. Berkowitz, I'll turn it over to you.


Dr. Peter Berkowitz:  Well thank you very much Bob. And thank you for the opportunity to address this august group, which has done so much to inform, to improve our understanding of law, constitutional government.


      Where to begin? I think we should begin in the Summer of 2019 when Secretary Pompeo announced his intention to create a Commission on Unalienable Rights. His intention was informed by what he regarded as a crisis, a crisis of human rights. Of what did this crisis consist?


      Well, he observed that there was significant controversy over the nature and scope of rights. Rights were being attacked from both the left and the right. The left saying there was a form of cultural imperialism, the right saying that the great post-World War II human rights project had been highjacked by progressives and was being used to impose progressive preferences and sensibilities around the world in the name of human rights.


      And there was also controversy over international organizations themselves, their corruption, their one-sidedness, which above all was epitomized by the U.N. Counsel on Human Rights, which devoted more than 50 percent of its energies and its resolutions to denouncing a single state, Israel.


      So in light of this crisis, and because of what Secretary Pompeo regarded as America's undoubted commitment to human rights at home and in his foreign policy, he created a commission with a mandate. Our mandate was to seek to reground America's commitment to human rights and America's founding principles and constitutional traditions. That meant also embracing the 1948 decision of the United States to affirm at the United Nations the Universal Declaration of Human Rights, which I should emphasize at the beginning, as you all know but still is worth emphasizing, is a declaration of principles, not itself positive law. It's a declaration of principles and elaboration of standards that are to inform all nations and all peoples.


      So that was our mandate. To some people, that could seem simple and harmless. To a good portion of the great human rights establishment, this announcement seemed like a mortal threat. Within about two weeks of Secretary Pompeo's announcement in early Summer 2019, he received an open letter signed by about 250 human rights activists, NGOs, former holders of political office, scholars, declaring that his commission was bound to cause lasting harm to the cause of human rights. He should immediately dismantle it and use the resources he was going to expend on it -- that was about $250,000 out of a State Department budget of $51 or $52 billion, never mind. He should immediately dismantle it, use the intended resources for something constructive.


      What were the criticisms of the Commission on Unalienable Rights? Based only on Secretary Pompeo's mandate, of course, because other than the Chair, no commission members had even been named. Well, first, primarily was charged that the real purpose of Secretary Pompeo's Commission on Unalienable Rights is to deprive people of rights, particularly the LGBTQ community and other minorities, and a majority, women, to deprive them of their rights. That was supposedly our secret intention.


      I heard this view repeatedly during the five or so trips that I was obliged to make to Capitol Hill to explain the Commission on Unalienable Rights to senior staffers, and the House and the Senate, and appropriations committees, and foreign relations committees, and to meetings with individual representatives as well. In fact, one representative, in a meeting in one of the member's offices in the House, leaned in to me over a table, wagged his finger and said, "You and your Secretary have no idea the damage you are doing to the cause of human rights. You have no idea how you are playing into the hands of the Russians and the Chinese."


      Why did he think that we were playing into the hands of the Russians and Chinese? Because of the Secretary's direction that we reground America's commitment to human rights in America's own traditions and commitments to the principles that our country laid out in the Declaration of Independence, and the manner in which we instantiated the Declaration of Independence through the Constitution.


      Now, it turned out that this member of Congress who style himself quite a knowledgeable fellow revealed himself to be entirely unaware of the spirit in which the Universal Declaration of Human Rights was drafted and approved. So I reminded him, to his consternation, that while the UDHR was being drafted, distinguished French philosopher Jacques Maritain was asked by the United Nations to convene a group of philosophers and public policy specialists, other sorts of intellectuals from around the world, the West, but also from India, from China, from the Muslim world, to see whether it was even possible, reasonable to expect that nations and peoples, different civilizations could reach any kind of agreement about human rights such that a universal declaration could be affirmed.


      Maritain produced a 250 page or so published symposium with contributions, probably two dozen or so contributions. In his introduction, he summarizes the conclusions. The first conclusion was it is possible to find a broad consensus on a small number of core principles that apply to all human beings everywhere. However, it is unreasonable to suppose that different nations and different peoples will justify those core principles on the basis of the same arguments because they come from different traditions.


