The U.S. Department of State recently hosted the first public meetings of its Commission on Unalienable Rights. When the commission was first announced, Secretary of State Mike Pompeo explained its guiding question: In a world where human rights discourse has become ubiquitous, but where grave violations persist, “What does it mean to say or claim that something is, in fact, a human right?”
The backlash was immediate, and was, predictably, led by organizations that have used the language of human rights to advance controversial social agendas, such as the legalization of abortion, gender ideology, and the eradication of traditional sexual norms. They feared that a back-to-basics examination of rights would inevitably leave them out in the cold. Their concern is not without merit, seeing that their assertions have never attained global acceptance, and are not found in any binding human rights agreement.
Yet even as the commissioners undertake their scholarly project, the Trump administration is actively advocating just such controversial sexual “rights” within the UN system, specifically, at the Human Rights Council in Geneva.
The UN Human Rights Council and Its Universal Periodic Review
Although the U.S. withdrew from the UN Human Rights Council last year, it has continued to participate in the Council’s Universal Periodic Review (UPR). In fact, the U.S. will face its own review in May 2020, and continues to actively participate in the UPR review process even though the Council continues to adopt resolutions against Israel, and despite the fact that the Council’s members continue to include countries described as “some of the world’s most serious offenders” of human rights by then-UN Ambassador Nikki Haley. (These were the two chief reasons cited by the Trump administration for withdrawing from the Human Rights Council in the first place.)
The UPR is the principal activity for which the Council was established in 2006. Through it, the human rights record of every country is reviewed by the forty-seven member states of the Council, and by any other state that wishes to participate. These states issue nonbinding recommendations directly to the reviewed countries in order to exert positive peer pressure. Other UN human rights bodies—such as those that monitor compliance with treaties—consist of experts that speak to governments; but in the UPR governments talk to each other.
Because of its lateral structure, and the fact that its recommendations are brief, one-sentence statements, the UPR provides an evolving picture of today’s human rights discourse. After receiving its review, a country responds to each recommendation either by “noting” or “supporting” it. “Noting” a recommendation implies that the state does not in fact agree with the recommendation’s normative claim, whereas “supporting” a recommendation implies the state does agree with it. By analyzing the thousands of recommendations of the first two completed cycles of the UPR, and of the current, half-finished cycle, one can discern which rights claims enjoy universal support, and which are accepted only in specific nations and regions.
For decades, human rights experts at the UN have pressured countries to liberalize their laws on abortion, and, more recently, to prohibit discrimination on the basis of sexual orientation and gender identity. Most egregious in this regard are the expert bodies that monitor compliance with the UN’s binding human rights treaties—because none of these treaties mentions such concepts, even implicitly.
Predictably, these topics have also found their way into the UPR, but with an important distinction: only a relative few countries—mostly from the regional group that includes Western Europe, North America, and Australia—have made them a priority. Furthermore, recommendations on sexual orientation and gender identity (which far outnumber those that refer to abortion) are “noted” (not “supported”) by the reviewed countries roughly twice as often as the average recommendation.
In the words of Swiss human rights lawyer Walter Kälin, “the UPR provides states with an opportunity to promote rights that have not yet found universal recognition, in the hopes that they will be increasingly accepted by the international community.” He notes that “Western states [. . .] [use] the UPR to promote sexual orientation and gender identity by regularly making corresponding recommendations.”
The Trump Administration Is Promoting LGBT Rights at the UN Human Rights Council
While the U.S. State Department under President Trump is examining the bedrock principles of unalienable human rights from its Washington, D.C. headquarters, the Department’s Geneva office is exporting a far more expansive—and controversial—concept of rights to the rest of the world, via the UPR.
In every cycle of the UPR thus far, including the current, ongoing one, between twelve and twenty countries out of the 193 UN member states have made over 80 percent of all recommendations that have mentioned sexual orientation and gender identity (SOGI). The first two cycles of the UPR took place during the Obama administration, and the third is occurring during Trump’s presidency. In all three cycles, the U.S. has been among the champions of SOGI.
Although Congress is still hotly debating whether to forbid discrimination on the basis of SOGI—in the controversial Equality Act—Trump’s State Department has already been calling on countries like Belize, Japan, Korea, and Botswana to adopt such legislation. The Department’s other recommendations include—but are not limited to—calls to decriminalize homosexual behavior.
In July, the White House Tweeted that “the Trump Administration has launched a global campaign to decriminalize homosexuality,” inviting other nations to join in. In fact, the U.S. had already made many recommendations on this topic in the UPR since Trump took office—well before the public announcement.
But regardless of the timing of the announcement, the important point to consider is that the campaign is being conducted through the UPR. The U.S. pursues various international objectives, to benefit both itself and people around the world. It undertakes many of these initiatives through bilateral discussions, multilateral summits, and global negotiations. The UPR, however, is a human rights mechanism, which encourages nations to fulfill human rights obligations, based on agreements they have made and treaties they have ratified.
