The UN vs the U.S. Supreme Court.

I guess at this point and time it is beginning to seem inevitable the U.S. Supreme Court will be taken over by far-rightwing conservatives. Bye-bye Roe v. Wade. And bye-bye alot of other things we have taken for granted for the past 40 years or so too, I guess.

But this leaves an interesting legal question. I remember hearing a while ago that the Australian province of Tasmania had a law criminalizing homosexual conduct. But instead of taking the matter to the Australian supreme court, someone instead took the matter to the UN. And they won. I know the UN’s Universal Declaration of Human Rights contains many rights not explicitly spelled out in the U.S. Bill of Rights and Constitution. Could the UN and the Universal Declaration of Human Rights take up the slack for people whose rights have been violated in a way not covered by a strict constructionalist view of our constitution (for the right to privacy, for example)?

It doesn’t seem to be working this way now. So I guess it would?/might? require a new treaty with the UN or something like that. But my question is, is it at legally least feasible?


That Bill of Rights link didn’t quite work. So here’s another one:

Even were it to be legally feasible through treaty you must remember that nation-states adher to treaties only as long as convenient.

I can’t see the United State ever ceding decision-making sovreignty to an outside power like the United Nations. Even if it did wouldn’t that require the UN to subscribe to the US Constitution? I can just see THAT fly.

I don’t remember such a thing happening, and it seems unlikely the the UN would be able interfere in the domestic affairs of the State of Tasmania, rather than the High Court of Australia.

It may have been that the federal government (i.e., the Commonwealth of Australia) ratified an international treaty on human rights, and that the High Court said the Commonwealth’s use of its power to make treaties allowed it to override a state law. However, that’s not going to the UN – that’s still working within the Australian legal system.

Since then, I think the Tasmanian State Parliament has repealed laws against homosexuality, in any case, so that the matter would now be moot (unless Tasmania or some other state went crazy, and tried to bring back anti-gay laws).

There’s no UN court that would be competent for such a thing. The world court is only competent to settle dispute between states (not between a state and an individual) and the International Criminal Court only for war crimes and crimes against humanity.

The US has, for some time now, maintained that the International Court of Justice’s decisions are not binding on the US, anyway. Ahh, the benefits of being a superpower.

Do you really have to be a superpower to ignore what the ICJ wants?


It’s like the old joke about the difference between “weird” and “eccentric” – superpowers don’t “defy international will”, they’re simply “exercising their sovereignty.”

You’re both right. What happened is that in 1991 gay activists went to the UN Human Rights Committee (not a court) to protest anti-gay laws in Tasmania. In 1994 this body declared that these laws were a violation of civil rights. Following this the australian national government passed a law trying to override the state law. Gay activists sought to get the Australian High Court to test whether the national law in fact did overturn the state law. In 1997 the High Court agreed to hear the case. The case never happened because the conservative government in Tasmania could see the way the winds were blowing (nothing is as powerful as an idea for which its time has come as its said). So a law was passed in the Tasmanian parliament decriminalising homosexuality.

I think this is related to what P.J. O’Rourke said about an election in El Salvador: The guys with the real votes are the ones with the guns.

The real “rulers” of any country are the police and military, in a sense. If they turn against the political rulers, who’s to stop them? Will Congressmen be throwing burning copies of the federal budget to stop the advancing 101st Airborne? Good luck.

The point being that countries (and people in general) pay attention pretty much only to those who MAKE them pay attention. This “making” often involves the use of the pointy end of a gun. The UN essentially has few/no pointy ends.

Only the signatories are bound, and the list of non-signatories doesn’t include only super-powers. However, the USA super power status allowed it to try to hazmper the efforts to create the court, and also to currently try to sign agreeements with various countries stating that said countries won’t handle indicted american citizens to the court (something a tinpot dictatorship can’t do, obviously).

I would add that the US not being a signatory doesn’t mean that its citizens aren’t subject to its juridiction, if the crimes have been commited in a signatory country or the victims were citizens of a signatory country. I mention this because the idea that american citizens are immune from prosecution on the basis that the USA didn’t sign the treaty seems to be quite widespread.

I think it’s important to mention it. If people’s rights are trampled on, it’s generally because the powers that be know that they receive enough support to do so. It might be popular support (for instance in time of war, or in case a serious threat exists or is said to exist, but possibly also simply because a lot of people are calling for, a “strong” governement for some reason) or it might be military support, as you mention.

In both cases, sheets of paper (be it a constitution or an international treaty) won’t change a thing if not backed by force (once again military force or massive popular uprising). Democracies and the rights their citizens are benefitting from exist as such only due to an overwhelming agreement. Not because some constitution is displayed in a museum with prestigious signatures on it. If your right are being trampled on, it’s likely because the times are ripe for such a thing, and it’s likely too late to mention whatever document, treaty or court.