      So what was to be hoped for and encouraged was that different peoples and different nations would look to their own traditions and find the moral, philosophical, religious resources within their own traditions to justify this small set of core principles. In other words, what Secretary Pompeo had asked the Commission on Unalienable Rights to do was entirely consistent with the spirit and the—you'll all, I know, allow me to use this term—the original understanding of the Universal Declaration of Human Rights. And it was the critics who were betraying, in a variety of ways, the original understanding and the proper understanding of the Universal Declaration of Human Rights.


      Well, so much for the early criticism. The Commission was very fortunate that Secretary Pompeo appointed Mary Ann Glendon to be its Chair. Bob mentioned that I come from -- that I do direct the policy planning staff. The Commission, as an institutional matter, was housed within the Secretary's policy planning staff. As director of the policy planning staff, I served as the Executive Secretary of the Commission. I was a member of the Commission. But our Chair was Mary Ann Glendon, a name, I'm sure, known to many of you.


      Mary Ann, at age 80, just retired as the Learned Hand Professor of Jurisprudence. Mary Ann had also been, actually, the mentor to one Michael R. Pompeo when he was a student in the early 1990s at Harvard Law School. And Mary Ann was the perfect person to be the Chair of the Commission. Why? By virtue of two books that she had written.


      In the early 90s, she published a book called Rights Talk, which was a critique of the abuse of the language of human rights within the American context. The expansion and proliferation of rights, she argued, empowered people to make claims that their particular -- were used by people to make claims that their particular policy preferences were actually, in the way of rights, universal, objective, and necessary. She believed that this was a threat to democracy and actually undermined commitment to the core rights that are so deeply entrenched in the American constitutional tradition.


      So Mary Ann acquired a reputation as a critic of rights. Sure enough, in the early 2000s, she published a book called A World Made New, which was a celebration of the Universal Declaration of Human Rights and Eleanor Roosevelt's role in its drafting and the vote in favor of it at the United Nations. This confused people. Now Mary Ann seemed to be a champion of rights. Which was the true Mary Ann Glendon, the critic or the champion?


      I'm sad to report, very few people, it turns out, are capable of appreciating that it's the very same Mary Ann Glendon who is a champion of rights, human rights properly understood, and a critic of their abuse. So beyond that, beyond her intellectual acumen, she's a wonderful person, highly diplomatic and yet firm. She put together a Commission, which was characterized as a group of religious fanatics, I being one of them, Mary Ann being another one. We had a Muslim. We had Jews. We had Christians, Catholics, and Protestants. We even had a non-believer or two.


      So why were we accused of being religious fanatics? For the strange and paradoxical reason that we all agreed in religious freedom. In the old days, the proponents of religious freedom were thought to be defenders of secularism. That was never entirely right, but never mind. Today, the strongest defenders of religious liberty are thought of as religious fanatics. Again, never mind that the data show that countries that protect religious liberty are more likely to protect the other small core of basic principles that we have found in the Universal Declaration of Human Rights.


      We went about our business from October through to late June, early July, when we issued our final report which the Secretary presented to the world on July 16th in a rousing speech in Philadelphia at the National Convention Center.


      Let me say something about the structure and content of the report. We begin with an introduction, which more or less discusses the Secretary's mandate, discusses the crisis which I've already described, and articulates the spirit in which we are undertaking this project. And what is that spirit? Well, first, our aim is to invite a range of readers to further conversation about the distinctive American tradition of rights. Our aim is to inform the Secretary's understanding, inform the understanding of our colleagues at the State Department, inform the understanding of fellow citizens, and enable our friends, allies, and partners around the world to better understand America's distinctive rights tradition.


      To that end, I should throw in that we have translated the report into, I think, eight foreign languages, starting with Chinese, Russian, Hindi, Arabic, and Persian. And we've also posted on our website a page called Classics of Freedom and Democracy, in which we present sources that we drew upon.


      The first major part of the report does deal specifically with rights in the United States. We begin with the multiplicity of traditions that converge in the formation of the United States. The three largest are, of course, the biblical tradition, the sometimes called civic republican tradition with roots in classical political philosophy, and what I prefer to call the modern tradition of freedom. Some people call it the liberal tradition. But I think we remain accurate to call it the modern tradition of freedom, which starts from the proposition seminally stated by John Locke that human beings, by nature, are free and equal.


