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ACLU and International Law
By Mike Phillips
I recently had an illuminating email exchange with several prominent
members of the American Civil Liberties Union regarding the
significance of the United Nations Universal Declaration of Human
Rights and its ramifications on the civil liberties of Americans.
The United Nations Universal Declaration of Human Rights is a critical
document affecting the rights of all citizens of the world.
In 1990 President George Bush said, "the Bill of Rights, the
Universal Declaration of Human Rights, and the more recent Helsinki
accords -- derive their value and promise from the timeless, immutable
truths they contain and our solemn commitment to upholding them."
In 1998 President Bill Clinton remarked, "it is necessary that we
affirm our belief in the primacy of the Universal Declaration of Human
Rights."
Mike Phillips:
I have been a long time supporter of the ACLU through volunteer work
and donations and I would like to continue to support the ACLU.
Could you please tell me what the position of the ACLU is regarding the
United Nations Charter's Universal Declaration of Human Rights? The
clause in this document that troubles me is article 29(3) which states
"These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations."
Obviously the United States Bill of Rights does not a have any clause
like this which essentially voids any right if it happens to interfere
with a goal of the government. I would assume that the ACLU is opposed
to this document and is working to get it changed but I have been
unable to find any information regarding any ACLU opinion or action
regarding this matter.
I appreciate any help you can give me in further understanding the ACLU
position.
ACLU of Southern California, Sharon Murphy, Ph.D., Chapter Coordinator:
Sorry, but I don't know the answer to your question.
ACLU of Colorado, Cathryn L. Hazouri, Executive Director:
I do not know whether the ACLU has taken a position of this measure.
ACLU of Montana, Scott Crichton, Executive Director:
I don't know that the ACLU has taken a position per se on the UN
Declaration of Rights.
ACLU of Nebraska, Spokesman:
ACLU does not tend to take positions on international issues unless
they intersect with civil liberties. Because we are non-partisan and
solely dedicated to preserving the rights promised in the Constitution,
we simply don't have any opinion about matters outside that scope of
our mission.
ACLU of Maine, Charles Samuelson:
I'm not familiar with UN laws but it is my understanding that what
the UN Charter means is that the UN cannot force any government to make
the UN rules the law of the land. In short, the Bill of Rights trumps
the UN Charter in the US - not the other way around.
ACLU of Vermont, Allen Gilbert, Executive director:
Your question is far-reaching and is also perhaps entangled in
international law as well as other charters or documents.
I think the first thing needed to answer your question is context. The
United Nations Charter must somewhere say what the purposes and
principles of the United Nations are. I think that's the first thing I
would want to understand before I went further with any analysis of how
the Declaration does or doesn't conflict with stated rights or
aspirations.
I'm also not clear how you think the Declaration might affect civil
liberties guaranteed to US citizens by our Bill of Rights. If there is
no effect, I don't think the ACLU would take any position on such a
document.
Mike Phillips:
I had always assumed that the ACLU was concerned with any law which
affects the civil liberties of Americans regardless of the law's
origin. Article VI of the U.S. Constitution clearly states "all
Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land."
If American citizens are bound by the terms of the Universal
Declaration of Human Rights, then it is obvious to see how the clause,
"These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations", directly conflicts with
the protections provided by our Bill of Rights. For example, if the
U.N. was engaged in military action against a particular nation and an
American citizen were to exercise his right to "freedom of opinion and
expression" by publishing an article critical of the U.N. action, this
act could be interpreted as "contrary to the purposes" of the U.N. and
therefore a violation of the treaty.
The critical question for those of us concerned about civil liberties
is whether or not a treaty such as the Universal Declaration of Human
Rights has precedence over the U.S. Constitution. John Foster Dulles
who was chairman of the U.S. delegation to the U.N. General Assembly in
1948 at the time that the resolution was adopted made his opinion clear
when he stated, "Treaties can take powers away from the Congress and
give them to the President. They can take powers from the states and
give them to the federal government or to some international body and
they can cut across the rights given to the people by their
Constitutional Bill of Rights."
Does the ACLU have a position on the question of whether or not
international treaties can legally violate constitutional protections?
Also, is the ACLU currently engaged in any activities to protect the
civil liberties of Americans from the potential threat of international
treaties?
ACLU of Maine, Charles Samuelson:
The ACLU is not doing anything at the moment, because nothing is moving
that way that we can see. When an issue arises, we will act but right
now we prefer to let sleeping dogs lie.
Mike Phillips:
I don't quite understand what you mean by "nothing is moving that way."
As far as I can tell, the prominence of international treaties and
international law is continually increasing, especially in this age of
increased globalization. For example, I am sure you are aware of
significance of the Free Trade Area of the Americas agreement which is
scheduled to be presented for ratification in 2005. I would hope that
the ACLU would be concerned if elements of that treaty threatened the
civil liberties of Americans. It is quite disconcerting to discover
how little the ACLU seems to be concerned with protecting our Bill or
Rights from threats posed by international law.
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ACLU and International Law
By Mike Phillips
[...]
It is quite disconcerting to discover
how little the ACLU seems to be concerned with protecting our Bill or
Rights from threats posed by international law.
The Universal Declaration of Human Rights reads like the Bill of Rights.
Do you find conflicts of laws between these two? I don't. I do, however,
perceive hypocrisy and favoritism in the ACLU's interests in the Bill of
Rights, inasmuch as they are indifferent to the following rights guaranteed
under our Bill of Rights, here excerpted from Article 23, UDHR:
Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
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mike_phillips_2004@hotmail.com wrote:
ACLU and International Law
By Mike Phillips
I recently had an illuminating email exchange with several prominent
members of the American Civil Liberties Union regarding the
significance of the United Nations Universal Declaration of Human
Rights and its ramifications on the civil liberties of Americans.
