Top Conservative Law Professors Debate UN Lawmaking

NEW YORK, January 24 (C-FAM) Is human rights law really law if there is no way to enforce it and no remedy for the wrongs that are done? Legal experts came down on opposite sides during a week-long seminar for the Edmund Burke Fellows last week in New York.

Not only is the international rights regime "hortatory," but it can do real harm. "It breaks the link between historical and political community, turning citizens into mere subjects," said George Mason University's Jeremy Rabkin. He cited Britain's throwing out a thousand year-old constitutional process after bureaucrats in Brussels told them it was not consistent with EU policy.

What's more, human rights rhetoric can jeopardize national security by displacing serious measures with formulaic answers in difficult and complex situations, Rabkin cautioned. He cited the Obama administration's anemic response to crises in Libya and Syria in the name of protecting human rights.

Despite serious drawbacks, the United States should still engage other nations through the rights regime, countered Grover Joseph Rees, former US ambassador for economic and social affairs at the UN. He told the group of law students gathered for the annual seminar that he used rights standards effectively as a tool to press recalcitrant governments to comply with democratic ideals. He said the Obama administration has hampered such efforts in places like Vietnam, where diplomats and jurists demur from pressing Hanoi to release political prisoners because the government has complied with Washington's homosexual and transgender agenda, which the Obama administration has given top priority in its diplomatic and military contacts abroad.

Twenty-five countries liberalized their abortion laws between 1997 and 2011 under "significant" international influence, St. Thomas University's Teresa Collett said. Part of the pressure comes from abortion activists' "strategic litigation strategy" which helps convince legislatures and high court judges to change laws by considering the views of UN human rights experts as "jurisprudence" even though they have no such legal significance.

"When the U.S. Supreme Court hears Roe v. Wade again, abortion activists want to make sure as many countries as possible have legalized abortion," Collett said. The court has already taken international legal jurisprudence into account when deciding domestic cases. For that reason, and because the US Constitution makes treaties the "law of the land" once ratified, Collett told the fellows that the US Congress is right to be cautious about ratifying any international human rights treaty.

Regional rights bodies also reinterpret governments' legal obligations by "finding" new rights in existing treaties, said Notre Dame University's Paolo Carozza. Carozza served on the America's highest human rights commission when that body used dubious tactics to pressure Costa Rica to legalize in vitro fertilization (IVF) despite the fact that it was contrary to the nation's constitution.

Carozza and Collett said they remain optimistic that human rights bodies can and should be engaged by members who can persuade colleagues to uphold a proper understanding of the law and not succumb to pressure from special interests. Collett, who helped prepare legal arguments for Costa Rica in the IVF case, urged the fellows to get involved however they could, such as in the preparation of amicus briefs for nations trying to defend laws protecting human life and the family.

The Edmund Burke Fellowship is a C-FAM program that brings law students and graduate student in international relations to C-FAM’s UN office for a week of intensive study and briefings on UN topics.

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