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May 30, 2006

International Law Hits Home

International law--law not passed or ratified by any United States governmental body--is sometimes being used to decide cases in the United States. Generally conservative justices are against that and moderate to liberal ones are for it. Regardless of the outcome of cases where international law was taken into consideration, Justice Scalia's observation that such cherry-picking of what laws to consider is so open to manipulation is advice well given, and hopefully well taken.

However, if you think that such decisions will generally be made on strictly the larger constitutional issues, you'd be wrong. Increasingly, the weight of international law is being felt right in the home.

A home schooling association is warning that the U.S., and even more so other countries, faces the threat that home schooling may be deemed illegal due to international law.

The Home School Legal Defense Association's (HSLDA) Chairman and General Counsel, Michael Farris, warns that even though the U.S. has never ratified the United Nations Convention on the Rights of the Child, the convention may still be binding on citizens because of activist judges.

According to a new "interpretation" of what is known as "customary international law," some U.S. judges have ruled that, even though the U.S. Senate and President have never ratified the Convention, it is still binding on American parents. "In the 2002 case of Beharry v. Reno, one federal court said that even though the Convention was never ratified, it still has an 'impact on American law'," Farris explained. "The fact that virtually every other nation in the world has adopted it has made it part of customary international law, and it means that it should be considered part of American jurisprudence."

Under the Convention, severe limitations are placed on a parent's right to direct and train their children. As explained in a 1993 Home School Court Report by the HSLDA, under Article 13, parents could be subject to prosecution for any attempt to prevent their children from interacting with material they deemed unacceptable. Under Article 14, children are guaranteed "freedom of thought, conscience and religion" - in other words, children have a legal right to object to all religious training. And under Article 15, the child has a right to "freedom of association." "If this measure were to be taken seriously, parents could be prevented from forbidding their child to associate with people deemed to be objectionable companions," the HSLDA report explained.

Judges, it seems, are now the arbiters of what should and shouldn't be law. But a judge that makes a ruling in a case based on law that the citizens' representatives have rejected does so without giving the citizens any possible recourse. We can then be judged based on rules we have not the slightest influence in creating. How in the world is that government of the people and by the people? It is a further step away from our representative republic and towards a judicial tyranny; whoever controls the judges makes the rules.

And what sort of things can come from the innocuous-sounding "United Nations Convention on the Rights of the Child"?

Farris explains that, in 1995, "the United Kingdom was deemed out of compliance" with the Convention "because it allowed parents to remove their children from public school sex-education classes without consulting the child". Farris argues that, "by the same reasoning, parents would be denied the ability to homeschool their children unless the government first talked with their children and the government decided what was best. This committee would even have the right to determine what religious teaching, if any, served the child's best interest."

I'm quite glad that Sandra Day O'Connor is no longer a part of the Supreme Court.
"I suspect," O'Connor said, according to the Atlanta daily, "that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues."

Doing so, she added, "may not only enrich our own country's decisions, I think it may create that all important good impression."

Because, as Bush's critics keep insisting, it's more important to have the rest of the world love us. Justice for Americans, and for the new republic of Iran, takes a back seat. Way back.

Posted by Doug at May 30, 2006 02:10 PM

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Tracked on May 31, 2006 07:14 AM


That article was deeply deficient to the point of being scare-mongering. The decision referenced was a bad one, but there's no danger that the convention on kids' rights will interfere with homeschooling. The judge himself notes that customary international law is only applicable in cases in which other nations have some tangible stake (that's not an empty phrase, but a high bar).

The article, in other words, is plainly dishonest. Is it possible that some rogue judge may make a preposterous decision re: customary intl law? Sure. Does the decision referenced have anything whatsoever to do with such a possiblity. No.

Posted by: jpe at May 31, 2006 10:36 PM

We can then be judged based on rules we have not the slightest influence in creating.

Not so much. The judge in the case notes that customary intl law can be superseded by express statute. What the judge is announcing is pretty standard statutory construction fare: construe statutes in accordance with other authorities. Then, if the legislatures disagree with such a construal, they're free to make that known and supersede the construction.

Posted by: jpe at May 31, 2006 10:40 PM

I'll accept that your explanation is accurate, though that would, in my opinion, have made Sandara Day O'Connor a "rogue judge" in a place we can't afford to have them.

While you noted that customary international law can be superceeded by local statute, this mean that every locality must specifically speak to every international law they disagree with. I find this a rather difficult situation to place all of them in. Instead of that, wouldn't it be easier, and much more legally sound, to not be allowed to take into account laws that the citizens don't have the ability to influence? That way, you can't have rogue judges, because they can't look outside the country for law they'd like to enforce.

Whether "customary international law" is a well-known legal concept or not (I profess ignorance in this), I'm not at all in favor of applying it to a representative republic like ours. I don't like the idea that if we haven't legally and specifically said "No" to a treaty that we never signed that it can still be applied to us.

Posted by: Doug Payton at June 1, 2006 10:38 AM