A Deeper Understanding of the Threat of International Law
by Michael P. Farris
In 2006 I made the case for a parental rights amendment to the United States Constitution. Even though parental rights are recognized as a fundamental right under current Supreme Court doctrine, there are two threats to recognition of this principle.
First, a growing number of Supreme Court justices refuse to recognize that parental rights are a fundamental right. Justice Antonin Scalia, a noted conservative, holds that parental rights are not judicially enforceable at all until there is a specific parental rights provision in the Constitution.
The second threat is the growing use of international law in American courts. If the United Nations Convention on the Rights of the Child becomes binding in this country, then parental rights as we know them will be erased. Moreover, all state laws which recognize the right of homeschooling will be superseded by international law to the extent that international and federal courts believe these laws are in conflict.
This article takes you into an in-depth analysis of the threat of international law based on substantial formal study that I have undertaken in the last year. The article is adapted from a speech I gave in 2007.
The question at the heart of the American Revolution was who had the moral authority to make the laws that bound the American colonies. The answer of our forefathers was that only the American people themselves or their elected legislative bodies have the moral authority to make laws.
In light of this history, the first question any of us should ask about international law is: Who has the authority to make international law? And a second question follows immediately: Who is subject to international law? And the third question to complete this series is: What are the types of activities and subject matters that can be regulated through international law?
The Charter of the United Nations-a treaty which we, like all other members of the UN, have agreed to-contains an annex which defines the sources of international law that are to be used by the International Court of Justice. Article 38 (1) of this annex states,
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.1
Let me restate these ideas in more familiar words. There are five methods of creating international law:
- Customary international law
- Rules of civilized nations
- Judicial decisions
- The teachings of the most highly qualified publicists
It would take a long time to fully explain each of these categories, but one observation is easily made: Only one of these five ways of making international law requires the consent of each nation before that nation is bound by a particular provision of international law. Treaties are binding only when individual nations consent. All other forms of international law can bind nations even without their consent.
Customary international law (CIL) purports to bind every nation in the world when the vast majority of nations agree on a principle of law. But a dissenting nation is bound regardless of its own desire under this legal theory.
Moreover, customary international law can be made by "the teachings of the most highly qualified publicists"-that is, professors of international law.
In fact, there is a committee of international law professors who work under the sanction of the International Law Association (ILA) who claim the authority to determine the rules of customary international law that the whole world must obey. It is called the "Committee on the Formation of Customary (General) International Law." It is composed of 24 international law experts-mostly professors of international law. The International Law Association holds consultative status with many of the specialized agencies of the UN.
One of the rules the ILA adopted blatantly proclaims the principle that a nation is bound by a rule of customary international law even if that nation never consents:
(iii) Where a rule of general customary international law exists, for any particular State to be bound by that rule it is not necessary to prove either that State's consent to it or its belief in the rule's obligatory or (as the case may be) permissive character.2
To test our understanding, let's ask some questions:
- When is a rule of CIL followed by enough nations to be considered customary? When international judges or international publicists declare it to be so.
- Is every nation of the world bound by their declaration? Yes.
- Who made the rule that says that every nation of the world is bound by it? The international publicists. Law professors. Or as I like to call them-tyrants in tweed.
I have a friend who says that the goal of every committee is to rule the world. The local school board, the women's ministry committee, the student council, the Supreme Court, and the Committee on the Formation of Customary (General) International Law all have tendencies to expand the scope of their jurisdiction. But only this group of 24 law professors openly proclaims that it binds the whole world-even those who disagree.
Even though it is widely understood that there is an international human right to democratic self-government, the committee of 24 says "customary systems are rarely democratic" and "the international system as a whole is far from democratic." Logical consistency is not the long suit of international law.
Our first question was: Who has the authority to make international law? While there are multiple answers, it is perfectly accurate to say that much of international law is made by the internationalist elite without regard to any need for consent by all the nations that are required to obey.
This brings us to our second major question: Who is subject to international law? Until World War II, the answer to this question would have been clear: Only nations acting through their government officials are subject to international law.
But the war crimes of the Nazis led to a rash of internationalism and a cry for the worldwide enforcement of human rights.
Before the human rights movement had taken hold, it was common to say that states-that is, nations-were the subjects of international law. Individuals were only the objects (that is, the beneficiaries) of international law and not the subjects. Saying it another way, only nations and governmental officials could sue or be sued under public international law. With the advent of international human rights law, individuals are gaining ground as having legally enforceable rights. Individuals may, in a number of instances, bring a suit to enforce their international rights against their own government.
Under the UN Convention on the Rights of the Child (CRC), the circle is complete. A child acquires international rights under the CRC. And it is not only the government which may be held to violate the rights of the child. Private persons, including parents, may also be held to violate the international rights of the child.
The CRC itself does not provide for judicial enforcement in the international courts. But in several nations, including the United States, the violation of international rights can be pursued in the domestic courts. In other words, if the CRC becomes binding law in the United States, your child could sue you in U.S. federal or state courts for violating his international human rights.
There are more advanced theories percolating in the system which would extend the right to sue for individual violations of human rights laws in international courts even when there are no treaties in effect which call for such judicial enforcement. I predict that such arguments will be adopted within 20 years.
Let's review our second question: Who is subject to international law? Governments and all the people as individuals on the face of the earth are potentially subject to international law. All can sue. And all can be sued on the basis of international law violations.
Now we turn to our third question: What are the types of activities and subject matter that can be regulated through international law?
Let me quote from a textbook on children's international rights to give you the basic answer: "Human rights are classified into civil, political, economic, social, and cultural rights."3
If a child does not have enough to eat, that is a violation of his economic rights.
