The Australian Family, October 1999, p. 20
The Fight For Families At The United Nations
The World Congress of Families II
Australian Regional Conference, August 7, 1999
Richard Wilkins is Professor of Law at Brigham Young University in the U.S.A., has argued cases before the U.S. Supreme Court and is the Director of Family Voice NGO.
During the first two weeks of June, 1996, the United Nations convened Habitat II, a remarkable conference in Istanbul, Turkey. It was the culmination of a decade-long series of conferences designed to develop a 'blueprint' for international (and ultimately domestic) legal relations during the coming century.
These conferences have been accurately perceived as significant law-making events. They have followed a predictable and extreme ideological course primarily championed by a powerful lobby that, according to one scholar "has marginalised parents, ignored the family, denigrated cultural and religious values and enshrined reproductive and sexual health".
What made the Habitat Conference remarkable was that it departed from this set course.
Instead of defining marriage and/or family in a manner that explicitly legitimated same-sex marriages and families, the final document produced by the Habitat Conference defined the marital relationship as one between a "husband and wife". Instead of numerous explicit paragraphs mandating worldwide abortion on demand, only one reference to "reproductive health" remained.
The Habitat Agenda formally recognised the "family as the basic unit of society" that "should be strength ened". These developments, viewed from the perspective of current American and European trends are significant.
Habitat's express recognition of the family and "family values" heralds a possible resurgence of traditional morality. This 'Istanbul Miracle' resulted from continuing and energetic involvement of people from many faiths.
The United Nations sets not only international, but domestic law and policy. Until relatively recently the nation-state was the only component of the international legal system that was subject to international law. Local governments and individuals were not considered to be subject to the international legal system.
Instead, that system regulated the relationships between nation-states. Nation-states were sovereign entities and their internal affairs (including the rights and obligations of their citizens) could not be interfered with by other political entities. With the arrival of the United Nations and the many organisations that make up its specialised agencies, an important evolutionary change has occurred.
Perhaps the most significant development has been the expanding number of international conference agreements and the inclusion in the agreements of matters pertaining primarily to the status of the individual. International law increasingly deals with the "rights" of groups and individuals. Under the UN system, international law is now concerned with nearly every important aspect of modern life. UN conference declarations address not only political matters, but legal, social, cultural, economic, technical and administrative matters as well.
The UN now plays an important role in defining "issues", establishing "solutions" and allocating responsibilities with respect to the international "answers". The net result is that formerly local policies may now be governed by decisions made at an international conference.
The UN has come to have a tremendous impact on domestic law. Its influence is the result of many factors, including increased international trade, the burgeoning number of international treaties, the creation of new international organisations, such as the proposed International Criminal Court, and the direct and indirect regulatory actions of UN organs such as the World Bank. But one of the most important and least recognised effects of the UN system on domestic policy flows from the system's rapid creation of enforceable international custom.
Under treaty law, customary international law is binding on the nations of the world even if those nations do not formally consent to be bound by that law. Customary law is, therefore, exceedingly potent.
Precisely because of the extremely broad reach of customary law, it is vital to understand how that law is formed. While the exact mechanisms by which customary international law is formed are subject to some debate, most modern scholars have concluded that customary law is developed in significant part by the mere repetition of legal principles over time.
Professor Charney concludes that "today, major developments in international law are often begun or supported by proposals, reports, resolutions, draft treaties or protocols debated in such forums". Hence, a general rule can be stated: previously non-binding norms become enforceable international law when they have been repeated with sufficient frequency.
A UN conference operates as a joint venture between participating international governments and the worldwide private sector. The official government delegates to a UN conference conduct the negotiating and drafting sessions. At these sessions a legal document is executed (in Istanbul, the 'Habitat Agenda') that sets forth international legal standards and accompanying methods of enforcement.
While these sessions are proceeding, representatives from private-sector UN-accredited Non-Government Organisations (or NGOs) conduct an NGO Forum, at which they present lectures, workshops and other informational/persuasive material related to the conference. The most important functions of the NGOs are lobbying, support and - as the eventual grantees who often dispense UN largesse to participating nations - ultimately enforcement.
NGOs exist to influence the substantive outcome of official UN conference deliberations. They play an increasingly important role in policing non-compliance with substantive UN demands. The net result is a symbiotic relationship between the UN bureaucracy and the NGO community: NGOs inform and support UN functionaries who in turn rely upon the NGOs to ensure the ultimate enforcement of their decrees - a classic example of mutual back-scratching.
