Earlier, I wrote about how it was a good thing that the Supreme Court blocked foreigners from suing in the U.S. over putative violations of “customary international law” by corporations and other defendants with deep pockets. My conviction has grown stronger, since I learned that the U.N. Committee on the Elimination of Racial Discrimination has ruled that Germany violated international law by not prosecuting a former German legislator for an interview with a cultural journal in which he said negative things about immigration and the alleged dependence on welfare of Turkish immigrants to his country. That ruling illustrates that international-law norms can be inimical to American civil-liberties such as freedom of speech, making it inappropriate for U.S. courts to enforce such foreign norms.
German prosecutors had concluded that the former legislator’s remarks were protected by Germany’s (limited) free-speech guarantees because, while offensive, they were part of a “discussion” of “problems of economic and social nature,” and did not rise to the level of hate speech. (Germany generally bans hate speech; by contrast in the U.S., the Supreme Court voided a hate-speech ordinance in 1992 on First Amendment grounds. A federal appeals court has also ruled that a professor’s racially-charged anti-immigration diatribes were protected speech in the Rodriguez case.) Law professor Eugene Volokh reprints the speech that, “according to the Committee, must lead to a criminal prosecution in countries that have ratified the International Convention on the Elimination of All Forms of Racial Discrimination.” (The U.S. has ratified that convention, but, as Professor Volokh notes, “I am pleased to say that the U.S. has not recognized the competence of the Committee to enforce the Convention, though most European countries have; the U.S. has also ratified subject to a specific reservation in favor of the freedom of speech.”)
The unrepresentative nature of international “human-rights” norms and officials is further illustrated by the disturbing remarks in response to the Boston massacre by “Richard A. Falk, the U.N. ‘human rights’ official and Princeton professor. . . .Commenting on the Boston bombing, Falk wrote, “Should we not all be meditating on W.H. Auden’s haunting line: ‘Those to whom evil is done/do evil in return’?” “The American global domination project is bound to generate all kinds of resistance in the post-colonial world. In some respects, the United States has been fortunate not to experience worse blowbacks, and these may yet happen, especially if there is no disposition to rethink US relations to others in the world.”
Letting people sue over violations of “customary international law” would be like giving a blank check to lawyers with favored ideologies. International-law “experts” often define international obligations in ways that go far beyond what countries that ratified a treaty ever intended or contemplated, but which are appealing to “progressive” ideologies. Earlier, the UN “special rapporteur on torture,” Argentina’s Juan E. Méndez, sought to define as torture, in violation of international human-rights law, a wide variety of government policies, such as “restrictions on access to abortion” and “laws requiring sex change surgery before legal sex reassignment, laws that permit a parent to lose custody of a child solely because they use drugs, and mandatory HIV testing for ‘sex workers.’”
Letting people sue over violations of “international law” can be bad for civil liberties like free speech, equal protection, and private-property rights. Left-wing lawyers take vague international treaties and interpret them as mandating their ideological wish lists, such as restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” classes, government-sponsored “access to rapid and easy abortion,” and “the application of quotas and numerical goals.” (Governmental racial quotas violate the U.S. Constitution, as do quotas imposed on private enterprises by the government. Government-enforced gender quotas also generally violate the Constitution.).