      So we discussed the multiplicity of traditions, the three main ones. We offer a short reading of the Declaration of Independence. We unpack what is meant by unalienable rights, once referred to as natural rights. And there are important philosophical discussions to be had. But the most important thing to know about unalienable rights is, one, they're the rights that are inherent in all persons, that the most basic of them are life, liberty, which includes property as many of you know for the Founders, the pursuit of happiness, that is the ability to make the big decisions about your life for yourself, and that these pre-exist government, and that the purpose of government, and the purpose of the positive laws that governments enact, is to ensure that these rights are protected.


      In this first part of the report, we also look at the Constitution, which is the American charter of government. It's the vehicle for securing our rights consistent with the Declaration. So we emphasize the importance of limited government and government grounded in the consent of the people to the protection of individual rights. And we look at what will be familiar to all of you, the structure of the document, as well as the first ten amendments to the Constitution. It's different ways of protecting rights.


      We examine Lincoln's recovery of the Declaration. We look at post-Civil War reforms in which, in our judgment, the implications of America's original promise come to be understood better and better, first with the movement to secure the right to vote for women up through the Civil Rights movement. We also discuss the incorporation, mostly by means of legislation, of social and economic rights that took place in the middle of the 20th century, starting primarily through FDR and the New Deal.


      I don't want to talk to long. Let me jump to the second part of the report which deals with the Universal Declaration of Human Rights. And we've already touched on this matter. We do something fairly unusual these days in the report. That is to understand human rights, we actually read the document that launched the modern post-World War II human rights project. Our critics accused us of ignoring treaties, ignoring the whole development of international law, or discounting it, or attempting to rewrite it. None of that was true.


      Partly it's not true because—I should have mentioned this before—part of our mandate from the Secretary was to stay on the level of principle and not attempt to resolve difficult policy questions. One would be, are you in favor of this treaty or that treaty? Should it be extended in this way or that? Should this provision of international law be implemented in this way or that? This was explicitly not our task. Our task was to describe the framework within which we should be thinking about those kinds of questions, those kinds of problems.


      So it wasn't so much that we were ignoring treaties, covenants, agreements, developments in international law. We weren't assigned to that. The real problem is that so many people engaged today in human rights are ignorant of the Universal Declaration of Human Rights, have forgotten its purposes, have not read it carefully. So we attempt to do that.


      And you could say that we attempt to do in international law what so many people associated with The Federalist Society have done successfully in the area of constitutional law, which is call constitutional law back to the Declaration of Independence, which is not actually a part of positive law, even as it articulates the principles that inform our Constitution, and the Constitution, its original meaning, its original understanding. So we have, in a way, begun the enterprise of returning to the Universal Declaration of Human Rights.


      I'll just make a few brief observations about the UDHR, America's relationship to it, say something about new challenges, and then we'll welcome questions. The Universal Declaration of Human Rights is by design short and austere. It's short and austere for the reasons I've already mentioned, that Jacques Maritain lays out in his introduction to the 1948 symposium. If there was to be agreement, and it was very important that there was agreement in 1948, one, you would have to limit yourself to a small number of principles. It was to be expected that the justifications would differ.


      The Universal Declaration of Human Rights contains both what we would call -- what we call civil and political rights, and social and economic rights. But it does not say in the Universal Declaration -- it is well accepted that the Universal Declaration must be read as an integrated and interlocking whole—so it's language from our report—which is what we believe, by the way, about the Declaration of Independence and the Constitution. You can't simply remove a provision from the text, from the logical structure of these documents and hope to understand its significance.


      So the document contains both civil and political rights, and social and economic rights, but they're treated somewhat differently. The civil and political rights are generally and for the most part presented as absolute or nearly absolute. The document is clear. No one—that's its language—no one shall be subject to slavery, torture, arbitrary arrest. The document also has a fair amount of flexibility, an understanding that its principles are necessarily going to be implemented in different ways in different societies.


