International Conventions, the Human Rights Regime, and Religious Freedom

on May 19, 2013

Justice Gavel

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by Rick Plasterer

As was noted in an earlier posting, there are several prominent instruments that can be used to impose socially liberal rules on an unwilling nation state or an unwilling majority. These include the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Yogyakarta Principles (pertaining to sexual orientation), and the European Union’s Equal Treatment Directive, dating from 2006, but with a proposed 2008 amendment covering, among other things, religion and sexual orientation. None have been ratified by the United States, where social conservatives have been vigilant in preventing their ratification, but the first two have been ratified by many countries. The third is non-binding, but offers itself as an international human rights standard, while the fourth is a proposed amendment to an existing European antidiscrimination regulation.

The CEDAW illustrates how such conventions can be used by legal activists to make claims about international law which are dubious or wrong, and then use those claims to override laws, public opinion, and even national constitutions. The convention’s very name testifies to its sweeping scope. Enacted in 1981 and by now ratified by most countries except the United States and a few Middle Eastern countries, it has as its object “To modify the social and cultural patterns of conduct of men and women,” which are “based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” This in itself could be seen as an ideological commitment against the complementarity of the sexes, and prohibiting laws and social practices based on sexual complementarity. It lists many highly specific rights, such as the right to career and vocational guidance, opportunities for continuing education, education in family planning, equal opportunities in sports, maternity leave with pay, and social services to free women from family duties that inhibit participation in the public world and the world of work. Like article 30 of the U.N. human rights declaration, the CEDAW incorporates there can be no “reservation” to the convention which is contrary to its purpose.  Thus, any law or policy based on the idea of the complementarity or natural order of the sexes could be judged oppressive, no matter how well reasoned it might be, and in violation of the convention.

The CEDAW committee, established by the convention, receives reports on progress in women’s rights from signatory countries, and makes its own recommendations based on the reports and review of information it receives. Although CEDAW nowhere refers to abortion, the CEDAW committee’s opinion that women’s rights include abortion was used by the Colombian Supreme Court in 1986 to require abortion despite the explicit guarantee of the right to life in the Columbian constitution. The Catholic Family and Human Rights Institute in testimony against CEDAW ratification in the Senate described the CEDAW committee’s activism in pressuring signatory countries to change law and policy to legalize abortion. It might be said that anything else judged contrary to feminist ideology could be ruled illegal based on CEDAW as well. Concerned Women for America likewise has shown the danger of a binding treaty expressing a radical social vision with an attached committee to review law and social practice in signatory countries making authoritative pronouncements on what legal and social changes the treaty requires.

The Convention on the Rights of the Child (CRC) likewise attempts to make social radicalism into binding law for nation states. Here the natural order of parents and children is superseded by the state, which is now charged with determining and enforcing “the best interests of the child.” Like relations between the sexes, the relation of parent to child is prescribed in the precepts of many religions, and government regulation in this area thus negatively affects religious liberty. This convention also has an attached United Nations committee, to which signatory and ratifying states must report and which interprets the convention. The website describes the dangers of this convention. In particular, the CRC was cited by Swedish officials in the infamous Johansson homeschooling case to deprive Christer and Annie Johansson of their son, Domenic.

Two other international instruments are non-binding at the present time, the Yogyakarta Principles, which attempts to set global standards affirming and protecting homosexuality, and the European Union’s Equal Treatment Directive, which is more general but with a proposed amendment strongly impelled by the same motivation. But they deserve mention, as they can be used to claim the existence of international human rights standards on the areas they address.

The Yogyakarta Principles was advanced in 2007 by NGOs associated with the United Nations, and presents itself as an international standard guaranteeing equal rights to homosexuals; it guarantees in 29 principles numerous very specific life situations such as the right to adequate housing, medical attention, seeking asylum, founding a family, and participation in public life that homosexuals will be protected from any adversity resulting from their sexual orientation. Principle 21 in particular guarantees that “freedom of thought, conscience, and religion” does not exist “to justify laws, policies, or practices” that “discriminate on the basis of sexual orientation or gender identity.” Since “freedom of thought” does not exist to justify discriminatory practices, the virtue of homosexuality is essentially offered as a dogma. Thus any liberty of conscience against accommodating homosexual practice in work or life generally is denied. The Catholic Family and Human Rights Institute has presented an analysis of the principles which finds that they undermine religious freedom, freedom of speech, parental authority, state sovereignty,  democratic authority, and any objective social norms in favor of a legal culture based on evolving ideas of rights. The analysis notes that the Principles take “each person’s deeply felt internal and individual experience of gender” as a final authority, not to be contradicted by biological reality, and thus not to be criticized. Indeed, therapeutic attempts to alter sexual orientation are defined as “medical abuse,” and to be prohibited. Revisions in law are to be based on “the particular lives and experiences of persons of diverse sexual orientations and gender identities over time.” The net result is that the wishes of a small minority of the population overrule religious precepts, liberty of conscience, laws and constitutions, impartial scientific investigation, and the wishes of the general public.

The European Union’s Equal Treatment Directive on the provision of goods and services, altered in a 2008 proposal to include religion and sexual orientation, is perhaps the most draconian assault on liberty of conscience of the instruments considered. It proposes to prohibit as discriminatory anything that “creates an offensive or humiliating environment,” as noted in an article shortly after it was advanced for consideration. Not only could persons who feel offended by criticism of abortion, feminism, or homosexuality sue the critic, but in general people are held to be entitled to what they aspire to have, not what objective reality would indicate they deserve. Subjective judgments that one has been ill-treated are opened to legal action as being discriminatory. The end result will be a human rights apparatus with enormous power over society, governing by liberationist ideologies of the left, and in particular by a consideration of hurt feelings.  European Dignity Watch has discussed the directive’s attack on classical liberal freedoms in this 2010 appeal, while the U.K.’s Christian Institute discussed its implications for Great Britain, as well as reporting on the concerns of the nation’s Roman Catholic bishops.

Thus, in all these international instruments, the logic is to guarantee an enormous number of rights, which then must be protected by the state. The irony is that the more rights the state guarantees, and the more comprehensively it attempts to ensure quality of life, the more the state comes to regulate all social relations. Since many religions concern themselves with prescribing social morality, the more the international human rights regime is realized, the more religious liberty is harmed.


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