To the surprise of no one, liberal critics of the Trump administration strongly criticized the recent report of the US State Department’s Commission on Unalienable Rights.
Considering the Commission’s conclusion—that every individual is entitled to respect and human rights by virtue of his or her dignity as a human being—you wouldn’t think the report would be controversial. But no: the report “undermines” such rights, according to Human Rights Watch.
These groups are right that committees nominally dedicated to human rights can be used as a front for efforts to subvert such rights, but they’re wrong to accuse the Commission on Unalienable Rights. Instead, they should look to the United Nations. Systemic problems exist within the UN’s human rights apparatus, contributing to its poor track record of protecting fundamental rights and freedoms.
The UN’s human rights mechanisms can only succeed in promoting and protecting human rights if they are able to claim authority and legitimacy in the eyes of the UN member states. Such legitimacy is undermined when UN treaty bodies or bureaucrats exceed their mandates, stretch the boundaries of their code of conduct, or expand and redefine the very treaties they are called upon to uphold. UN human rights experts and bureaucrats ought neither create nor promote new rights without authorization from the member states. This is especially true when such new rights undermine or threaten real fundamental human rights—such as life, freedom of religion or belief, and conscience—that are enshrined in the UN’s founding documents and codified in international law.
The UN’s Report on Gender-Based Violence and Discrimination
A particularly egregious example of this broader trend of the UN’s politicization and redefinition of human rights is a report that the Special Rapporteur on freedom of religion or belief, Mr. Ahmed Shaheed, delivered to the Human Rights Council on gender-based violence and discrimination in the name of religion or belief. This recent report is among the boldest attempts by progressives within the human rights bureaucracy to assert new rights, promoting abortion and affirming expressions and conduct associated with sexual orientation and gender identity, while sacrificing the internationally recognized right to freedom of religion and conscience protections in the process. As such, it should greatly concern those who prize life, family, and religious freedom.
The stated purpose of the report by the Special Rapporteur was to address the subject of gender-based violence and discrimination in the context of freedom of religion. It could have focused on the substantive violations of religious freedom that many women around the world experience, particularly women from minority religious communities who are too often targeted for mistreatment and violence. Instead, this report focused almost exclusively on condemning those who believe in protecting the unborn, marriage as the union of one man and one woman, and the immutability of biological sex.
Ironically, this report by the putative expert on—and advocate for—religious freedom treats religion and religious believers as the problem. The Special Rapporteur included a list of “gender-based violence and discrimination resulting from state laws and policies that are grounded in religious ‘justifications’” in the report’s key findings. He further “notes that States that maintain laws criminalizing consensual same-sex relations have occasionally referred to religious ‘justifications’ for maintaining them… on the grounds that [such a legal prohibition] upholds the tenets of Islam or Christianity.”
The Special Rapporteur also included “state restrictions on access to sexual and reproductive rights” in the list of examples of gender-based violence and discrimination. He notes with concern that “in a number of countries around the world, governments continue to maintain partial or total bans on access to abortion, and religious figures have both encouraged these measures and advocated against efforts to reform the laws.” And he expresses disapproval for “discriminatory religious edicts [that] inform laws and policies that restrict sexual and reproductive rights,” including “partial or total bans on access to abortion and contraception, prohibitions on assisted reproductive technologies and gender reassignment surgery, and limits on the provision of evidence-based sexuality education.”
The report goes on to describe accommodations on the basis of religious belief as an area of particular concern, and questions whether conscientious objection by medical practitioners to providing abortions should be permitted at all.
The fact that the Special Rapporteur considers sincere religious believers and advocates for life, family, and traditional marriage as perpetrators of gender-based violence and discrimination, simply for acting on the tenets of their faith, is particularly troubling. His report represents a direct attack on religious liberty and the right to life, as well as on parental rights and conscience protections. And it takes specific aim at the United States for permitting conscientious objection exemptions for those who oppose performing abortion or providing contraception on the basis of religious belief. The report also cites complaints based on an individual’s sexual orientation or gender identity in the provision of adoption and the provision of commercial services.
Religious Freedom Protections Under the Trump Administration
Thankfully, these are some of the very religious freedom issues that Congress, the courts, and the Trump administration have been working to address domestically.
For example, the administration has submitted briefs in cases at the Supreme Court addressing conflicts between religious liberty and policies based on sexual orientation and gender identity, including in Masterpiece Cakeshop and this fall’s upcoming adoption case, Fulton v. Philadelphia. In Masterpiece, the Supreme Court, in a 7-2 decision, upheld the rights of master cake designer Jack Phillips not to have to lend his artistic talents to endorse the concept of same-sex marriage. The ruling was consistent with the Court’s statement two years earlier in Obergefell v. Hodges that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”
Similarly, the Fulton case involves Catholic Social Services, a faith-based organization whose practices reflect the Catholic Church’s teaching that every child deserves both a mother and a father. The Department of Justice brief describes Philadelphia’s decision to terminate the charity’s foster care contract as unconstitutional because it “singled out religious organizations for investigation, suggested that religious beliefs are merely a pretext for discrimination,” and “passe[d] judgment upon or presuppose[d] the illegitimacy of religious beliefs and practices.” While no person should be discriminated against simply because he or she identifies as gay or transgender, support for the truth about marriage and biological sex is not discrimination.
