Introduction: Returning to First Principles on Human Rights

Introduction: Returning to First Principles on Human Rights

The Heritage Foundation has become increasingly concerned about the harmful evolution of international human rights. This evolution diminishes their credibility as truly universal norms, prospects for enforcement, and justice for victims of the worst violations. It also threatens Americans’ understanding of fundamental, natural rights that form the foundation of our jurisprudence and system of government. To push back, we convened this series of essays on the First Principles on Human Rights featuring noted experts outlining the threat and defending the special character of natural rights and fundamental freedoms.

The Founders’ Understanding of Equality and Natural Rights

America did not invent the idea of human rights, but no nation more closely incorporates those ideals into its founding and character. The notion that all men are created equal and are endowed by God with inherent, natural rights separate from government was present at the very birth of our nation. The Declaration of Independence references the “Laws of Nature and Nature’s God” as the standard against which governments should be held accountable. The revolutionary idea that government should act as the guarantor, not the grantor, of unalienable rights (among them life, liberty, and the pursuit of happiness) is embedded in the U.S. Constitution.

From this American perspective, natural rights do not come from a monarch or a president and are not the privilege of the wealthy or the educated. The proper role of government is to establish the rules and policies to ensure that Americans can exercise their inherent unalienable rights and freedoms. It is no accident that the first amendment to the U.S. Constitution is expressly aimed at defining and protecting these rights.

Dignity, Equality, and Unalienable Rights in International Law

One of the most lasting and valuable gifts that America has provided the world is leadership that led to universal consensus that all human beings possess unalienable rights.

After the staggering human toll of World War II and the horrors of the Holocaust, world leaders began a remarkable project in 1948 to identify and protect universal human rights. Eleanor Roosevelt served as chairwoman of the committee that drafted the Universal Declaration of Human Rights (UDHR). She forged a consensus among representatives from diverse countries, political systems, cultures, languages, and religions. The commission included a Chinese Confucian; a Lebanese Catholic; a Soviet Communist; an Indian Hindu; and members from Australia, Iran, and the Philippines. All 58 member states of the U.N. General Assembly met regularly in some 150 meetings to negotiate the document. The UDHR passed with 48 members voting in favor, eight members abstaining, and two absent. It recognized “the inherent dignity and of the equal and inalienable rights of all members of the human family” as “the foundation of freedom, justice and peace in the world.” This revolutionary statement on human dignity, equality, and rights clearly echoed the Founders’ natural law understanding.

International Human Rights and the Transnational Legal Process

Over the ensuing decades, however, this remarkable consensus has been challenged by a powerful new movement of sovereign and non-sovereign entities, including lawyers, academics, nongovernmental organizations (NGOs), activists, and U.N. officials who seek to “improve” on what was accomplished in 1948. In order to meet perceived new challenges, many of which are attributed to globalization, this movement asserts new rights and new interpretations of legally recognized rights. However, efforts to promote the “evolution” of rights threaten to undermine the great and noble project in fundamental ways.

Over the past seven decades, progressive activists have advanced a notion of rights that seek to guarantee benefits to individuals from governments or to assert rights to categories of people or to the broader community. These activists have managed to insert this language into various multilateral agreements. As noted by Secretary of State Michael Pompeo, the original 30 rights in the UDHR have proliferated into 1,377 rights provisions in 64 agreements. The new rights encompass a variety of matters, including rights addressing a clean environment, vacation, health care, sexual orientation and gender identity, and many other issues. These rights are often in tension, sometimes outright conflict. For instance, the recently asserted right to be free from offensive “hate speech” conflicts with the internationally recognized right to free speech. But as Pompeo observed, “More rights does not necessarily mean more justice.” Indeed, the proliferation of rights and the desire to advance all of them without preference has blunted efforts to advance internationally recognized rights. The more that there is confusion about what human rights are and insistence that all rights are equally important, the less likely it is that their universal nature will be respected.

Moreover, the proliferation enables governments to cynically deflect criticisms by pointing to their protection of other “rights.” For example, when confronted with evidence that they torture and illegally imprison their own citizens, repressive states such as Russia and China point to their constitutionally guaranteed rights to health care, water, education, or other benefits. Confusion and controversy over what human rights mean diminishes their credibility and prospects for greater enforcement.

Dr. Aaron Rhodes, in a paper written for the First Principles on Human Rights project, takes this debasement of human rights head on. He details how the international human rights movement, originally established as a project to define and protect individual rights, “has evolved to endorse a broadly expanded array of rights, including many that are profoundly inconsistent with the philosophical and moral foundations of the very concept of inherent, natural human rights.” He explains how these new “rights” represent a threat to individual human rights, drive rights proliferation, dilute attention to basic freedoms, clutter and politicize the international human rights agenda, and impair “efforts to identify and address violations of individual civil and political rights.”

