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To Russia, With Love

The draft report by Secretary of State Pompeo’s Commission on Unalienable Rights has the Kremlin dancing a collective Barynya of glee. The current US administration and President Putin already share the parochial view that rights are derived from and informed by God rather than a person’s inherent dignity. This fact alone should concern anyone committed to safeguarding the promise of the Universal Declaration on Human Rights. But the Commission’s flawed and contradictory report augur a deepening of commonalities that, if adopted, will only strengthen the Kremlin’s longstanding effort to undercut the international human rights system.

The Commission laudably concludes that the United States must “vigorously champion human rights in foreign policy.” Yet, the report unflinchingly endorses President Trump’s abdication of US leadership at the UN Human Rights Council. Any hoped-for championing of human rights cannot be forthcoming when the United States has abandoned a frontline in this battle. In the meantime, Russia is jockeying for a seat on the Council during its upcoming 2021-23 term, promising to use this podium to safeguard rights abusers by preventing “the use of human rights issues as a pretext for interference in the internal affairs of sovereign States.

The Commission finds that the United States’ “power of example is enormous” in promoting human rights. But in proffering this insight, it turns a blind eye to an administration that is disparaging and militaristic in its response to protests for racial equality and justice at home, singularly committed to denying human rights to migrant children, transgender people, Muslims, and others, and content coddling racists and authoritarians, including Mr. Putin himself. This deafening silence substantiates the Kremlin’s assertion that the human rights situation in the United States leaves much to be desired…The systemic issues of the American society get only worse.” Admitting this stark reality would rightly acknowledge the administration’s glaring contempt for the very norms the Commission purports to clarify; it would also serve to refute the charge by Mr. Putin and others that the United States applies a “double standard” to human rights.

The Commission correctly observes that human rights are “interdependent and indivisible.” But the bulk of its report is dedicated to undercutting this premise. The Commission promotes selective “unalienable rights”, while dismissing other “lesser” rights alongside “new” rights that might serve to protect emerging vulnerable groups, including disabled and elderly persons. Mr. Putin and others will be quick to latch onto this formulation, as it conveniently buttresses their own rejection of “new” rights like basic equality and non-discrimination protections for the LGBTQ community.

Finally, the Commission concludes that states must be permitted their “independence and sovereignty…to make their own moral and political decisions that affirm universal human rights within the limits” provided by the Universal Declaration of Human Rights (UDHR). This formulation is troubling in three respects. First, the Commission imposes an “originalist” reading on the UDHR. Doing so impedes the scope of potentially protected rights and belies the document’s open-ended drafting, its evolutive history over 70 years, and the overarching obligation to interpret human rights texts to ensure their contemporary and practical effect.

Second, the Commission wrongly holds out the UDHR’s provision on rights limitations as the international gold standard. This view neglects the legally binding core human rights treaties that have grown out of the UDHR and that enshrine purposefully narrowed limitations clauses. Secretary Pompeo might be dismayed to learn that the UDHR would authorize sweeping limits on the right to freedom of thought, conscience and religion “for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare.” In contrast, the binding International Covenant on Civil and Political Rights (ICCPR) “does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally.” Only one component part of this broad right is subject to limit—the freedom to manifest one’s religion or beliefs—and then, only where “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

Freezing human rights as they were in 1948 and advocating a sweeping limitations clause to restrict those rights derides the international system’s progress over the last 70 years and panders to states like Russia that seek to circumvent robust human rights obligations. Lastly, and perhaps most alarmingly, by validating state sovereignty as a shield against international scrutiny of human rights conditions, the Commission muddles longstanding practice that human rights is a matter of international concern, and in turn lends credence to Mr. Putin’s mantra that human rights are used to interfere in internal affairs and violate state sovereignty.

Unless withdrawn, the Commission’s report promises to hinder its stated charge of helping U.S. foreign policy “to promote individual liberty, human equality, and democracy.” In the process, it is liable to undermine the protection of all rights, including those framed as unalienable, and throw the entire international human rights project under the stomping feet of Mr. Putin and his apparatchiks.

 

Robert C. Blitt is a professor of law at the University of Tennessee College of Law, Knoxville.

 

Suggested citation: Robert C. Blitt, To Russia, With Love, JURIST – Academic Commentary, July 30, 2020, https://www.jurist.org/commentary/2020/07/robert-blitt-to-russia-with-love/.


This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.


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