The Department of Justice also weighed in this year in defense of biological reality in standing up for women and girls’ opportunity to compete in all-female sports. And the US has a long history of protecting the right of Americans to conscientiously object to abortion and contraception, as evidenced by Supreme Court cases including the Little Sisters of the Poor and Hobby Lobby and, most recently, the Trump Administration’s establishment of the Conscience Division at the Department of Health and Human Services. The UN report’s treatment of the religious beliefs of American individuals and organizations as illegitimate raises concerns about sovereignty as well as bias.
A Broader Trend
While the Shaheed report is a particularly egregious example of the problem, it is not an outlier.
Consider abortion. Even though protections of the right to life are enshrined in international human rights law, UN treaty bodies and human rights officials routinely reinterpret the rights to health, gender equality, and even the right to life itself to include a woman’s right to abortion. UN entities such as the United Nations Population Fund, the World Health Organization (WHO), the United Nations Development Programme, and UN Women promote access to “safe” abortion and include abortion as a component of “sexual and reproductive health” for women and girls.
The right to freedom of religion, too, is under attack. Both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights explicitly protect the freedom to manifest one’s religious beliefs in private and in public, as well as individually or in community. Furthermore, international law emphasizes the importance of conscience, so much so that freedom of conscience joins freedom of thought and freedom of religion or belief as non-derogable rights that governments cannot limit even during times of emergency. Regardless of prevailing sentiment at the UN or among liberal elites, this right to manifest one’s beliefs must apply to those who profess traditional beliefs about the creation of man and woman, the definition of marriage, and the sanctity of life, including unborn life.
Part of the problem is that the process surrounding the selection of UN human rights experts is very political, and often results in the selection of controversial figures who prioritize their own ideological commitments over their duty to abide by international agreements on human rights. The new Special Rapporteur for physical and mental health, Tlaleng Mofokeng, for example, is an outspoken advocate for decriminalizing prostitution and an abortion doctor who has spent over a decade performing abortion services.
Earlier this summer, the UN’s Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Mr. Victor Madrigal-Borloz, issued a report on “Practices of so-called ‘conversion therapy,’” in which he condemned efforts by religiously motivated family members or therapists to help an individual who wants to become comfortable with his or her body or who struggles with same-sex attraction. But as my Heritage Foundation colleague Ryan Anderson has noted, calls for these sorts of therapy bans “[impose] an ideological ban because the state disagrees with the viewpoint of certain professionals. It’s not targeted at harmful practices, but at particular values.”
The UN Special Rapporteur on the right to privacy, Mr. Joseph Cannataci, is currently soliciting submissions for input on his new report that will “examine the privacy rights of children and how this right interacts with the interests of other actors as the child develops the capacity for autonomy.” This forthcoming report will explore issues such as the “development of personal identity . . . including gender identity and expression” and the “sexual development of the child and the importance of private spaces for the child, both on-line and off-line, in which one’s sexuality can be further explored.” It doesn’t take much creativity to imagine the type of recommendations that this Special Rapporteur will include in the report, many of which will certainly impinge on parental rights and religious liberty.
Protect Fundamental Rights—Don’t Fabricate New Ones
In these and countless instances, the UN human rights mechanisms have succeeded in elevating their liberal policy goals over fundamental human rights that have been codified in international treaties. These recent reports provide further evidence of why the UN General Assembly must act to rein in the UN human rights bureaucracy in order to protect fundamental rights for men, women, and children all over the world.
Individuals who are victims of abuses against their fundamental human rights can and should be defended and protected using existing human rights laws and norms, regardless of their race, nationality, gender, sexual orientation, or any other distinguishing characteristic. UN member states and human rights advocates alike should work to promote and protect fundamental, natural human rights, not redefine or eliminate rights based on their particular policy preferences. Similarly, UN human rights experts and bureaucrats must neither create nor promote new rights without authorization from the member states, especially when such new rights undermine or threaten the fundamental human rights that are protected in international treaties.
As the report of the Commission on Unalienable Rights astutely points out, “The carefully negotiated language of these documents matters. If agreed-upon formulations and understandings are cast aside or stretched beyond recognition, the language of human rights becomes endlessly malleable and untethered from principle.” Greater respect for fundamental rights and human dignity is exactly what the UN needs now.