[Mike, could you provide me with their e-mail addys? I've been
having one hell of a time getting their attention.... ;) ]
[snip]
Mike Phillips:
I don't quite understand what you mean by "nothing is moving that way."
As far as I can tell, the prominence of international treaties and
international law is continually increasing, especially in this age of
increased globalization. For example, I am sure you are aware of
significance of the Free Trade Area of the Americas agreement which is
scheduled to be presented for ratification in 2005. I would hope that
the ACLU would be concerned if elements of that treaty threatened the
civil liberties of Americans. It is quite disconcerting to discover
how little the ACLU seems to be concerned with protecting our Bill or
Rights from threats posed by international law.
They're not really worried about the problem, because it really isn't
a problem. First and foremost, the Declaration itself is not deemed to
be a self-executing treaty and therefore, not construed as "the supreme
law of the Land" referred to in Article VI, Sec. 2. Second, although
jus cogens international law has always been federal common law (see,
e.g., Filartiga v. Pena-Irala), where there is an obvious conflict,
statutory law always wins (but see, the Rule of Charming Betsy). I
mean, it's not like we care all that much about breaking treaties any
more.... :)
Besides, the Bill of Rights has been largely overridden by federal
and state "nonpublication" rules, which empower judges to write designer
law applicable to one and only one set of litigants, often at gross
variance from published precedent. The only rights you have are the
ones a judge gives you (see
http://home.earthlink.net/~19ranger57/corruption2.htm) on that
particular day -- and he can take them away from you tomorrow.
The *real* threat to our liberties is the domestic one.
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jls wrote:
[...]
It is quite disconcerting to discover
The Universal Declaration of Human Rights reads like the Bill of Rights.
Do you find conflicts of laws between these two? I don't. I do, however,
perceive hypocrisy and favoritism in the ACLU's interests in the Bill of
Rights, inasmuch as they are indifferent to the following rights guaranteed
under our Bill of Rights, here excerpted from Article 23, UDHR:
Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
It might be more of a matter of resignation to the fact that America
only SIGNS human rights treaties (and otherwise uses international law
as a pretext for invading oil-rich countries), as opposed to observing
and enforcing them. Our record ranks right up there with Somalia and
China. ;)
See http://www.twnside.org.sg/1983-cn.htm for a cogent summary of the
present state of affairs.
Of course, it should further be pointed out that even the U.N. High
Commissioner doesn't see that Declaration as a binding treaty, but that
treaties like the International Covenant on Civil and Political Rights
are intended to be. For the most part, treties are specific enough to
be enforced; for example, Article 8 of the Declaration becomes binding
law by virtue of Article 3 of the ICCPR.
I'm not sure that there is any provision of international law which
could be used to enforce Article 23 and if it has, I'm certain that we
have made reservations with respect to it. :)
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jls wrote:
[...]
It is quite disconcerting to discover
The Universal Declaration of Human Rights reads like the Bill of Rights.
Do you find conflicts of laws between these two? I don't.
The Bill of Rights as written ... or the Bill of Rights as applied?
The most obvious conflict that comes to mind between American law and
the Declaration can be summed up in two words: Puerto Rico.
This American possession, boasting a population slightly smaller than
that of Colorado -- larger than half the "red states" -- has lied in a
no-man's land between statehood and independence for roughly a century.
In Iguartua-De La Rosa v. United States, 386 F.3d 313 (1st Cir.
2004), Judge Torruella cited the Declaration in his dissent, finding
that the disenfranchisement of American citizens who are born *or move*
to P.R. is a gross human rights violation -- one our Founding Fathers
remedied somewhat violently several centuries ago. :)
Never mind that the right to vote is a fundamental right inherent in
citizenship. Tashikian v. Republican Party, 479 U.S. 208, 217 (1986).
(I'm presuming here that it could be found in the First Amendment right
of petition, but I suppose one could quibble on this point.) Still, as
they pertained to the right to vote generally, the 2000/2004 elections
were a *total* disgrace. We no longer have standing to criticize other
Third World countries as to how they conduct their affairs. That right
must be earned. :(
The nonpublication rules I am fighting violate half the Declaration,
insofar as they are inimical to the creation and/or preservation of a
"social ... order in which [said] rights and freedoms ... can be fully
realized." Art. 27, UDHR. They constitute serious violations of the
right to the right of equal protection and even personhood, and if you
aren't a "person" before the law, you have no rights whatsoever. Dred
Scott v. Sandford, 60 U.S. 393 (1856).
America is the only reasonably civilised country in the world which
doesn't make any pretense of even *trying* to comply with Article 25.
The absence of even bare-bones health coverage for many of our working
poor is a genuine disgrace. I don't mean to suggest that everybody is
entitled to care at the Mayo Clinic, but minimal coverage with special
emphasis on preventative medicine ought to be available as a matter of
right.
I do, however,
perceive hypocrisy and favoritism in the ACLU's interests in the Bill of
Rights, inasmuch as they are indifferent to the following rights guaranteed
under our Bill of Rights, here excerpted from Article 23, UDHR:
Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
I'm not so certain that the right to work is duly recognized under
the Constitution, apart from its Equal Protection and Due Process
components (see, e.g., Justice Douglas' dissent in Barsky v. Board of
Regents, 347 U.S. 442 (1954), now considered the better view).
Personally, I don't believe this thread has any real hope of gaining
traction, as it's something you'd be more likely to find in a specialty
law review. Too bad.
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