Fourth Meeting
Date: January 10, 2020
Time: 13:00 – 17:30
Location: Harry S. Truman Building, Washington, D.C.

In Attendance
Mary Ann Glendon, Chairwoman
Peter Berkowitz, Executive Secretary
Kenneth Anderson, Commissioner
Russell Berman, Commissioner
Paolo Carozza, Commissioner
Hamza Yusuf Hanson, Commissioner
David Tse-Chien Pan, Commissioner
Katrina Lantos Swett, Commissioner
Christopher Tollefsen, Commissioner
Duncan Walker, Designated Federal Officer
Cartwright Weiland, Rapporteur

Approval of Minutes

Rapporteur F. Cartwright Weiland drafted these minutes.  I have certified their accuracy.

Mary Ann Glendon, Chairwoman

 

Public Meeting: United States International Human Rights Commitments (Part II)

The Commission convened its fourth public meeting at 13:00 in the Dean Atcheson Auditorium.  The Chairwoman introduced herself, explained why the Commission was established, and spoke briefly about the previous public sessions, as well as commissioners’ ongoing consultations with DRL and other bureaus in the Department of State.  Commissioner Carozza, as co-chair of the December and January meetings, explained his professional background, including his role on the Venice Commission.  Other commissioners then introduced themselves and reflected on their personal interests in serving on the Commission.  In one revealing example, Hanson mentioned being arrested in an African country, where he was accused of being Libyan spy and then imprisoned.  This experience left a great impression on Hanson about what it means both to have universal human rights and to have them stripped.

Then the day’s first speaker, Executive Director of Human Rights Watch (HRW) Kenneth Roth, took the stage. Roth has led HRW for 26 years, and he mentioned that the organization has a presence in more than 100 countries.  Prior to joining HRW, Roth worked as federal prosecutor.  Noting that many of the commissioners work as professors at colleges and universities, he said that at one time he considered going into academia, and he still mulls what that career path would have been like.

When it was founded in 1978, HRW was known as Helsinki Watch (in light of the Helsinki Accords), but the organization’s name changed and the scope of its work expanded in the years since.  Not only does it concern itself with rights violations like extrajudicial killing, arbitrary detention, and infringements on personal liberty, it also documents discrimination in access to education, barriers to healthcare, and restrictions on the rights to food and water.  According to Roth, HRW places a particular emphasis on the plight of the most vulnerable – including the poor, women, LGBT-identifying individuals, and the disabled.

Roth candidly admitted that he was worried when the Commission was founded.  Based on remarks Secretary Pompeo initially gave, Roth inferred that the Secretary is alarmed about a supposed “proliferation of rights.”  Roth feared that, based on this concern, the Commission might endorse a “pick and choose” attitude to rights.  Roth wished to show commissioners that there is clarity in international law regarding what constitutes a “human right.”  In his personal view, two of the alleged problems the Secretary had identified in his announcement speech – not only rights proliferation, but also rights “clashes”– do not in fact exist, at least not to the extent the Commission might believe them to.

For Roth, human rights are not in the eye of beholder.  Positive law provides specific answers to what qualifies as a right.  Philosophical arguments regarding human rights are interesting, but they will never end with any widely agreed upon conclusion.  The “proliferation of rights” that Secretary Pompeo has lamented rings false, Roth said, when one considers that there are only a handful of core treaties (9) that delineate specific human rights, and that number is not growing rapidly from year to year.  Rather than an increase in the number of rights, what the world has witnessed in recent years, according to Roth, has been large, accelerating social movements seeking to advance equality.  Granted, these movements state their claims in terms of rights.  They do not seek new rights, however, but rather the protection of existing rights that have been denied to certain groups.

Regarding “new” rights or “special” rights, Roth said that there is confusion and that critics misunderstand claims made by excluded people.  For example, transgender women in Lebanon lack access to education, which is a “basic” (rather than new or special) right.  Roth also mentioned gay individuals in Uganda being forced to submit themselves to anal exams, and Russia’s legal ban on positive portrayals of LGBT issues made to children.  These are violations of rights that are firmly rooted in, and protected under, existing treaties.