Accountability is further undermined by activists bypassing the process of diplomatic negotiations and Senate ratification through which treaties are adopted. Yale law professor and former Assistant Secretary for Human Rights Harold Koh refers to this process as the “translation” approach. He writes that in the absence of “established legal rules that map perfectly onto the new and unanticipated factual circumstance…we can still make a good-faith effort to translate from the spirit of existing rules of law…to new situations. In time, those new rules can eventually enjoy international consensus and legal legitimacy.” However, when those translations lead to contested understandings, as they often do in the area of human rights, the result is to paint the patina of broad consensus on ideological agendas.

Historian John Fonte points out that this process is also a threat to national sovereignty. Unlike “international” law, which is negotiated between nation-states through treaties and agreements, transnational (meaning “across or beyond”) law reaches beyond national law, constitutions, and officials. “It is directed at the internal political affairs of nation-states and undertaken by both foreign and domestic non-state actors and by foreign states.” Even though states may never have expressly agreed to the obligations in writing, the binding character of these norms is nevertheless presumed based on their conduct.

Koh describes how coordinated insider/outsider strategies can promote compliance to new international norms “by resisting governments.” The outsider strategy of NGO activists filing lawsuits and complaints, combined with the insider strategy of embedding translations of international law within U.S. government bureaucracies, can lead a nation into “a pattern of sustained default compliance with international law that makes quick deviation from these rules far more difficult than casual observers might predict.”

Even some justices of the U.S. Supreme Court have cited international law in discharging their duty to interpret the U.S. Constitution. As Associate Justice Stephen Breyer has argued, “Human rights are more and more international.… What is at issue is the extent to which you might learn from other places facts that would help you apply the Constitution of the United States.” Fonte warns that this evolution places the legitimacy of domestic law under the scrutiny of international law rather than the U.S. Constitution.

Professor Jeremy Rabkin, in a paper written for the First Principles on Human Rights project, argues for an unapologetic defense of U.S. sovereignty and America’s process for treaty ratification. As he notes,

The traditional view of the Constitution, if we still attend to it, protects our system against overreaching by contemporary human rights advocates. This both protects Americans against distorting pressures from outside forces and leaves the United States in a better position to focus its international efforts against those governments that are, in American eyes, the worst abusers of human rights.

Where the Evolution of International Human Rights Is Leading

The consequences of complying with evolving understandings of human rights are most evident in the conflicting understandings of the right to life, freedom of speech, religious freedom, and equality and non-discrimination. The asserted reinterpretations of these rights have so radically transformed their original meaning as to challenge the Constitution’s protections of Americans’ rights.

As Professor Tom Finegan writes, this movement offers a revisionist account of personhood that excludes various human beings including the unborn, those who lack any significant level of consciousness, and those with profound intellectual disabilities. This new interpretation rejects the right to life of unborn children and endorses a right to abortion despite the absence of supporting language in the text of the UDHR or in the diplomatic history of 1948. Finegan calls upon pro-life states to reject faulty interpretations of treaties by rogue bodies and amend binding international human rights law. He warns that if states are passive toward or acquiescent to faulty pronouncements by treaty-monitoring bodies, those pronouncements could attain the status of customary human rights law. Failure to assert the correct understanding of treaties, he warns, will make adherence to genuine human rights increasingly impractical.

As attorneys Mike Farris and Paul Coleman write, this movement also seeks to limit free speech in the name of combatting “hate speech,” even though there is no universally agreed legal definition of hate speech. In the post–WWII debates at the U.N., liberal democracies fought against efforts by the Soviet bloc to justify censorship in the name of combatting fascism. But today, European nations and progressive NGOs want to create politically correct speech codes. The U.N. itself has launched a major initiative to combat “hate speech” spearheaded by the Secretary-General and supported by European nations and by Muslim-majority countries, which view it as a prelude to a global blasphemy law. The U.S. Senate, when it gave its advice and consent to ratifying the International Covenant on Civil and Political Rights, only did so after including a reservation that “Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.” But this reservation is regularly attacked by U.S.-based NGOs, human rights activists, and U.N. experts. Coleman and Farris urge the U.N. to adopt the U.S. Supreme Court’s standard, permitting speech to be restricted only if it is likely to incite imminent lawless action, not simply because it creates offense.