      So for example, everyone, the document proclaims, is entitled to a fair trial. Well, what amounts to fair? Well, that's going to be debated, inevitably. It's the work of lawyers in different lands. But it's to be expected that it is not to be regarded as an outrage. Within the United States, we have jury trials, and in Europe, they don't. It's expected that there will be a reasonable pluralism in the implementation of these principles.


      And I also wanted to emphasize that social and economic rights, the enumeration of which begins, I think, in Article 22 of the UDHR, are to be implemented in accordance with the organization and resources of each state. That's a very different formulation from no one shall be subject to slavery, torture, or arbitrary arrest. In other words, the document understands that there is, of necessity, considerable more flexibility in the meaning and implementation of social and economic rights.


      I'm going to jump to the third substantive part and just offer a few words about it. In that part, we emphasized both. The foreign policy in the United States has always been, in one way or another, has revolved around freedom. And this was true long before the term human rights was coined. But it's only that the -- American foreign policy has always revolved around rights, but only at the end of World War II was championing human rights thought to be a part of America's commitment to protecting freedom and talk about that.


      And we also enumerate a variety of new challenges to rights. Unfortunately, all the old ones remain, but new ones have emerged. One new challenge is—I've alluded to this—the failings of human rights organizations. Another is the rise of the Chinese Communist Party. A third is the advent of extraordinarily powerful new technologies—artificial intelligence springs to mind—and then especially the combination of new algorithms for surveillance and control in the hands of a communist authoritarian power like the Chinese Communist Party.


      And then in a concluding section, we lay out twelve final observations on human rights and the distinctive American tradition. And here, I'm only going to mention one. It's the last of them. We call it the importance of seed beds of human rights. And that's the idea, that it's an error to suppose that the work of human rights is exclusively the work of lawyers, and diplomats, and foreign affairs, and scholars.


      Crucial to the great post-World War II human rights project is forming communities, educating our children, cultivating young men and women who understand our political tradition and who acquire a commitment to human rights through their education, through the forms of government under which they live, seeing how political institutions respect each individual without any qualification.


      So looks like I've spoken for about half an hour. I hope I've offered a few remarks to provoke questions. And I will stop there.


Nick Marr:  Thanks very much, Peter. So we'll open the floor up to questions now. We've got some questions lining up. But Bob, I'll give the floor back to you for the first question.


Bob Barker:  Okay, thank you. Thank you very much, Dr. Berkowitz. That was a very far-reaching analysis in half an hour. I can't believe you did that. You covered quite a lot of area. And one of the things in particular that I was sort of interested in is your concept of the difference between the binding thoughts about what international human -- I won't call them binding, but the mandatory provisions of the international human rights law that was embodied in the first part of the U.N. Declaration, and then the subsequent parts.


      But it seems that a lot of the criticism that's come from Human Rights Watch and others has been based on the fact that -- I'm not exactly sure, but they're saying that the Commission -- I guess somebody said the Commission had proposed abandoning those binding treaties on human rights in favor of the vagaries of government preference. But I think that's exactly the opposite of what Mary Ann Glendon said, when she said recently that human rights law is a very old experienced-based insight that goes all the way back to antiquity. She said if there are no rights that exist independently of the sovereign, then we are in a world where the strong do what they will and the weak and the vulnerable suffer the consequences.


      So if I'm reading it right, she's saying exactly what the critics are saying, which is that there is no sovereign-based definition of human rights. What are they trying to get at when they criticize the Commission for that reason? It's unclear to me.


Dr. Peter Berkowitz:  Yes. So this was -- Human Rights Watch leveled its criticism 12 months before our report came out. And they kept to the criticism after the report came out, even though the criticism is not in any way substantiated by our report.


      Here's what Mary Ann Glendon had in mind, which is, I believe, the proper understanding of the human rights tradition going back to its antecedents and classical antiquity. Unless there are rights that are independent of political judgment -- sorry, I should say political preferences, that are independent of the enactments of this state or that state, there's going to be no standard to appeal to when this sovereign or that sovereign crushes human dignity.


      The long tradition of human rights thinking has always believed that there are such standards, however difficult they are to ultimately prove, to ultimately establish. So we see such an appeal in the American Declaration of Independence. We hold these truths to be self-evident. In other words, the king didn't give us these rights. The Virginia Legislature is not going to give us these rights. They may protect or secure them. They exist independently of government actions.


