The following is a guest post by Dr. Ryan M. Welch. Dr. Welch is Assistant Professor at the University of Tampa who specializes in human rights institutions and is a former member of the Maricopa County Human Rights Committee.
Recently, the State Department created a human rights commission called the Commission on Unalienable Rights (hereinafter: the Commission). Like an oil industry lobbyist heading the Department of Interior, a climate skeptic atop the EPA, and a charter school advocate running the public education department, most believe this another cynical instance of an institution being used to dismantle its own raison d’être . Pompeo’s statements and the appointed chair’s research agenda suggest those worries are well-founded. Specifically, most worry that the Commission will be used to redefine rights through a natural law lens that will limit LGBTQ+, reproductive, social, and economic rights. I tend to agree. Given the adminstration’s relatively poor human rights record, it is incumbent upon them to prove us wrong. If it wishes to do so, the current Commission can do what other domestic human rights institutions do when they are serious about human rights – comply with the Paris Principles. Doing so would not only better protect human rights, but also enhance the U.S. international standing. Below I outline how the Commission as currently conceived stacks up to the Principles.
Human rights commissions exist around the world and are a subset of a more general domestic institution called national human rights institutions (NHRIs). NHRIs are domestic institutions created by the government with an explicit mandate to protect and promote human rights. One hundred twenty-four countries already have an NHRI, 67 of which are human rights commissions. A deeply networked international regime exists around these institutions with guidelines to maximize effectiveness called the Global Alliance of National Human Rights Institutions (GANHRI). If the current administration is serious about creating a legitimate human rights commission, it need look no further than the Paris Principles to guide design.
The Paris Principles are a short document drafted by existing NHRIs in 1991 in an attempt to define and standardize NHRIs, though left sufficiently vague to give countries autonomy in how they achieve the overarching goals. The Principles consist of three main subsections: (1) competence and responsibilities, (2) composition and guarantees of independence and pluralism, and (3) methods of operation. Though the Principles purposely give countries discretion in how they design their own NHRI, they offer a set of standards by which we can judge the strengths and weaknesses of the administration’s current Commission.
A State Department Charter establishes the current Commission. The Paris Principles suggest that NHRIs be established through either constitutional or legislative text. Doing so protects the NHRI from government dissolution in the event the NHRI illuminates inconvenient truths about the administration. Another first step that could be improved is the Commission’s reporting. The Paris Principles recommend reporting to the government, the legislature, and other competent bodies. At this point, the Commission only reports to the Secretary of State. Lastly, the current Commission’s charge includes advice and recommendation concerning the promotion of human rights in foreign policy. While important, the Paris Principles suggest an effective NHRI would also ensure domestic legislation conforms to current international obligations; report to current treaty-monitoring bodies to which the U.S. is a party, while also encouraging the ratification of human rights treaties the U.S. has yet to ratify; and raising awareness of human rights using education programs and press campaigns.
The Charter spends more time on how to determine Commission membership than any other aspect of the institution. The proposed membership composition mirrors nicely the types of commissioners recommended by the Paris Principles – legal scholars, non-governmental organization (NGO) members, and former government officials such as judges – in an effort to “represent diverse points of view.” The composition could lead to the societal pluralism recommended by the Paris Principles. However, while the Commission’s composition looks good on paper, many worry about the political bias of the appointments. The Chair, Mary Ann Glendon, has multiple times spoken out against marriage equality and women’s right to choose. Another member, Christopher Tollefsen, has argued against contraception based on Catholic dogma (though he is against torture and the death penalty and holds views counter to the administration such as Americans should not be allowed to own assault rifles). Fortunately, the Paris Principles recommend a way to decrease the probability of politically biased commissioners — elections, rather than appointments.
Unfortunately, the current Commission falls short in the independence mandate. It receives all of its funding from the State Department making critiques of the State Department’s foreign policy potentially costly. Further threat to the Commission’s independence stems from the fact that the Secretary of State can dismiss any Commission member at any time before their term expires. Confusingly, the Charter lists two different maximum terms (one and two years), both of which fall short of the recommended three to seven-year term from the Subcommittee on Accreditation (the body that uses the Paris Principles to assign grades to the world’s NHRIs).
The new Commission complies well with much from the Paris Principles’ Methods of Operation section. It sets regular meeting times of once a month, explicit rules for working groups/subcommittees, and a charge to work with civil society groups. In order to fully comply with the Paris Principles, though, the new Commission would need to “hear any person and obtain any information and any documents necessary for assessing situations falling within its competence.” The Charter is silent on this front.
In contrast to former Secretary of State Tillerson’s view that human rights often impeded foreign policy goals, Secretary Pompeo has decided to bring human rights to the foreign policy fore. Most, quite understandably, view the new institution with healthy skepticism (also here, here, here, here). But it also offers the U.S. and its residents an opportunity. The U.S. is far from the first country to create a toothless NHRI only to see its power grow counter to its designer’s intentions to do its bidding. For example, Korea’s NHRI complies with the Paris Principles much more than its original design would have thanks to NGO activism. In another example, Suharto established Indonesia’s NHRI immediately upon assuming power. Although initially weak, it was to become integral to Suharto’s ouster. If insisting the Commission on Unalienable Rights adhere to the Paris Principles results in a legitimate institution, it could lead to real benefits. First, one of the most common criticisms by other countries in the United Nations Universal Periodic Review is the United States’ lack of an NHRI. This Commission combined with changes that align it more with the Paris Principles would allow the U.S. to submit to the Subcommittee on Accreditation of the Global Alliance of National Human Rights Institutions. Not only would a fully compliant NHRI reduce criticism, but it would allow the U.S. to participate in the conferences that shape the international human rights dialogue. Perhaps more importantly, research by myself and others show that NHRIs can help protect human rights in the country in which they operate. By taking the Paris Principles seriously, the U.S. stands to enhance its international standing and protect human rights; outcomes that behoove both governmental officials and everyday people alike.