May 23, 2013 (C-FAM.org) – Ten years ago, the late, great American jurist Robert Bork wrote a short book entitled Coercing Virtue: The Worldwide Rule of Judges. He described how the “American disease” of judicial legislating—activists using constitutional courts “to outflank majorities and nullify their votes” on controversial social issues—was becoming a global phenomenon.
Among other examples, Bork noted a conference held in London in 1999 “to consider ways of making homosexual conduct a constitutional right in various nations.” As happened with abortion—a phenomenon documented in Susan Yoshihara’s and Douglas Sylva’s Rights by Stealth—a coterie of “experts” in the field of “human rights” tasked themselves with refashioning norms in the area of “sexual orientation and gender identity” and exporting such novel norms to countries that adhered to old-fashioned principles such as rule of law and constitutional separation of powers.
On May 7-10 at the Supreme Court of Belize, in the case Orozco v. Attorney General, a fascinating legal clash occurred when the proponents of the “new rights” brought their traveling roadshow to this small, English-speaking Central American nation.
Claiming that “international law” required the striking of a facially neutral statute prohibiting “carnal intercourse against the order of nature,” Lord Peter Goldsmith, Q.C.—the former Attorney General of England and Wales, acting for the intervening Commonwealth Lawyers Association, the Human Dignity Trust, and the International Commission of Jurists—appealed not to the language of a specific treaty, nor to customary international law (properly understood), but rather to his own obiter dicta and a variety of non-binding “soft law” declarations by United Nations Committees and personalities pointing to “evolving standards” of “international jurisprudence.”
Central to Lord Goldsmith’s “international law” argument was an appeal to what he repeatedly (and incorrectly) referred to the “decision” or “ruling” of the Human Rights Committee (HRC) in the 1994 “case” In re Toonen, which he declared to be an “authoritative” interpretation of obligations under the International Covenant on Civil and Political Rights (ICCPR).
Toonen, a proceeding under the optional protocol to the ICCPR that addressed the Australian state of Tasmania’s anti-sodomy law, carries no such weight and imposes no obligation on sovereign nations, even upon Australia, which was party to the proceeding. In fact, it was entirely precatory. (One of Goldsmith’s slips was the assertion that Tasmania actively defended the statute before the Committee, which is impossible, as a local unit of government has no standing under an international treaty.)
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Far from being a binding adjudication, Toonen simply expresses the “Views” of the Committee. Yet, as happened in the courtroom in Belize, such Views are often elevated by ideologically-driven trans-nationalist activists who claim it has the force of obligation.
The ICCPR’s text limits the HRC to receiving reports and issuing non-binding “general comments” to such reports. The HRC has no authority to add rights to the ICCPR, its power circumscribed by the four corners of the document.
Likewise, under the optional protocol, the HRC may receive “communications” from a complainant against a State Party to the protocol—though never against a non-State Party such as Belize, which never acceded to the protocol—and issue advisory Views.
Indeed, as Michael O’Flaherty, an HRC committee member and self-identified homosexual has candidly written: “Treaty bodies do not have judicial powers and in no case have they been empowered to determine violations of the treaties by the state parties.”
This is not only the opinion of O’Flaherty, it is also the official position of Lord Goldsmith’s own government with regard to HRC pronouncements: “The United Kingdom is of course aware that the General Comments adopted by the [Human Rights] Committee are not legally binding.” Likewise the United States has stated that the ICCPR “does not impose on States Parties an obligation to give effect to the [Human Rights] Committee’s interpretations or confer on the Committee the power to render definitive or binding interpretations” of the ICCPR. To further gild the lily, the US has also stated that the “Committee lacks the authority to render binding interpretations or judgments” and the “drafters of the Covenant could have given the Committee this role but deliberately chose not to do so.”
Counsel for a coalition of Belizean Churches, Eamon Courtenay, S.C.—the former Attorney General of Belize—rebutted Goldsmith’s Toonen claims, pointing out that even a State participant to a proceeding under the optional protocol was free to reject its Views, as Peru has done in the matter ofKaren Llontoy. In that proceeding, the HRC exceeded its authority by opining that Peru should alter its laws to allow eugenic abortion in the case of fetal abnormality; as with sodomy, abortion is not a “right” found in the ICCPR.
Moreover, as Belize never acceded to the Optional Protocol, Toonen could only be of academic interest.
Going to the heart of the issue before the Court, as well as the issue raised by Robert Bork a decade prior, Courtenay then raised a fundamental question: in a constitutional system of self-government, who gets to make the laws, a judge or the people through their elected representatives?
Put another way, if standards truly are “evolving” and constitutions are to be considered “living documents,” with non-binding transnational “soft law” norms coming into play, who determines the substance and the pace of such an evolution? If the law should be revised to reflect changed societal mores—the elevation of what was once universally considered an objective wrong (such as sodomy) into a “right”—is such change to be imposed by a court, or should judges exercise restraint and defer to the legislature? If it is a role of judges to fashion new rights, in what sense are a people self-governing? While the façade of representative democracy may remain, has not an unelected oligarchy arisen, and the separation of power principle been rendered meaningless?
Following the close of arguments, Chief Justice Kenneth Benjamin announced that he was reserving judgment until the end of the Court’s session in July.
This article originally appeared on the website of C-FAM.org and is reprinted with permission.