Roth then ventured into rights’ contested terrain.  Turning to the destruction of human fetuses, he conceded that there is no explicit “right to abortion” in relevant human rights treaties.  But, he argued, some international human rights bodies and experts uphold a right to reproductive freedom on the basis of well-established rights – the right to bodily integrity and health, for example, and the right of parents to determine the number and spacing of their children.  He said that, in many places, the consequence of not honoring these rights is so severe that it can result in death to pregnant women, thus violating their right to life.  Relatedly, Roth said, the denial of abortion can amount to torture, according to a UN Committee – for example, when a woman is medically diagnosed with a stillborn child but is forced to bring it to term.

Roth continued by citing another problem Secretary Pompeo, in his announcement speech, asked the Commission to consider – namely, the “tension” and/or “clashes” between rights.  Once again, Roth asserted that the Secretary’s framing reflects a misunderstanding, and that an example like Venezuela shows why.  Under Nicolás Maduro’s regime, there has a straightforward violation of political and civil rights.  This has led to extreme deprivation of social and economic rights (i.e. food and medicine shortages).  Thus, Roth said, there is no “tension” – because, as Venezuela shows, some rights are conditional on others.  Rights support each other and are inextricably tied.  Roth also brought up the example of Equatorial Guinea – an oil rich nation, but one where many people live in poverty because of political repression.  Roth said that the example illustrated the interrelatedness among rights.  Finally, Roth brought up Narendra Modi, the current Prime Minister of India, who has pushed a Hindu nationalist agenda there.  In Roth’s telling, Modi’s agenda has entailed classic discrimination against Muslims, which has led to protests.  These protests, in turn, have led to violent and severe repression (putting the right to peaceful assembly in jeopardy).

During this portion of his remarks, Roth’s main point was that even though the U.S. constitution was written with a particular set of rights in mind, and even though the American tradition distinguishes between political/civil rights on the one hand, and economic/social rights on the other, the rest of world does not endorse this clean separation.  And not only that, the rest of the world often considers the U.S. to be “sort of crazy” for separating the two.  Roth acknowledged that, among Americans, there is a sense that social and economic rights are mushy and indeterminate, but he felt this impression is misinformed, because in various international legal provisions, they have real teeth.

Continuing on the theme of alleged “tension” between rights, Roth brought up abortion once again.  He said that it is often talked about in terms of clashes between rights – for example, when health care professionals refuse to provide subsidized and/or unrestricted access to abortifacient drugs on account of their firmly-held religious beliefs.  Roth said, however, that Article 18 of the International Covenant on Civil and Political Rights (ICCPR) should govern this type of situation and provides a relatively easy solution.  That provision suggests that religious belief is sacrosanct, but also that the “[f]reedom to manifest one’s religion” is subject to regulation.   For Roth, that means that states can craft a role for conscientious objectors, so long as safe abortions in these circumstances remain available in the vicinity.  Roth framed this as balancing and said that it is required in all circumstances, given the fundamental nature of women and girls’ right to health.

Roth then shifted gears to a new topic.  He turned to the part of the Commission’s mandate that requires it to consider the role human rights play in American foreign policy.  Roth said that it is difficult for the United States to have moral authority when its current president is known for embracing autocrats.  Roth said that people around world are questioning the United States on human rights.  He cited the separation of migrant children from their parents on the U.S.-Mexico border, the denial of (or lack of access to) health care, detention at Guantanamo Bay, and the failure to hold any U.S. government officials accountable for post-September 11, 2001 torture by the Central Intelligence Agency.  Roth’s view was that U.S. influence as a promoter of human rights is limited by its willingness to tolerate human rights violations at home.

Roth also brought up the UN Human Rights Council (HRC), saying that he understood why the body’s frequent criticism of Israel led the Trump Administration to withdraw from it.  But Roth said that the U.S. withdrawal has left a void, and that the U.S. government (USG) should be careful about disparaging the Council overall just because of its stance on one issue.  He complimented the HRC’s work on such matters as a resolution condemning the Chinese regime on its Uighur internment camps in Xinjiang.  And he warned that there are enemies of human rights that seek to join the Council, so when the U.S. withdraws, it dangerously leaves the field open to others.  He repeated his earlier emphasis that, when it comes to the HRC, there is more at stake than Israel.

