How the UN System Impacts Family Policy
by Professor Richard G. Wilkins
Director, The World Family Policy Center, Brigham Young University

The citizens of the world must be made aware-and quickly-of an important new reality: the United Nations not only sets international, but domestic, law and policy.

The UN System has embarked upon a detailed (and on-going) series of conferences dealing with nearly every social issue of importance to modern society. These conferences have issued declarations on the rights of children, women, men, social development, the environment, and the process of human settlement. These conferences, “[m]ore than any previous events of their kind, have fostered the mobilization and participation of civil society and the private sector in the affairs of the international community.”⁽¹⁾ This “mobilization” of “civil society” is an important new development.

Until relatively recently, the nation/state was the only component of the international legal system that was subject to international law.⁽²⁾ Local governments and individuals, although components of the nation/state, were not considered to be subject to the international legal system. Instead, that system regulated the relationships between nation/states, much like the nation/states regulated the relationships between individuals.⁽³⁾ Nation/states, in short, were sovereign entities and the internal affairs of those nation/states (including the rights and obligations of their citizens) could not be interfered with by other political entities.⁽⁴⁾ With the arrival of the United Nations and the many organizations that make up its specialized agencies, however, important evolutionary change has occurred.

Perhaps the most significant development has been the expanding number of international conference agreements and the inclusion in those agreements of matters pertaining primarily to the status of the individual. No longer is the relationship between states the primary (or only) consideration of international law; rather, international law increasingly deals with the “rights” of groups and individuals. In fact, 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.”⁽⁵⁾ Accordingly, 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.

UN’s Impact on Domestic Policy
Indeed, during the past decade the UN has come to have a tremendous impact on domestic policy. The growing influence of international law on national law is the result of many factors, including increased international trade, the burgeoning number of international treaties, the creation of new international organizations and the direct and indirect regulatory actions of UN organs such as the World Bank. But one of most important (and least recognized) effect of the United Nations System on domestic policy flows from the System’s rapid creation of enforceable international custom.

Unlike 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, in short, is exceedingly potent. As a leading commentator on international law has noted, once a customary norm has been recognized “the intention manifested by a state in regard to a given [treaty] is henceforth of little account: whether [a state] signs it or not, becomes a party to it or not, enters reservations to such and such a clause or not, [the state] will in any case be bound by any provisions of the [treaty] that are recognized to possess the character of rules of customary or general international law.”⁽⁶⁾

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 (at least in significant part) by the mere repetition of legal principles over time. As a leading international scholar stated, “[c]ollective acts by states, repeated by and acquiesced in by sufficient numbers with sufficient frequency, eventually attain the status of law.”⁽⁷⁾

The former legal counsel to the United Nations, Erik Suy, has been even more blunt. Although acknowledging that UN proclamations purportedly do not “create law,” Mr. Suy nevertheless concludes that customary international law “may arise . . . through the mere repetition of principles . . . to which states give their approval.”⁽⁸⁾ Mr. Suy is not alone in that opinion. Scholars have recognized (and emphasized) that “multilateral fora often play a central role in creating and shaping contemporary international law.”⁽⁹⁾ Indeed, Professor Charney notes that “[t]hese fora include the United Nations General Assembly, regional organizations, and standing and ad hoc multilateral diplomatic conferences, as well as international organizations devoted to specialized subjects.”⁽¹⁰⁾ Professor Charney concludes that, “[t]oday, major developments in international law are often begun or supported by proposals, reports, resolutions, draft treaties or protocols debated in such fora..”⁽¹¹⁾

The broad, binding effect of customary international law, coupled with the reality that such law can be created by the simple repetition of language at various UN meetings, raises a vital question: “At what point does a ‘nonbinding agreement’ turn into an international agreement, a promise into a unilateral act, fact into custom?”⁽¹²⁾ While no precise answer is possible, a general rule can be stated: previously non-binding norms become enforceable international law when (in the capacious words of one scholar) they have been repeated “with sufficient frequency.”⁽¹³⁾

Many of the norms that are now being repeated with regularity at UN conferences are exceptionally hostile to home, family and religion. This process could be used to create an international legal system that would seriously intrude upon traditional conceptions of family, marriage, parental rights – and even religious freedom. Indeed, my attendance at UN conferences during the past four years has persuaded me that there is a concerted effort to “discover” and “recognize” new “rights” (such as abortion, sexual pleasure, homosexual marriage and autonomy rights for children) in long-accepted treaties and conference declarations. At the same time, there is a concerted effort to diminish long recognized, explicit rights, such as the right to free religious practice, the right to freedom of conscience, and the prior right of parents to direct the education and upbringing of their children.

These dangers to family, home, religion and faith are compounded by the recent creation of the International Criminal Court. That Court, while ostensibly designed to enforce only the most “serious crimes” facing the international community, could well be used to enforce a number of social norms (including those relating to abortion, homosexuality, children’s rights, and marriage) articulated within the UN conference system.

As a result, it is becoming increasingly important to pay close attention to the United Nation’s articulation of new social norms (which could become binding customary law or, even worse, “crimes” prosecuted by the new International Criminal Court). It is absolutely imperative that the incoming Bush-Cheney Administration appoint personnel in the Department of State and in the United States Mission to the United Nations who have the insight and expertise to guide the United States – and the world – out of these perilous waters.

1. Nafis Sadik, “Reflections on the International Conference on Population and Development and the Efficacy of UN Conferences,” 6 Colo. J. Intl L. & Pol., p. 249, 252-53 (1995).

2. Oscar Schachter, “The UN Legal Order: An Overview” in I United Nations Legal Order at I I and 24 (Oscar Schachter and Christopher C. Joyner, eds. 1995); Oleg 1. Tiunov, “Concepts and Features on International Law: Its Relationship to Norms of the National Law of the States,” 38 St. Louis U. L.J., p. 915, 916-19 (1994).

3. Tiunov, “Concepts and Features,” 38 St. Louis U. L.J., p. 915, 916 (1994).

4. Ibid., at 916-19; Richard B. Bilder, “An Overview of International Human Rights Law,” in Guide to International Human Rights Practice 3, at 4 (Hurst Hannum, ed. 1992, 2nd ed.).

5. Martin A. Rogoff & Barbara E. Gauditz, “The Provisional Application of International Agreements,” 39 Me L. Rev., p. 29, 29-30 (1987).

6. Prosper Weil, Towards a Relative Normativity in International Law, reprinted in Anthony D’Amato, International Law Anthology (Anderson Publishing) at 152.

7. Higgins, The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System, quoted in Frederic L. Kirgis, Jr., International Organizations in Their Legal Setting (second Ed. 1993) at 341.

8. Erik Suy, Innovations in International Law-Making Processes, reprinted in Gerhard von Glahn, Law Among Nations (6^th Revised Edition) at 16.

9. Jonathon I. Charney, International Lawmaking in the Context of the Law of the Sea and the Global Environment, reprinted in Michael K Young and Yuji Iwasawa, Trilateral Perspectives on International Legal Issues: Relevance of Domestic Law and Policy (First Ed. 1996) at 19.

10. Ibid.

11. Ibid.

12. Prosper Weil, Towards a Relative Normativity in International Law, reprinted in Anthony D’Amato, International Law Anthology (Anderson Publishing) at 148.

13. Higgins, The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System, quoted in Frederic L. Kirgis, Jr., International Organizations in Their Legal Setting (second Ed. 1993) at 341.