But by which agreements do nations have an obligation to prohibit discrimination on the basis of SOGI, or even to decriminalize homosexual behavior? The UPR’s mandate under General Assembly resolution 60/251 foresees only recommendations “based on objective and reliable information” that encourage “the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States” (emphasis added). When did the states who receive recommendations about “sexual orientation and gender identity” in the Human Rights Council take on any obligations or make any commitments based on these notions? The answer is, never.
How Can the Trump Administration Denounce Those Who Abuse the UN to Promote Abortion When It Abuses the UN to Promote SOGI?
The United States takes very seriously its own obligations under international human rights treaties, which is part of the reason why it has ratified so few of them. Likewise, the U.S. has taken repeated stands against attempts to distort international human rights standards on the issue of abortion. President Trump and his administration have publicly denounced and fought attempts of UN treaty bodies, special rapporteurs, and the governments of fellow nations to insinuate an international right to abortion.
During the high-level meetings of the UN General Assembly in September, the U.S. Secretary of Health and Human Services, Alex Azar, delivered a statement correctly asserting that “there is no international human right to an abortion.” No such right exists in international humanitarian law either, as the U.S. ambassador to the UN, Kelly Craft, told the UN Security Council in October: “The UN should not put itself in a position of promoting or suggesting a right to abortion, whether it is humanitarian or development work.”
If, then, the U.S. does not want to be coerced by the UN into accepting such obligations against international law, why is the U.S. using the UN to pressure other countries to enforce rights that the UN has similarly never agreed upon—and that not even the people of the United States have agreed upon? To the extent that the U.S. uses UN venues to decriminalize homosexuality, or to turn SOGI into a legally protected category, without any justification in international law, it undermines the basis of its pro-life positions in those same venues.
The behavior of the Trump administration in this regard warrants comparison with that of the Obama administration, particularly on the question of abortion.
When the U.S. faced its first review at the UPR under the Obama administration in January 2011, Norway recommended that the U.S. remove its restrictions on abortion, to provide humanitarian aid for women who had become pregnant by rape during wartime. The U.S. responded that it could not support the recommendation “due to currently applicable restrictions” in its own law, namely, the Helms Amendment to the Foreign Assistance Act. The Obama administration certainly did not favor this restriction, but the State Department nevertheless had to defend U.S. law. It did so again in the second UPR cycle when the U.S. was reviewed, in May 2015, still under President Obama. The Netherlands, the United Kingdom, Belgium, France, and Norway all called for the U.S. to clarify or rescind the Helms Amendment to allow abortion in humanitarian contexts; but the U.S. supported none of these recommendations, despite the administration’s broad support for pro-abortion policies.
If the Trump Administration Really Wants to Protect Life, It Needs a More Consistent Policy on International Human Rights
This upcoming May, when the U.S. faces its third review by fellow UN member states, other states will impugn the Trump administration’s bold pro-life policies, including its expanded Mexico City Policy (now known as Protecting Life in Global Health Assistance) and the preexisting Helms Amendment. If the State Department under Obama was willing to defend the U.S.’s pro-life laws because they are U.S. laws, there is reason to expect that the Trump-led State Department will continue to do so, and with even greater vigor, because they also support the pro-life position. However, unless the administration stops illegitimately pushing SOGI rights, its pro-life talk will sound inconsistent at best.
It is consistent of the U.S. to defend its laws on abortion at the UPR, because there is no international right to an abortion; and the use of a UN human rights process to imply the existence of one, or to attempt to create one, is fundamentally an abuse of that process. The U.S. is also right to accuse treaty monitoring bodies and special rapporteurs of exceeding their mandates when they pressure countries to change their abortion laws.
But by the same logic, the U.S. should not use the UPR to advance specific rights pertaining to SOGI when the international community, including the UN, has acknowledged no such right. Moreover, to the extent that the U.S. uses such venues to try to decriminalize homosexuality, or to protect SOGI as a legal category, it undermines the basis of its pro-life positions in those same venues; because, again, regardless of this or any administration’s political position on abortion or SOGI, the fact remains that no international agreements on human rights support either of these categories: they are absent from all binding international human rights treaties, including those the U.S. has not ratified.
If the Commission on Unalienable Rights was established to help dispel the growing confusion about what human rights truly are, perhaps its first recommendation should be directed to the same State Department that houses it: Stop using the UN to advance sexual ideologies that have no basis in international human rights law. Even apart from the question of whether such campaigns are worth carrying out at all, they should at least be confined to bilateral relations, or characterized as the political wish of the U.S. and its current leaders—not as an obligation of any global covenant, much less an unalienable right endowed by the Creator.