As he concluded his remarks, Roth returned to his basic concern that the Commission might ultimately endorse a “pick and choose” approach to rights.  In his view, there is “a positive law answer” to the rights confusion that allegedly exists.  Even if some may wish for the law to be different, there is a danger posed by any efforts taken that veer from the positive law as the final standard of what constitutes a human right.  Roth pointed to governments like China and Saudi Arabia that seek a pick and choose approach and warned the U.S. against doing the same. For him, a principled USG voice is needed to advance human rights.

Then the question and answer portion with Roth got underway.  Carozza noted that Roth had said rights proliferation is not a problem because rights are grounded in (and delimited by) positive law.  But Carozza disagreed, saying that rights are not always grounded in that source.  For example, he said, the U.S. across different presidential administrations has opposed various “collective rights” (which are separate and distinct from rights afforded to individuals).  Carozza followed this critique with a question, asking Roth how he thinks interpretive problems should be resolved.  In Carozza’s words, simply because a claim can somehow be linked to positive law does not mean it should automatically gain status as a “right.”  He welcomed Roth’s views about what should happen when international human rights law begins to be stretched.  How, in other words, is one to judge cases at the margins – when the rights asserted are at the interpretive boundary of contestation?  Are there (or could there be) criteria necessary to show a contested right is sufficiently grounded in positive law?

Roth responded by acknowledging that rights-based rhetoric presents problems.  He said that frequently people use the mantle of rights to describe a difficult situation they face, but HRW has to tell them that the organization cannot recognize their claim as a human right.  As for interpretation problems Carozza mentioned, Roth said the best way to avoid them is to acknowledge that, just as the U.S. Supreme Court is the final arbiter of American judicial disputes, so too should the HRC get the final say on human rights determinations.  Roth also commented briefly on collective land rights – including the “right to development” that has been invoked by countries as an excuse to avoid dealing with individual rights.

Berkowitz spoke next.  He brought up Roth’s statements regarding U.S. withdrawal from the HRC, saying that Roth had glossed over how “enormously” critical of Israel the HRC had become in recent years.  Berkowitz also discussed abortion, which Roth framed as not “really” involving a clash of rights.  Berkowitz disagreed, acknowledging that the U.S. Supreme Court has established a woman’s right to terminate her pregnancy, but adding that the fetus, which many would refer to as an “unborn child” also has a right to life.  His point was that Roth was over-simplifying what, in reality, is a difficult legal, political, and moral issue.

Regarding the HRC, Roth acknowledged that the number of its resolutions targeting Israel is perhaps too high, but he repeated his earlier point, which is that participation in the HRC is “about a lot more.”  As for abortion, Roth said that when there is a clash of basic visions, the best means of resolving the conflict is by consulting positive law.  Roth said that there is only one treaty that addresses this.  Roth characterized a fair accommodation to be never criminalizing abortion, and legalizing it to at least a significant extent.

Tollefsen expressed some sympathy for Roth’s position that there are not a host of “new rights.”  Tollefsen said that, in the abortion context, the right to bodily integrity could be taken to apply to a fetus and thus would have a connection to the UDHR (which speaks of the right to life and the security of one’s person).  Thus, abortion arguments are framed in terms of classic rights (rather than new ones).  The core international disagreement regarding abortion comes over the sound interpretation of the relevant documents, rather than over whether new rights are really rights at all.  Roth acknowledged that some philosophical traditions say right to life includes an unborn child, but he argued that, because no international positive law provision says this, and because ignoring positive law is dangerous, that Tollefsen’s interpretation cannot be endorsed.

Pan reminded Roth that “positive law” encompasses instruments other than international treaties.  It also includes domestic law, which is more firmly grounded in popular sovereignty.  Pan said that it is not clear when if ever treaties should supersede the sovereign laws of individual states.  He also asked Roth if the USG approach should be different from an NGO’s like HRW.  Pan wondered, for example, if the USG should prioritize countries where rampant rights violations most often occur, or instead seek to protect “every right everywhere.”  Regarding Pan’s sovereignty point, Roth responded that once a nation opts into the international system, there are limits to what it is allowed to do inside its own borders.  The attitude of “the will of people should prevail” is the language deployed by rights violators like Nicolás Maduro of Venezuela, and Vladimir Putin in Russia.  Roth said that the whole point of the human rights system is to restrict options available to governments.  Even democracies are not off the hook; they are still subject to scrutiny.  For this reason, Roth opposed any USG approach that would only focus on the worst violators (i.e. non-democracies).

