As I said, this deserves a thread of its own. But since I’m certain sparculees won’t chide me for it, I will continue the discussion here. After all, it does follow the fundamental issue at hand: deregulation of immigration.
This is incorrect. You may not choose to call it a constitution because you’re limiting your definition to apply to the classical structuring of nation states. Beyond the UDHR, The UN has a Charter as well as a International Covenant on Civil and Political Rights and an International Covenant on Economic, Social and Cultural Rights. Together, these texts set forth the principals of the UN and dictate how the organization and its member states should conduct affairs. What would you call this if not a form of international constitution? One of Webster’s definitions for “constitution” reads “a written instrument embodying the rules of a political or social organization”. What do you want me to call it: international principals and articles of organization? Rather lengthy, so please accept my broader application of the term “constitution”.
I don’t know quite what to make of this statement even in the light of your narrow definition of constitution. Let me note, that the international domain is structured just like the national domain. There’s a executive, legislative and judicial layer. These layers all operate on principals and dictums set forth by aforementioned documents (Charter and Covenants). Even your statement indicates this: “international law” -> “implementation of such law”. The UN consists of a General Assembly (legislative), a Security Council (executive) and an International Court of Justice (judicial), plus a number of Councils (again executive). Without having to go into the relationship between the domestic an international arena, one could say that something “raises constitutional issues”. Please explain your statement more thoroughly.
Now, as for the U.S Supreme Court, it was merely mentioned to indicate that interpretation of ANY constitutional statement (for the lack of a better word) is open to interpretation and needs an organ to do so. I chose the US Supreme Court hoping you would be most familiar with its function. You are correct in that there’s no effective (note effective) International Court of Justice that will say a nation’s constitution is in fact unconstitutional (that is, contradicts the principals on which the UN was founded). Nonetheless, the UN sets forth a framework by which the member states should act, thereby creating the possibility of saying “you’re acting in contradiction to the UN Covenants and Charter”. Or, to put it differently, “you are acting unconstitutionally”.
Again, let’s address the UDHR. Even if it isn’t binding in the sense that it isn’t truly part of the UN constitution (the Covenants takes its place), it’s about as important to the principals of the UN as the principals set forth in the Declaration of Independence are the framing of the U.S. Constitution. The UDHR explicitly states that within the members states, a person should be able to call on moral obligations promulgated by articles of the UDHR.
True. The real power exercised by the UN over its member states is meek. Nearly as meek as its predecessor the League of Nations. Obviously this is because member states are reluctant to waive any sovereignty and there’s no political, military or legal structures to enforce more powerful members to really abide by its principals. Yet resolutions are passed year in and year out and every one at least surreptisiously agrees that the UN should serve as a supra-national organization regulating international affairs and, UNIVERSAL human rights. To be effective, some sovereignty needs to be waived. The UE is a good model for what is required by states to cooperate more efficiently and still retain a level of independence. The U.S. is yet another example. We all seem to agree on this. Now you raise the question as to what legally binding obligation the member states have to waive any sovereignty? Little. And the only threat for not acting in accordance with the UN constitution is exclusion from the UN itself. This is very seldomly implemented for fear that the organization will suffer the same fate as its old vanished ancestor.
So what about Article 13? Does it or doesn’t it place restrictions on regulating immigration? sparculees argues that certainly the intentions of the founding member states when forming the UN wasn’t to allow unrestricted international freedom of movement. Agreed. I doubt the Soviet Union was a hip proponent of that. First of all, the UDHR wasn’t put in place in San Francisco when the UN was formed. To interpret intentions of the UDHR, we need to look elsewhere. Yet, as a side note, I would like to remark that it is contentious whether the Founding Fathers of the U.S. personally intended women to have a vote. Nonetheless, it would seem backwards today to claim they don’t. Hence Amendment 19. When we look elsewhere to determine intent of the UDHR, we are primarily concerned with the DIRECTION and IMPLICATIONS of the thought processes initiated by those who gave birth to the UDHR and what they mean in a current social and economic context.
The group that helped draft the UDHR included people like Eleanor Roosevelt and the author H G Wells. This is where we need to look when determining intent. And, as for the reps of the Soviet Union? They abstained from voting for or against the UDHR, as did most of the east block delegates. But before looking at the intentions of the illustrious drafters, let’s first look at what the UN Covenant on Civil and Political Rights says (which is the actual basis of international law). According to Article 12 of the Covenant, you and sparcs are indeed correct:
Paragraph 1 and 2 of Article 12 is derived nearly directly from Article 13 of the UDHR. But suddenly it reads “lawful within that State” and “within that territory”. My claim is that this is a transmogrification of Article 13 of the UDHR based on national interests, not universal human rights. This Covenant needs as much amending as the U.S Constitution has gone through over the last 200 years. Even worse, IMHO, it contradicts the implications set forth by Article 13 of the UDHR. The Preamble of the Covenant reads “in accordance with the Universal Declaration of Human Rights”. I say it is indeed not in accordance! Paragraph 3 of Article 12 in the Covenant, however, makes sense and is (IMHO) a reasonable addendum. But paragraph 1 and 2 of Article 12 should have remained identical to Article 13 of the UDHR. Invoking Paragraph 3 , Article 12 of the Covenant, any member state could still argue for certain restrictions on immigration.
So, even accepting my controversial interpretation of Article 13, whether the member states are legally boundto have open borders isn’t the issue. The issue at hand is to balance a Universal Right (freedom of movement) against the common good (as expressed in Paragraph 2, Article 12 of the Covenant). Essentially, Article 13 states what we should aspire to: as much freedom of movement as possible under current socioeconomic conditions. All member states are morally bound to strive towards as open borders as possible. This post would become tediously lengthy if we began analyzing the intent of each person responsible for drafting the UDHR. Suffice to note that they were ideally driven. Those that went on to draft the Covenant were practically driven.
This is where we go full circle. The question of this thread, IMO, could be rephrased as: How far can we practically go to fulfill our obligations as expressed under Article 13 of the UDHR without threatening international stability? I would say, a lot further than currently…