      However, we enact law. We create governments and we enact laws which have, as their purpose, securing these rights. So our report is entirely consistent with that, those two crucial steps which are laid out in the American Declaration of Independence, preexisting rights that adhere in all persons with the understanding that the purpose of government is to secure those rights. The report in no way suggests that treaties and other covenants and other forms of international law are insignificant to be ignored. But it wasn't our purpose to examine those, to elaborate those, although we do discuss them. We discuss the relationship between the UDHR and treaties and covenants.


      We simply say—and to this, it appeared that Human Rights Watch could not bear—that a claim does not become a human right because a law professor writes a scholarly article saying that it should be, or because Human Rights Watch champions it, or even because a majority of countries believe it should be a human right. It certainly doesn't become a human right from the point of the law for the United States, that we carefully enumerate the principles that should govern recognition by the United States of claims about new rights.


      For example, I'll make one final point here because I could go on a long time with this. As many of you know—you're experts in the field—a strange transformation of the meaning of customary international law has taken place over roughly the last 30 years, since the 90s. And there's a reason for that, but for another time. Customary international law used to mean what states do, generally and for the most part, and out of some sense of legal duty, although it may not be written down anywhere. And of course, we still don't have a final court of appeal on these matters.


      But over the last 30 years, law professors, especially in the United States, also in Western Europe, and diplomats have embraced the notion that the writings of professors on international law are, themselves, part of customary international law. And if enough professors agree on a principle, it becomes incorporated into human rights law. We certainly suggest that that kind of understanding has no basis in the Universal Declaration of Human Rights and the original understanding.


      So we in no way disparage the agreements into which the United States has lawfully entered. We in no way suggest that international law can be understood exclusively by reference to the Universal Declaration of Human Rights. We would do that no more than a reasonable person would suggest that American constitutional law understood, only by reference, the Declaration of Independence.


      We merely argue that just as the great American constitutional tradition can't be properly understood without reference to the declaration, we insist that the great post-World War II human rights project can't be properly understood without appreciating the original understanding of the UDHR. I'll stop there.


Bob Barker:  One thing I wanted to mention, I think that before I ask you a question that might take you afield from something that might be accepted by the State Department, I just wanted to make sure that those are your personal comments and thoughts on it. But I have appreciated, very much, hearing those.


Nick Marr:  All right, so we'll go to --


Bob Barker:  -- Are there other questions?


Nick Marr:  Yeah, we'll go to our audience questions now. We've got two in the queue.


Bob Fitzpatrick:  Hi. This is Bob Fitzpatrick from D.C. First of all, I just want to thank you, sir, for your service to the country and your service to the State Department. And just indirectly, my compliments to your Secretary of State for what he has done in the last week or two with some of the positions that he has taken.


      I think I hear what you're saying is that the approach to this, in part, is an approach from that of natural law—and I have absolutely no quibble with that whatsoever—and that human rights, for us Americans, U.S.A.-ers, includes what the Congress may have enacted through reconstruction acts, what the Supreme Court may have done in same-sex marriage and Bostock last term with respect to LGBTQ.


      But if Albania, just to pluck a country out of the air, has not in its treaties or laws or its highest court incorporated those same human rights that our country has, then just because a bunch of law professors say that this is now customary human rights law, I gather the report is saying, "No, no, no. Each country on its own, by treaty, by law, whatever, adopts its own human rights." So that's kind of a question I'm asking. Is that what you're saying?


      And then my quick second question is, does the report -- you spoke quite a bit about slavery at the start. And as you know, the Uyghurs, the Muslims in Northwest China have gotten the attention, thankfully, of our State Department. Are they, the Chinese, in violation of a recognized human right against slavery? And maybe I'm just professing my ignorance. But those are my two thoughts, sir, and I'll shut up. Thank you.


Dr. Peter Berkowitz:  Not at all. Thank you for your words about the Secretary and thanks for your question.


      Your second question is the easier question. The People's Republic of China, governed by the Chinese Communist Party, is far and away the most egregious violator of human rights on the planet today. And the imprisonment and reeducation camps of more than a million Turkic Uyghurs is probably the single most egregious violation of human rights. In my judgment, there's little doubt about that.


