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The Schizophrenia of International Human Rights Law

by Dr. Michael Farris
April 13, 2010

Michael P. Farris served as founding president of Patrick Henry College (2000-2006) and is now Chancellor. In addition to teaching Constitutional Law and coaching the Moot Court team, he organizes a mentorship program for PHC students called Tyndale's Ploughmen. He serves as Chairman of the Home School Legal Defense Association. Read full bio.

My work against the UN Convention on the Rights of the Child required me to dig deep into the subject of international law, particularly as it intersects human rights. 

It convinced me that the human rights movement is absolutely schizophrenic, fraught with severe inconsistencies that, if not corrected, will ultimately mark its doom.

First some background.

The movement for international human rights was launched as a worldwide reaction to the atrocities of Nazi Germany.  The outrage stemming from the Holocaust was the most significant, but not only, rationale for the launch of this movement. 

It is also widely accepted that the creation of the United Nations was in large part a response to the horrors of the Second World War.  The singularly most important document promulgated by the UN in its early years was the Universal Declaration of Human Rights (UDHR) in 1948.

Article 21 contains a bold declaration of the human right of self-government, proclaiming that “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” It states that the “will of the people shall be the basis of the authority of government.”

In 1966, the UN published a follow-up treaty entitled the International Covenant on Civil and Political Rights (ICCPR), listing first the human right of self-government. In Article 1 section 1, it states: “All peoples have the right of self-determination.”

What is the difference between these two documents? Why was there a need for the ICCPR in 1966?

The chief difference is that the latter purports to be binding law while the former does not.  The original UDHR was a statement of political philosophy—an altruistic declaration of principles endorsed via a vote on the floor of the UN General Assembly.  It is not law and is not enforceable.

The move toward the ICCPR was meant to put legal force behind the principles of the UDHR. While the 1948 document covers five kinds of rights (civil, political, social, economic, and cultural), the UN divided these five topics into two separate treaties. The ICCPR’s twin, also promulgated in 1966, is called the International Covenant on Economic, Social, and Cultural Rights. 

The United States became a party to the ICCPR during the Clinton administration but has not ratified its “economic rights” twin.

Taken collectively, human rights treaties contain government guarantees of social security insurance, government-funded education and healthcare, and governmental duties to provide food, clothing, and shelter for every person on the planet. They also include rights to form labor unions, protecting speech and religion, and rights for fair and equal treatment in the courtrooms and other institutions of government.

Here’s the kicker.  If your government fails to live up to its treaty obligations, the international community can impose legally binding sanctions to force your government to give you your rights.

But what if a majority of the voters of a particular nation don’t want government guarantees of healthcare?  International law imposes legal sanctions against such a nation because the failure to provide government healthcare denies the “human rights” of those who need this service.  International law purports to trump national policy decisions.

How is this consistent with the idea of self-government and national sovereignty? 

Professor Geraldine Van Bueren of the University of London—an expert on the international rights of children—says that ratifying a human rights treaty narrows “what were previously unfettered discretionary powers of governments. In essence, the government has exercised its political powers, and it has to live with the legal consequences.”

In other words, once a treaty is ratified, the very idea of self-government has been negated or at least substantially restricted. 

While the 1948 UDHR contained many socialistic concepts unacceptable to principled conservatives, it got one thing right.  Human rights statements are declarations of principles. They are not laws.  And—I would add—they should not be made into international laws because it is simply not possible to enact an international law that has domestic effect without violating the human right of self-government.

The American Founders got it right. Self-government is the only form of government that is consistent with liberty.

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