Natural Rights vs. Human Rights: The State Department’s New Commission on Unalienable Rights


Yesterday afternoon we learned from Politico that the State Department had just “quietly published” in the Federal Register a notice that the department intends to establish a Commission on Unalienable Rights. Its aim, as the notice states, is to

provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.

The Politico report goes on to cite human rights activists and former State Department officials worrying “that talk of the ‘nation’s founding principles’ and ‘natural law’ are coded signals of plans to focus less on protecting women and LGBT people.” And critics note also, correctly, that “the Trump administration’s record on human rights so far is spotty at best.”

Still, properly undertaken, this commission could help correct confusions at the core of modern human rights thinking and policy, many of which were highlighted in a new book we featured at a Cato forum a year ago, Aaron Rhodes’ The Debasement of Human Rights: How Politics Sabotage the Ideal of Freedom. Shortly thereafter, Dr. Rhodes and I summarized those issues with a piece at National Review.

In a nutshell, the modern human rights movement took shape in the aftermath of World War II, with the creation of the United Nations and the drafting of the U.N.’s 1948 Universal Declaration of Human Rights. As we wrote in the National Reviewpiece:

Arising from political compromises between post-war progressives and some of the world’s worst tyrannies, the UDHR bows simply to “inherent dignity,” making no mention of natural law or natural rights. To be sure, it lists rights in that tradition. But it goes on with a list of so-called economic and social rights — to jobs, housing, “periodic holidays with pay” — which today dominate human-rights debate and practice.

Unlike natural rights to freedom, which require only that we be left alone, these economic and social rights, if rights at all, are not universalizable. They’re created by legislatures, requiring endless redistributive schemes. And as demand for them grows, governments grow and liberty yields. More sinister still, the original compromises that elevated these rights to the status of human rights have enabled totalitarian regimes to sit at the human-rights table. After 70 years, a toxic hypocrisy poisons the debate. Russia, China, Cuba, Islamic theocracies, even North Korea boast about their often illusory economic and social programs as evidence of human-rights compliance and their own legitimacy.

We have here, in short, a textbook example of how confused thinking, coming out of the Progressive Era, has led to confused policy, and worse. In fact, the Politico article notes that Kiron Skinner, Secretary of State Pompeo’s director of policy planning and the commission contact listed in the Federal Register notice, “drew criticism recently for seeming to suggest that China, a rising power, is such a fundamentally different culture from the United States that arguments about human rights may not have much effect in dialogue with Beijing.”

But there is truth in that suggestion. As I showed in a chapter on China’s Constitution in Cato’s 1998 book, China in the New Millennium, unlike in the natural rights tradition, which begins with the individual, the socialist tradition—and, in fact, progressivism too—begins with the group, its agenda carried out, in countries like China, through the Communist Party. On that understanding, “human rights” are not innate and unalienable but rather are a function of that starting point. Thus, as I wrote in that chapter, “a careful reading of [the Chinese Constitution] will show that the ‘law’ provides virtually no protection for individual rights, notwithstanding its use of the language of rights.” Indeed,

Article 51 sets out a general defeasance clause: “Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society, or of the collective.” Given that those “interests” are boundless in principle, and vague besides, any claims that individuals might have against the state can always be trumped as a matter of constitutional law. It should hardly surprise that the Constitution elevates the interests of the state above the rights of the citizen. After all, the whole point of the Constitution is to order affairs—including the affairs of individual citizens—toward the goal of building socialism. Given that all-encompassing end, it stands to reason that individuals should not be permitted to act in ways that might compromise the end. In fact, when they do, their acts are branded as “counterrevolutionary” and subject to suppression (Article 28).

If this new commission can refocus America’s human rights thinking and policy on America’s first principles, grounded in our unalienable natural rights, the implications are far reaching, not only for the rest of the world but for America itself.

Roger Pilon is the founding director of the Cato Institute’s Center for Constitutional Studies, the founding publisher of the Cato Supreme Court Review and the inaugural holder of Cato’s B. Kenneth Simon Chair in Constitutional Studies. Prior to joining Cato, Pilon held five senior posts in the Reagan administration, including State and Justice, and was a national fellow at Stanford’s Hoover Institution. In 1989 the Bicentennial Commission presented him with its Benjamin Franklin Award for excellence in writing on the U.S. Constitution. In 2001 Columbia University’s School of General Studies awarded him its Alumni Medal of Distinction. Pilon lectures and debates at universities and law schools across the country and testifies often before Congress. Pilon holds a BA from Columbia University, an MA and a PhD from the University of Chicago, and a JD from the George Washington University School of Law.

Used with permission. Cato Institute / CC BY-NC-SA 4.0