International courts and “human rights” bodies issue rulings that purport to have the force of law. But much of their reasoning is based not on written laws found in any law book, or agreed to by any legislature or citizenry. Instead, it is based on vaguely-defined “customary international law,” principles of so-called “natural law” derived from a supposedly “clear consensus” by enlightened people across the globe. But that “consensus” is often illusory, since it can easily be fabricated, manipulated, or distorted by international lawyers.
Lawyers are, on average, further to the left politically than the average citizen. And so-called international lawyers are even more so. (I used to practice international law at Skadden, Arps). Just as the grass always seems greener on the other side of the fence, lawyers often claim that the law is more liberal elsewhere in the world than in their own benighted country, and that such liberal norms — at odds with their own country’s law — constitute customary international law. Thus, it is commonly argued that customary international law bans the death penalty for mass murderers, and requires countries to ban disfavored forms of speech (such as “hate speech,” or criticism of any religion), although in reality, the strongest support for bans on such speech actually comes from undemocratic regimes like Cuba and China.
It is hard to fight these claims even when they are false, because ordinary people (and even most lawyers) don’t know much about foreign law. The lawyers who fashion “customary international law” are thus largely unaccountable. Perhaps as a result, customary international law is generally of poorer quality than domestic law. Scholars have cited this fact in celebrating the Supreme Court’s recent decision in Medellin v. Texas (2008), which refused to make Texas hear yet another challenge to a murderer’s conviction (which had already twice been upheld by different court systems) when ordered to do so by the International Court of Justice (a ruling at odds with the fact that virtually all ICJ member countries permit only one appeal of a conviction, not successive appeals).
Misleading the public about foreign law is common among “human rights” officials. For example, an official in Australia’s new Labour government claims that people accused of race discrimination should have to prove themselves innocent, rather than being proved guilty. To justify this outrage, he and Australia’s “human rights” commission claim that is the practice in America, when in fact it is quite the contrary.
American law puts the burden of proof on the complainant and the government, not the alleged offender, in discrimination cases. The U.S. Supreme Court explicitly so ruled in Texas v. Burdine (1981) and St. Mary’s Honor Center v. Hicks (1993). But Australia’s Race Discrimination Commissioner, Tom Calma, and the Australian Human Rights and Equal Opportunity Commission falsely claim that under American law, “the onus of proof” is on “the person who has been accused of discrimination.” (See “Call to Switch Onus on Racist Offenses,” The Age, News, April 5, 2008).
Joseph H.H. Weiler, a law professor who co-drafted the European Parliament’s Declaration of Human Rights and Freedoms, made American legal thinking seem more liberal than it is, by inviting to Europe to represent it two of America’s most radical law professors: the University of Michigan’s Catharine MacKinnon, who considers most heterosexual sex to be rape; and Harvard Law School’s Duncan Kennedy, who advocated having law school professors periodically exchange their positions with college janitorial staff in order to promote diversity and social equality.
By contrast, when laws across the world are more conservative than a law professor’s own, they are studiously ignored in formulating “human rights” law (like the world-wide aversion of most countries’ legal systems toward civil punitive damages and late-term abortions, which U.S. law often permits).
The very international “human rights” lawyers who insist that “hate speech” should be curbed are often radicals who are blind to certain forms of prejudice. A classic example of this is the disturbing Richard Falk, recently appointed by the U.N. Human Rights Council to investigate Israel. Falk, a liberal Princeton professor emeritus, has likened Israel to the Nazis, praised the Ayatollah Khomeini (the Iranian dictator whose regime ordered the killings and torture of many religious and ethnic minorities in Iran), and promoted 9/11 conspiracy theories that accuse the U.S. government of complicity in the 9/11 attacks. Falk’s wackiness may offend the general public and Israel, which plans to bar him from coming to Israel, but it apparently does not offend lawyers and state judges very much: it did not stop the Washington State Supreme Court from citing his advocacy of affirmative action to uphold a discriminatory, gender-based affirmative-action set-aside in public contracting, in Southwest Wash. Chapter v. Pierce County, 667 P.2d 1092 (1983).