This interdependent relationship can confer significant power upon an NGO, particularly if it is large, well-funded and vocal. For the past 20 years the best organised, best funded (often with government subsidies) and most vocal NGOs have been controlled by the Women's Caucus headed by former US Congresswoman, Bella Abzug. Its power is formidable, and because of its efforts, recent UN conferences have adopted a rather extreme social agenda.
The original draft of the Habitat Agenda, for example, provided (as did the Cairo and Beijing conferences) that "in different cultural, political and social systems, various forms of the family exist" and extended to legal protection of same-sex marriages.
Had this language remained in the Habitat Agenda it could have had significant worldwide impact particularly in America. Domestic courts in the US may use conference declarations as evidence of enforceable customary norms. In the area of human rights, in particular, advocates have argued that domestic courts should rely upon non-binding principles articulated in international instruments and conference declarations in construing domestic law.
The Canadian Supreme Court in R. v. Baker enforced certain provision of the Conventions of the Rights of the Child, even though those provisions have never been implemented by the Canadian Parliament. The Canadian Supreme Court reasoned that it could enforce the Convention "indirectly" because the Convention merely articulated principles of customary international law.
Accordingly, UN conference declarations and treaties, even if purportedly non-binding, can have a dramatic impact on local law.
Whether the question involves the environment, world population, social development or the status of women, the answer given by the UN conference declarations seems to be the same - too many people populate the earth and the best solution is to reduce resource consumption and enhance individual liberty by means of dramatic, government-sponsored population reduction programs. Freeing society - and women in particular - from the burdens imposed by children is a constant theme.
There are also growing indications in various UN conference debates that it is (perhaps) time to begin serious consideration of additional population-reduction alternatives such as euthanasia for those whose "lives are not worth living".
As a representative to Habitat II, I was allowed to "try out" before a panel of judges, as to which of the NGOs would be able to make a 10 minute presentation.
However, Bella Abzug's Women's Caucus had the right to control the official presentation time, and objected to any time being given to NGO Family Voice.
After hours of debate I objected:
"I have been a law professor for twelve years, and never have I heard arguments that have such little appeal to either the rule of law or a sense of justice. There are limited speaking slots available, and the procedures to select a broad range of speakers have been in place and approved for some time.
"Now the Women's Caucus appears and claims that, because of its size and power, it is entitled to disregard those rules.
"This is quite like a litigant coming into a courtroom and declaring that, because of her wealth and prestige, she is entitled to her own brand of justice. Law and justice should treat everyone equally and fairly.
"It is time to get on with the established selection process."
The main theme of most of the NGOs was the need for women to have ready access to pregnancy termination and government-sponsored day care. No other views were heard. But a delegate from Algeria objected:
"Mr Chairman, we were to hear from NGOs this morning, but it has been turned into a seminar on radical feminism."
Subsequently, I was allowed to speak but my time was cut from 10 minutes to four minutes.
I warned there was a substantial distance between those drafting and implementing a conference document and those enjoying the benefits or bearing the burdens of that drafting and implementation. Governments could be in danger of doing substantial harm to its citizens.
There was one voice which was not heard in UN forums - the voice of the traditional family:
"There is a fundamental connection between a decent society and the reinforcement of strong stable families. The family, I remind candidates, is the necessary foundation for larger communities because it is the sanctuary where women and men learn cooperation, sacrifice, love and mutual support; it is the training ground where children learn the public virtues of responsibility, work, fair play and social interdependence."
The basic structure of society, I asserted, "is built upon the fundamental values fostered by strong families, which need protection through the drafting of the Habitat Agenda".
Several delegates from developing nations came to express their thanks. They voiced surprise that an American law professor would publicly take the traditional position I had defended.
The Heads and Members of Arab Delegations participating in the UN Conference then issued a statement, first in Arabic, then in English, stating they would not sign an Agenda that did not recognise the value of religious and cultural heritage, that did not recognise the family as the basic unit of society, that did not acknowledge that marriage consisted of a union between men and women, and that failed to clarify that no nation has the obligation to provide abortion services.
The next day the G-77 nations, African, Asian and Pacific Rim states took a similar stand. The United Kingdom's Secretary of State for the Environment urged the conference to reject "the culture of death". The Habitat Agenda called upon governments everywhere to maintain and strengthen the family as the fundamental unit of society.
The most important lesson from Istanbul is that people of all faiths can join together and can have a significant impact in preventing moral erosion. United we can be a voice to the nations.
We can warn that the disintegration of the family will bring upon individuals, communities and nations grave difficulties. Not only can we do these things, we must do them.