As Professor Daniel Philpott explains, New Natural Law Thought recognizes that no person, community, or government may interfere with a person’s practice of religion. The UDHR recognized this by protecting religious freedom in Article 18. However, revisionists argue that religious freedom (1) is indistinct from other rights such as freedom of expression and conscience, (2) is the product of modern Western power, and (3) should be drastically curtailed to benefit newly emergent claims for sexual orientation and gender identity. Philpott urges scholars, teachers, and religious leaders to teach natural law as a basis for human rights in general and religious freedom in particular. Natural law can contribute to greater consensus among states and citizens because it offers a justification that may be grasped through reason regardless of particular religious traditions.

As Professor Li-Ann Thio explains, including equality and non-discrimination in the UDHR and subsequent treaties was intended to protect individuals from mistreatment on the basis of characteristics such as race, ethnicity, sex, and religion. But more recently, activists have sought to force agreement on sexual orientation and gender identity in ways that potentially undermine freedom of religion, conscience, and speech. Thio urges a holistic view of rights, duties, and goods, as reflected in the UDHR, rather than a one-sided “balancing” process that privileges a certain ideology. Thio explains that attempts to create controversial “new rights” or standards that member states never agreed to will be counterproductive. Some states already consider the over-reaching of the U.N. bureaucracy in sexuality a form of moral neo-colonialism.

Finally, Professor Paolo Carozza, who served on the State Department’s Commission on Unalienable Rights, examines human dignity, the foundation of the universal human rights movement. He notes that the work of Eleanor Roosevelt, French philosopher Jacques Maritain, and their colleagues was to build practical consensus around a limited number of rights, like genocide, slavery, and torture, that are rooted in concrete experiences of human dignity shared across broadly diverse expressions of human culture. International norms should continue to be secured on the basis of human goods that are truly and widely held in common among diverse portions of the human family, he writes. In this way, international human rights will advance real human goods with universal social legitimacy. He urges policymakers to be cautions in the use of the concept of dignity in the law in ways that generate new rights or aggressively new understandings of rights. Claims regarding human rights to abortion, euthanasia, and assisted suicide may advance a particular ideological agenda, but lack universal consensus. Where there is disagreement, Carozza urges strong respect for pluralism and a proper regard for the relationship between national sovereignty and human rights. Rightly understood, sovereignty is not inconsistent with the idea of universal human rights. As the report of the State Department’s commission explains, “national sovereignty serves as the condition for human rights because it is typically at the level of the national political community that a people can best protect human rights.” Harkening back to the Founders’ understanding, he notes that states are “the main guarantors” of human rights. Sovereignty underlines the dependence of the protection of human rights on political order. “When a state asserts sovereignty as an excuse for committing or failing to address rights violations, the problem is not with the idea of sovereignty but with flawed exercises of it.”

Restoring Clarity to the Human Rights Discourse

Ten years after the adoption of the UDHR, Eleanor Roosevelt asked, “Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works.”

Respect for international human rights depends on the clear understanding of (1) the definition of human rights, (2) universal consensus around the legal norms that protect rights, and (3) respect for the sovereignty of states that guarantee those rights. The extent to which these three conditions are met will correspond to the individual’s ability to live according to his or her rights in small places close to home.

But the new rights movement challenges each of these three conditions. Therefore, supporters of human rights should prioritize and stand firm in defense of natural rights and freedoms. The State Department’s commission recommended that policymakers carefully consider how closely new rights claims are rooted in the rights laid out in the UDHR, their consistency with U.S. constitutional principles and American traditions, whether the United States and other nations have formally given their sovereign consent to the claimed rights, whether there is a clear consensus of support among the many cultures and traditions of the human family, and whether new rights can be integrated into the existing human rights rubric without harmful conflicts. Each of these considerations will help to ensure that human rights claims have the broad support necessary to justify their recognition as legal obligations.

As explained by Heritage Foundation scholar Dr. Kim R. Holmes:

The United States is uniquely situated to be the global leader on behalf of fundamental and traditional freedoms because it is the only nation of the world explicitly founded on the creed of individual liberty, natural rights, and constitutional government. It is an exceptional nation. But it will remain so only if succeeding generations are committed to this creed.

By returning to the first principles of universal human rights, the United States can restore clarity to a domestic and global conversation that has become politicized and muddled. This project is a modest attempt to assist that effort.

Emilie Kao is Director of the Richard and Helen DeVos Center for Religion and Civil Society, of the Institute for Family, Community, and Opportunity, at The Heritage Foundation.

Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, at The Heritage Foundation.