Berman returned the topic to domestic law.  He noted that Congress has already drawn distinctions between rights – for example, by prioritizing the freedom against human trafficking, as well as international religious freedom, through various policy measures.  Based on this, Berman asked if, in Roth’s view, “stovepiping” is an effective way to administer human rights protection, or if a less specialized approach would be better.  Roth indicated that he dislikes stovepiping and felt that a holistic approach is more effective.  Roth also spoke about various types of sanctions imposed by the USG for human rights abuses, as well as the so-called Leahy Laws that prohibit the U.S. Department of State and Department of Defense from providing military assistance to foreign security forces that violate human rights with impunity.  He spoke of the need for clear benchmarks, with the overall aim of such policy levers being to change states’ behavior. Roth emphasized the need to be attentive to the differences between different types of sanctions (for example, so-called Magnitsky sanctions vs. broader trade-based sanctions) and the consequences of each.  Under broad trade sanctions, for example, sometimes the corrupt elites in foreign countries thrive, while ordinary people suffer.  This ends up undermining human rights.  Roth added that Magnitsky sanctions have been effective under the Trump Administration, but he wondered why they have not been applied to Chinese officials running Uighur internment camps in Xinjiang.

When Swett spoke next, she pushed back on Roth’s earlier statements suggesting that tension and/or clashes between rights are an illusory concern.  She spoke of her tenure serving on the U.S. Commission on International Religious Freedom (USCIRF) and said that she had, on many occasions, read Article 18 of the ICCPR.   She disagreed with his reading of the provision.  Swett was particularly troubled by a suggestion by Roth that health care providers’ religious rights of conscience could be easily overridden in rural contexts, if a woman’s alleged right to abortion was imperiled.  Roth responded by emphasizing that the ICCPR, unlike the UDHR, was meant to be binding and thus must be honored.  But Swett, while agreeing with that sentiment, once again pushed back against his characterization of the true rights clash at stake.  In the abortion context, she asked rhetorically, which is a graver deprivation of rights – making a woman travel 100 miles (to obtain an abortion), or making a health care provider participate in what she considers to be a grave moral crime?

In conclusion, Glendon thanked Roth for his willingness to come and speak to the Commission.  She praised the preface to one of HRW’s recent reports, which emphasized the need for the U.S. to set a good human rights example at home, and its need to build “coalitions” and engage in “multilateralism” – both of which Glendon saw as goals that are key to the success of the international human rights project.

***

After a short break, Carozza introduced the second guest for the afternoon, Professor Diane Orentlicher, who teaches at the Washington College of Law at American University.  Carozza described her as one of world’s leading authorities on human rights law, war crimes, and war tribunals.  Throughout her career in legal academia, Orentlicher has served in various USG and intergovernmental positions, including as the Deputy for War Crimes Issues in the U.S. Department of State (2009-2011); United Nations Independent Expert on Combating Impunity (on appointment by the UN Secretary-General) and Special Advisor to the High Commissioner on National Minorities of the Organization for Security and Co-operation in Europe (OSCE).

Orentlicher began by discussing the 1980s, the period when she first became involved in human rights issues (serving as Deputy Director of the organization that is now called Human Rights First), and which she described as consequential for defining the role of human rights in U.S. foreign policy.  During the early 80s, a robust and at times acrimonious debate occurred.   Eventually, a bipartisan consensus emerged in support of advancing human rights, and Orentlicher saw firsthand how a robust U.S. commitment to them can enhance the daily lives of women, children, and marginalized communities in foreign countries.   As for what fostered the consensus, Orentlicher cited bipartisan congressional action, and the Reagan administration discovering that there is fundamental alignment between security interests and the pursuit of universal human rights, even in countries that are strategic allies and where major U.S. security interests are on the line.