      But the abuse of human rights in China, the traumatic abuse of human rights certainly doesn’t end with the Uyghurs. There are also six million Tibetans who are being deprived of life in accordance with their beliefs and customs, the four million Mongolians in Northeast -- ethnic Mongolians in Northeast China, and of course, the 70 million Christians or so who suffer persecution because of their religious beliefs. And then there's the massive surveillance state that the Chinese have created, which also violates human rights. And when I say violates human rights, I mean the most basic of rights which are laid out in the Universal Declaration of Human Rights. That's to the second question.


      To the first question, the Universal Declaration of Human Rights, of course, is a realistic document. Its drafters and its ratifiers understood that states will adopt different laws. Just because a state calls X a right doesn't make it a human right in the UDHR's sense of the term. And this is slightly -- I must distinguish between implementing the core human rights in different ways and disregarding them or violating them, adopting laws that are inconsistent with them.


      So UDHR recognizes, one, there will be legitimate pluralism in interpreting human rights, and that some states will violate human rights. Then the question arises, maybe one of the oldest questions of the book in foreign affairs, is what happens when a state is unjust to its own people? This question has arisen as long as the world has been divided into separate political units.


      In our age, the United States has a variety of tools at its disposal to deal with countries that are abusing the rights of their citizens. First, and we really shouldn't belittle the importance of this one, the United States leaders can regularly, routinely, loudly, proclaim the obligation of all states to recognize the fundamental human rights of their citizens. We shouldn't forget how much importance the dissidents in the Soviet Union attached to the speeches of Ronald Reagan in the early 1980s. Natan Sharansky has written, one of the greatest of the dissidents, of how hearing about those speeches provided great comfort and encouragement to those being held in the gulags.


      But beyond speeches, we also have -- we can educate. We can provide various kinds of foreign aid to those who stand for freedom. We can meet with dissidents. We can impose sanctions. We have a variety of tools in the diplomatic toolbox to deal with human rights abuses. And we need wise statesmen and stateswomen to use those tools effectively. So why don't I stop there.


Nick Marr:  So we'll go to our next question now.


Caller 2:  Yes, thank you. I've read the report. It's excellent.


Dr. Peter Berkowitz:  Thank you.


Caller 2:  It's very timely for us in Texas. And I'm sure you're familiar with the -- our U.S. Department of Justice has a criminal division for human rights and special prosecutions headed by Eli Rosenbaum. And you correctly note that the UDHR is not positive law.


      But I'm sure you're aware of the universal -- the Covenant on Civil and Political rights, which was ratified in 1992 by the United States. It took quite a long time since we authored it post World War II, but finally once the Soviet Union fell, we ratified it. And in the ratification document, it commits the United States to ensuring competent actors in every state of the United States to enforce that treaty as land. And as per our U.S. Constitution, treaties become part of the supreme law of the land.


      Now, I spoke to Eli and I've written to the United States Department of Justice Criminal Division and asked them to do what's -- to enforce this law. And to my great dismay, I get a letter back from the U.S. Department of Justice that says that, well, they're part of the Executive Branch. Express my views to my congressman.


      So my question is, is human rights just something that our State Department and federal government uses as a weapon to gain leverage or to beat up on foreign nations such as China, while at the same time, in our own homeland, allowing our -- us to not have any rights?


      In Texas, the Executive, Judicial, and Legislative Branch are all of the opinion that we do not have unalienable rights that are secured by any law. So I just would like to get your comments on the Universal Declaration of Civil and Political Rights, and whether or not the State Department sees this as an issue that, for foreign policy matters, we need to enforce in our own country?


Dr. Peter Berkowitz:  Thank you. Here's I think the best way for me to answer that question. Secretary Pompeo's creation of the Commission of Unalienable Rights and the direction that he gave to it, I think, makes clear that he wanted this Commission to be about educating Americans also, not just him, not just members of the State Department, but all Americans about their rights traditions, what that implies, that our constitutional teaching is that all Americans are endowed with certain unalienable rights, and that our tradition teaches that government in general, but certainly state governments in particular, have an obligation to secure those rights through the positive law, including treaties that we bind ourselves to.


