Sunday, December 19, 2021
By Sandy Recinos, ’23, Program on Human Rights and the Global Economy, Northeastern University School of Law
On March 30th, 2021, Secretary of State Anthony J. Blinken decisively repudiated the report of the Commission on Unalienable Rights, Secretary Mike Pompeo’s human rights advisory committee. This bold and controversial move ended any notion that the Biden administration would carry on with the Commission’s ideas or initiatives. Blinken specified that human rights are universal and co-equal; that unlike what was noted in the report, there is no hierarchy that makes some rights more important than others. Yet on November 14th Notre Dame’s Kellogg Institute for international Studies held a three-day conference featuring six of the twelve members of the Commission. Day three of this conference was titled, “Where do we go from here?”
The conference, Inalienable Rights and the Traditions of Constitutionalism was held in person at Notre Dame Law School. At first, the event was invite-only, with only a few invitations extended to human rights attorneys and advocates who were critical of the Commission’s report. As the date approached, however, conference organizers announced the event would give Zoom access to invitees, be shared on a YouTube livestream, and generally invite comments and discourse from Commission critics. The schedule was divided into five themes led by five keynote speakers and respondents, followed by questions from the audience, and panels discussing the keynote presentation and the theme.
This direct line of access to the Commission members is a stark contrast to the Commission’s policies prior to the creation of its report. A coalition of human rights organizations sued Secretary Pompeo in March of 2020 for violating the Federal Advisory Committee Act’s requirement for transparent operations. They described the Commission’s process as one that continuously held closed-door meetings outside of the public view or did not provide adequate notice of meetings. Human rights groups and State Department diplomats also said they were being sidelined and taken out of the key conversations regarding international human rights commitments and foreign policy decisions.
So, does the Committee members’ willingness to entertain questions, criticism, and competing ideas represent a positive development and a shift in their process for future endeavors? Well, as Commission member Paolo Carozza of the University of Notre Dame said in the final panel of the conference: the Commission is dead, and future efforts will not be made under the Commission’s authority and name. However, the ideas articulated in the Commission report, such as prioritizing religious freedom and property rights over other human rights and anchoring human rights principles in natural law, seem to have found a home at the Kellogg Institute of Notre Dame.
This shift to an academic setting has multiple implications. On the one hand, Notre Dame breathes new life into ideas that the Biden administration tried to banish. The university and the Kellogg Institute also put institutional weight behind future endeavors to promulgate the report and its ideas. A panelist on the last day of the conference suggested Notre Dame host student seminars, symposiums inviting worldwide contributions to address outstanding questions, and annual conferences on unalienable rights specifically for journalists and judges. Another spoke about actively seeking institutions and organizations abroad that resonate with the report and collaborating with them to further these ideas abroad.
On the other hand, Notre Dame is far less politically insulated than the Commission and will invite much more critique. At the conference, voices like Harvard University’s Martha Minnow encouraged inclusion of more diverse perspectives to better reflect American tradition and ideals. On its website, the Kellogg Institute touts that its conference format was intended to enrich public discourse by featuring voices with views on human rights across the political spectrum. However, some attendees believe there wasn’t enough pushback and questioning of ideas presented to create a truly rich conversation. Occasionally, tougher questions were not addressed, or questioners were cut off with a promise for a conversation at a later time. One attendee said they would only attend this conference again if Notre Dame guaranteed much more robust dialogue instead of the tiptoe critique that they saw at this year’s conference.
While the Commission on Unalienable Rights is officially dead, human rights attorneys and advocates must keep an eye on developments at Notre Dame. No one should be lulled into thinking that the ill-conceived parts of the Unalienable Rights report will simply go away quietly.