Unfortunately, Orentlicher lamented, the consensus that emerged during the 80s is now under severe stress.  What the USG says about human rights matters, and grave harms multiply when the U.S. signals indifference, ambivalence, or worse regarding them.  Like Roth, Orentlicher thought that current signals by top leadership in Washington are hurting U.S. credibility.  For example, when U.S. leaders say journalists are purveyors of “fake news,” they inadvertently embolden dictators that target journalists.  Orentlicher also mentioned the U.S. threatening to bomb foreign antiquities.  When this happens, the uniquely influential pulpit of the USG is broadcasting, in effect, that sacred norms that keep barbarism at bay are now up for grabs.

Orentlicher said Secretary Pompeo’s call, when forming the Commission, to prioritize human rights was welcome, and that the Commission could make an invaluable contribution if it issued a “clarion call” to renew and reinvigorate the historic U.S. commitment to the principles inscribed in the UDHR.    

Nonetheless, when Secretary Pompeo established the commission, Orentlicher was concerned about his desire to reexamine the basic precepts underlying human rights.  Orentlicher stated that universal assent to those principles through adoption of the UDHR in 1948 was gained at an unbearable cost, measured in the lives of millions whom the Nazis exterminated solely because of who they were – above all Jews, but also gay people, Roma and Sinti, and persons with disabilities – and what they believed.  Orentlicher also took issue with the Secretary suggesting that one threat to human rights today is human rights advocacy.  Orentlicher, in a brief aside, described Mary Ann Glendon’s book on the UDHR (A World Made New) as a “must read” and said that, now after 70 years have passed, it is time for America to reanimate, not revisit” or “reexamine,” its commitment to the human rights set forth in the Declaration. 

Then Orentlicher reflected on Secretary Pompeo’s contentions that there has been an acceleration of rights claims and that the role of NGOs has become problematic in certain respects.  She disagreed with those points.  As for the acceleration (or “proliferation” issue), she opined that American suffragettes who fought for American women’s right to vote contributed to the “proliferation” of rights.  Those who drafted the UDHR realized that our understanding of the rights it affirmed would continue to deepen.  The continual assertion of “new” claims is in fact essential to realizing the rights inherent in humanity. 

For example, Orentlicher said, this country only belatedly recognized the inhumanity of slavery.  And in addition, we have gained a deeper understanding of gaps in the architecture of protection of rights.  Now we understand the impact private actors often have on the enjoyment of rights.  She also emphasized the need for extreme care in USG messaging regarding the role of human rights NGOs, particularly at a time when civil society is being targeted in many places across world. 

Orentlicher then turned to the topic of transitional justice, which she has written about extensively in works like her book Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia.  She discussed seven takeaways from her study of the International Criminal Tribunal for the former Yugoslavia (ICTY) and one more general takeaway about US human rights policy: 

  1. Rebuilding an entire system of human rights protections requires a wide range of interventions. Donor states too often focus on a narrow band of programmatic assistance. 
  2. Criminal prosecutions (through entities like the ICTY) can meet some goals that are important in their own right – even though they cannot (and should not be expected to) accomplish wholesale social reconstruction and/or reconciliation. Orentlicher said that we must manage public expectations and realize that the judicial paradigm is not capable of solving the raft of issues confronting post-conflict societies. Despite their limits, prosecutions can achieve important goals: Trials can signal a new government’s normative commitment to human rights, which sets the national tone for moving forward. Moreover social science research has found a correlation between human rights prosecutions and improvements in countries’ human rights records over time.  b) Trials can also bring moral satisfaction to victims of war crimes. When Orentlicher interviewed Bosnian victims as part of her book research, they voiced their disappointment in many aspects of the ICTY’s performance.  Based on their response, Orentlicher asked if they thought it had been a mistake to create the ICTY. The same victims would answer, “Absolutely not!  Without the Tribunal we would not have gotten justice.”   Orentlicher said a similar sense of moral satisfaction was expressed by many survivors of Khmer Rouge atrocitieswhich were prosecuted before the Extraordinary Chambers in the Courts of Cambodia, or ECCC. 
  3. In the aftermath of atrocious crimes, the work needed to prevent a recurrence may take a very long time; correspondingly, the need for robust external engagement (by parties like the U.S.) may be longer than we are disposed to recognize. Although Orentlicher understands the desire to avoid the “proverbial dependency syndrome,” she said the premature withdrawal of support can have serious consequences.  For example, in postwar Bosnia and Serbia, she found that when U.S. and European Union (EU) engagement declined, there was a reversion to deeply worrying patterns, such as a sharp rise in interethnic tensions.  She said she was “not expecting to see this” correlation. 
  4. International and hybrid tribunals supported by the United States can be designed with a view to strengthening countries’ domestic legal capacity. 
  5. There is ample room for improvement for all such tribunals – especially when it comes to streamlining needlessly long proceedings. 
  6. Additional efforts must be made to ensure that tribunals do not under-investigate or under-charge offenses involving sexual violence. 
  7. The USG must respond nimbly to early warning signs of potential atrocities and, in order to do so, should ensure the entire foreign policy bureaucracy is “literate” in human rights so that officers posted abroad can recognize early warning signs. 
  8. The USG should learn from the comparative experience of the European Union (EU), which links certain trade benefits to compliance with a more comprehensive set of internationally recognized human rights than does the U.S. 