      So the answer is yes, Secretary Pompeo was concerned about the understanding of unalienable rights here at home. This document is not aimed just at reaching abroad. It's aimed at instructing and educating Americans about their heritage. And by the way, I haven't mentioned that to this point, but I should have already. Our report in no way sweeps under the rug the grotesque abuses of human rights in the American tradition, starting with slavery.


      But what we do insist upon is that the American tradition is best understood as a struggle over decades, over centuries, to bring political life in the United States more into harmony, more into alignment, with the golden promises of the founding of the Declaration of Independence and the Constitution. We emphasize that this is an unending task to bring political life into harmony with the original promise of rights. And Secretary Pompeo emphasized in his July 16th speech from last year—I urge you all to return to it—that the cause of human rights is indissolubly bound up.


      Remember, July 16th, the country was convulsed by riots across the country -- I should say both peaceful protests and violent riots across the country that Secretary Pompeo insisted that the cause of human rights was dependent in its long-term health on America returning to its best traditions. So with this document alone, I think the State Department under Secretary Pompeo has demonstrated its commitment to human rights and unalienable rights being understood, and through the understanding, better respected in the United States.


Nick Marr:  I think that's a great segue, Bob. I'll give the floor to you. I think you had a final question.


Bob Barker:  Yes, Peter. I know that we're in the middle of a transition of administrations now, and I might ask for a few words on what's going to be happening with the work of the Commission. I'm sure all the people on the call would be interested in that.


Dr. Peter Berkowitz:  Oh, yes. Thank you for so much for the opportunity to let everybody know. First, that in December, Secretary Pompeo received a letter from the head of Nahdlatul Ulama. Nahdlatul Ulama is the largest Muslim organization in the world, 90 million members strong, headquartered in Indonesia, a country with the largest Muslim population in the world.


      And this letter thanked the Secretary for coming to Jakarta in October, for presenting the report of the Commission on Unalienable Rights. In the letter to Secretary Pompeo, the general secretary of Nahdlatul Ulama said, "We embrace your Commission's report as our own. It captures our understanding of human rights. It captures our understanding of the need to agree on core principles and to reason from different traditions. It captures our understanding of essential human dignity and reasonable pluralism in implementing core principles." This was a kind of culmination for the Commission on unalienable rights.


      The Secretary concluded that our work as a Commission, as a formal State Department Commission, had come to an end. He's just recently announced that the Commission will terminate as an official State Department entity tomorrow. But the work of the Commission will continue.


      One of our members, Paolo Carozza, who is a Professor of Law at Notre Dame University, also a former student of Mary Ann Glendon, is at the same time the Director of the Kellogg Institute at Notre Dame University. This is the Interdisciplinary Center for the Study of International Affairs. And the Commission's report, translation into eight languages, accompanying primary source documents, also translated, will go up on the Kellogg Institute at Notre Dame's website.


      Moreover, Paolo intends to convene a conference late spring, maybe late summer, early fall, depending on how the world manages to beat back the pandemic. But we will host a conference, an international conference, the purpose of which is to figure out next steps for carrying forward the work of the Commission, which so far has been focused on understanding properly the American tradition and understanding properly the Universal Declaration of Human Rights. The question will be how to go forward. Maybe we'll take a more practical turn.


      However, I want to conclude by saying that sound practice is informed by sound understanding, and the work of education about the American Unalienable Rights Tradition and the post-World War II human rights project, itself, educating about those remains an enormous task. But it's an enormous task to which the members are very much committed and will continue with after the Commission's termination.


      Thank you all very much for this opportunity.


Bob Barker:  Thank you.


Nick Marr:  Thank you, Dr. Berkowitz. Any closing remarks, Bob?


Bob Barker:  No. I think that's very helpful, and I'm very grateful for all the attendees, and also Dr. Berkowitz for taking the time, particularly at the end of the administration, to provide us with this insight and this hope that the story goes on.


Nick Marr:  Yes, thank you. And on behalf of The Federalist Society, I'll thank you, Dr. Berkowitz, and Mr. Barker, for calling in, for participating, and the benefit of your valuable time and expertise this afternoon, also to our audience for calling in, your good questions. As always, be keeping an eye on your emails and our website for announcement about upcoming teleforum calls. We have one coming up in about an hour, same number, so hope to see you there.


      All right, thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.