If a child does not have a sufficient opportunity to play, that is a violation of his social rights.
If a decision is made for a child by his parents in a manner that is inconsistent with the UN's view of the child's best interest, that is a violation of his civil rights.
Economic rights include the right to adequate provision of housing, food, clothing, education, and health care. These are not merely good goals; each nation is obligated to ensure that each child has adequate provision in each of these areas. And that child has the human right to demand that the national economic planning be reconfigured to ensure that these goals are met.
The Supreme Court of South Africa used international law to rule that the government of South Africa was in violation of children's rights by the fact that children were living in substandard housing. The government was ordered under the authority of international law to provide acceptable housing to the affected children.
Most Americans would agree with the goals of about 80% of the human rights in the categories of civil and political rights. Most of these would be parallel to provisions of our own Bill of Rights. However, just because we would agree with the goals of such rights, we would not agree with the use of international law to achieve these goals.
Moreover, we would not agree with even a bare majority of the goals of the social, economic, and cultural rights that are promulgated by various human rights conventions, including the CRC. In short, there is a human right to live under socialism. The CRC, in particular, has this objective: "as Shamgar-Handelman observes, the efforts at standardising children's rights, although only negotiated between adults is an "expression of utopian belief in world democracy... an ideology of equal sharing of resources..." 4 (ellipses in original).
The developing moral theory of human rights law is made clear by a recent proclamation of Amnesty International. Abortion is a human right, Amnesty contends. We might think that their statement is just political talk with no legally binding effect. But we should remember the provision of the UN Charter that international law may be made by the "teachings of the most highly qualified publicists of the various nations." There is no doubt that Amnesty International has a claim to such status. Moreover, Amnesty's view on abortion rights is shared by the dominant majority of their fellow tyrants in tweed-the international law professors.
When you read things like that in the newspaper, you thought they were just spouting off. Amnesty understands it quite well. Their press releases help form the body of international law.
Can you think of an area of law that does not fall within the subject of economic, social, cultural, political, or civil rights? I can't either.
We can summarize the answers to all three of our questions in this way:
- The creation of international law does not require the consent of every nation.
- It governs every nation and every individual, and it encompasses all economic, social, cultural, political, and civil issues.
- Everyone and everything may be governed by international law without the necessity of our nation's consent.
But wait, there's more.
In my study I learned that there is a treaty on treaties. The Vienna Convention on the Law of Treaties was created in 1969. The United States has never ratified this treaty. However, U.S. courts and legal experts agree that this treaty is an accurate distillation of customary international law. Thus, they claim that the United States is bound by the Convention on Treaties even though we have not ratified it.
Article 18 of the Convention on Treaties says that a nation which signs a treaty subject to ratification may not adopt laws and policies which are contrary to the treaty until such time that it has made a clear statement that it does not intend to adopt the treaty.
The Clinton Administration signed the UN Convention on the Rights of the Child in February of 1995. Thus, America is not free to make new laws contrary to the CRC until we renounce this treaty.Moreover, a U.S. federal district court ruled in two separate cases that the CRC has already become part of the customary international law. Accordingly, this federal court ruled that we are bound by the CRC even though this treaty has never been sent to our Senate for ratification.
Additionally, Article 27 of the Vienna Convention on Treaties says that a nation may not justify its failure to obey international law based on a requirement of its domestic law. However, Article 46 of this Convention provides the only exception, stating that if the fundamental law of the nation makes it manifest that international law may not govern a particular area, then no treaty may bind it.
Now you understand why it is important to provide, as our draft of the parental rights amendment does, that no provision of international law may override this amendment. That is the rule for the repudiation of treaties. I have also learned that there is only one method to repudiate a rule of customary international law. It is called the "persistent objector rule." If our nation openly and persistently rejects the application of an alleged rule of customary international law, then we are not bound.
When the United States Supreme Court used the CRC as persuasive authority to make its decision on the issue of juvenile death penalties, it did the exact opposite of what is necessary to establish our nation as a persistent objector. And, by employing the CRC in this manner, the Supreme Court added to the weight of the claim that the CRC is in fact customary international law.5
It should be remembered that Harvard Law School is requiring all of its first-year students to study international law so that they will learn to think of all law, including American constitutional law, through the lens of international law.
The situation is bad today, but it is easy to see that it is likely to get worse-much worse.
The sovereignty of our nation is at stake. Sovereignty is nothing more than the principle of self-government, which proclaims that the American people, through their elected legislatures, have the sole right to make rules which will govern this nation.
We are poised to lose the right of self-government within the next generation. It won't feel like we are losing self-government-at least not entirely. The internationalists will let us make our own policies except when those policies disagree with their standards.
We have only one shot at stopping this movement. And the burden rests on us to alert our friends and neighbors to the issue we all face.
If you want to help stop the erosion of parental rights at the hands of international law, then we ask you to go to ParentalRights.org and sign the petition to become a citizen co-sponsor of the constitutional amendment. This means that you promise to call your senators and congressmen to support parental rights.
We need your help to send everyone you know to the ParentalRights.org website to join in proclaiming that "We want to preserve our families and our nation against the threat of international law."
The internationalist elite do not want children reared in the nurture and admonition of the Lord. We disagree. But more importantly, God's word is clear on the matter.
International law is dangerous and powerful. Eternal law is far more powerful and good, because it reflects the character of God.
This is the crossroads of our generation. Which will we choose? Internationalism and socialism and moral relativism? Or liberty and self-government and virtue? God's people must rise up. And if we do, He will deliver the victory.
2 International Law Association, Committee on Formation of Customary (General) International Law, "Final Report of the Committee: Statement of Principles Applicable to the Formation of General Customary International Law," 2000.