Orentlicher concluded on a positive note.  She said that, when it comes to unalienable rights, U.S. strength comes not in imposing its views on others, but in living up to its human rights commitments at home and, looking beyond American shores, insisting on every person’s equal dignity, inherent worth, and right to determine his or her own destiny. 

Following Orentlicher’s remarks, commissioners posed several questions.  Carozza remarked that Orentlicher’s research on transitional justice systems suggests that it is vitally important to adapt to local circumstances – because there is “no one size fits all” approach that would suit countries as diverse as Rwanda, Cambodia, and the Balkans equally well.  He asked to what extent Orentlicher thought that that principle should apply to human rights protections more broadly and, if so, if there are any limiting principles.  Orentlicher did not offer a direct reply but said that her work is more about the challenge of re-establishing protection systems in the wake of mass atrocities  She emphasized that human rights themselves are the same everywhere and do not change depending on local circumstances.  

Berkowitz was next.  He spoke of Orentlicher’s belief that a robust commitment to human rights can have a transformative effect, agreeing with her that it can be difficult to translate this commitment into effective policy.  (Berkowitz cited a law review article by Orentlicher that discussed President Carter’s administration, which was committed to human rights but did not give sufficient thought to how to operationalize that commitment, and underestimated the extent to which foreign governments would resent being lectured on human rights.)  Orentlicher responded that she ardently believed in the power of stating American ideals unequivocally.  She spoke of a “wide menu” of means by which the United States might advance compliance with human rights standards, and recommended that the USG prioritize the gravest threats worldwide.  Finally, she mentioned how the State Department’s Bureau of Democracy, Human Rights, and Labor (DRL) has evolved over time.  The bureau has decades of experience to draw uponunderstands risks of blowback, and has a wealth of expertise in managing such risks while supporting human rights. 

Pan asked Orentlicher how the USG should respond to authoritarian governments like China that presumably would not have much interest in human rights trials or truth commissions.  He also remarked that while regions like the Balkans may have had relative success with these sorts of tribunals, countries in regions like the Middle East (Iraq, Afghanistan, etc.) have not.  In her response, Orentlicher qualified one of Pan’s statements, saying that Bosnia is still a very fragile situation, so she would not necessarily call it a “success.”  In response to Pan’s questions, she said that there is no general formula for how to intervene regarding human rights, but engaged diplomacy can help avert crises. 

Tollefsen asked if the experience of the last couple decades provided a definitive verdict on the question of whether criminal trials or truth commissions were better at achieving social repair in the wake of mass atrocities.  He said that he had been impressed with Archbishop Desmond Tutu’s argument in favor of truth and reconciliation commissions in the book No Future Without Forgiveness. Orentlicher responded that South Africa’s experience has provided an inspiring model for many, but that many other countries that have addressed past violations have concluded that a “truth commission only” model is not ideal.  Even within South Africa, many citizens were disappointed by the absence of robust prosecutions, which were not wholly precluded by the country’s amnesty process, and by the inadequacy of reparations. (Orentlicher also mentioned that Bishop Tutu has himself spoken favorably of prosecutions in other countries.)  Her basic point was that there is no magic bullet when it comes to achieving justice after catastrophic national tragedies. 

Glendon inquired about how to train diplomats for these sorts of situations in which local knowledge and language are critical.  Orentlicher responded that training in how to identify and respond to potentially “explosive risks” had been incorporated into the State Department’s foreign service training – and this should continue, along with new, additional training regarding “early warning signs.” 

Swett remembered that Orentlicher had used the term “clarion call” during her remarks, suggesting perhaps that language and rhetoric play a huge role in protecting human rights.  Although the U.S. cannot protect all people from grave human rights abuses, it can embolden many, and strengthen their resolve, Swett said.  She welcomed Orentlicher’s thoughts on the importance of “the language we use and banners we raise.”  Swett also wondered if there is a difference between talking about human rights in “safe” settings (like the Commission meeting) versus abroad in tenser, more formal diplomatic settings.  Orentlicher, in her response, said that that the U.S. does not always need to use a bullhorn.  Sometimes gentle nudges are warranted, while other times louder public criticism is the more appropriate option.  She said the USG must make calculated decisions at times not to “clobber” nations regarding their human rights records – and instead “calibrate” its message to fit unique circumstances.  She hastened to add that any time the U.S. says the wrong thing, it will be magnified many times over by dictators. 

Berman asked for any practical suggestions regarding the USG’s human rights organizational structure. Orentlicher reiterated her message from earlier that the EU is ahead of the U.S. in terms of conditioning trade preferences on a wide range of human rights.  She also said that the many offices whose work relates to human rights can make it challenging to ensure the government speaks with one voice.  At the same time, however, her own experience working in what is now called the Office of Global Criminal Justice brought home the value of thematic offices with deep expertise in specialized subject-areas, which can be tapped when crises emerge—as they do all too often. 

Anderson spoke of how businesses are increasingly involved in the domain of human rights and welcomed Orentlicher’s thoughts on the matter.  She answered that she is aware of DRL’s work on that topic and this is important, as businesses need guidance in figuring out, when it comes to performing due diligence, how to avoid complicity in rights violations.  She said that the State Department could serve as an incubator for comparing experiences, and that UN Guiding Principles offer a valuable framework. 

*** 

After Glendon concluded by thanking Prof. Orentlicher for her participation in the Commission’s proceedings, the public comment portion of the meeting began.  Glendon announced to the audience that the speakers at the Commission’s next meeting in February would be Martha Minow (Harvard Law School) and Thor Halvorssen (Human Rights Foundation). 

Then Prof. Bill Saunders, who heads a human rights program at Catholic University of America (CUA) and teaches courses on religious freedom at CUA’s law school, spoke.  He thanked Secretary Pompeo for forming the Commission, as well as the commissioners for their public service.  Saunders plans to bring his students to future meetings. 

A representative from Amnesty International spoke of the failure of various U.S. presidential administrations to ratify human rights treaties.  Since 2020 is year of the UN’s next universal periodic review of the United States, he wondered the extent to which the Commission might, in its final report, recommend that the USG revisit discussions about joining treaties.  Glendon thanked him for his comments and mentioned that the Commission had invited the former Secretary General of Amnesty International Shalil Shetty and was disappointed that he was unable to participate in a prior meeting.  Following up on the Amnesty question, Swett said there historically has been a remarkable reluctance on the part of the U.S. to ratify human rights treaties.  But Berman argued that maybe signing the treaties is not the real issue.  Many nations sign treaties but never fulfill their obligations under them – whereas, when the U.S. signs something, it takes seriously its commitment, which explains our hesitancy. 

A representative from the Netherlands embassy also spoke, saying that human rights is major issue not only for the U.S. but also for its allies.  He asked several procedural questions about how far along the commissioners were in drafting, the dates of the next meetings, and what the Commission does in between meetings. 

Announcements

Commissioners Rivers and Soloveichik were unable to attend today’s meeting.

Next Meeting

February 21, 2020 | Time 1:00 p.m., Dean Acheson Auditorium, Harry S. Truman Building, Washington, D.C.

Expert witnesses: Martha Minow (Harvard Law School); Thor Halvorssen (Human Rights Foundation).

U.S. Department of State

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