"New rights" in public international family law? What international law actually says.

• Author: Adolphe, Jane

INTRODUCTION

Recent debates within the United Nations system have involved issues relating to the controversial topic of "new human rights," an expression which carries a hidden meaning generally attempting to exclude discussions about the ethical, moral, and natural law considerations concerning abortion, human sexuality, marriage, and the family. (1) The terms "sexual orientation" and "gender identity," and their implicit "new human rights" (e.g., same-sex marriage) have been the subject matter of much debate. (2) The two concepts sexual orientation" and "gender identity" are, by their very nature, interior and subjective self-determinations, subject to revision like any other desire or inclination. Most countries recognize the difference between feelings, desires, or inclinations, on the one hand, and behaviours or actions, on the other hand. In particular, the Holy See, a sovereign subject of international law, (3) and Permanent Observer to the United Nations contends that: "[A] state should never punish a person, or deprive a person of the enjoyment of any human right, based just on the person's feelings and thoughts, including sexual thoughts and feelings. But states can, and must, regulate behaviours, including various sexual behaviours." (4) The Holy See has a sacred and legal duty to protect children, (5) and given the actions, including crimes of sexual abuse of children, by some clergy, religious, and laity, the Holy See among other things, reminds the world that "there is a consensus between societies that certain kinds of sexual behaviours must be forbidden by law. Paedophilia and incest are two examples." (6)

Nonetheless, in the face of growing concerns about the sexual exploitation (7) and sexualisation of children, (8) some lobbying groups are vigorously working to sanitize paedophilia. (9) These initiatives refer to the disorder of paedophilia as "adult-child" or "adult-minor" sex. (10) They challenge the assumption that sex between adults and children is always damaging to the child, and/or defend man-boy sexual contacts and adult-juvenile sex in general. (11) They find support from thousands of websites presently promoting the acceptance and normalization of child sexual abuse, for example, from political parties founded on the platform of legalizing child-adult sexual activity, (12) and academic gatherings convened to challenge the current diagnosis of paedophilia as a mental disorder. (13) Consequently, one might well query whether, in the near future, paedophilia might be regarded as a "sexual orientation." (14)

In an effort to make their case internationally, those who promote "new human rights" rely upon non-binding documents (e.g., General Comments of United Nations Treaty Bodies, Reports of United Nations Special Rapporteurs, decisions of regional and national courts, and even principles drafted by individuals). (15) The reason for this approach is obvious. There are no binding treaties, which acknowledge such rights.

The purpose of this Article is to review the written texts of important international human rights documents in the area of public international family law, including the rights of the family, parents, and children. This Article fleshes out the legal-anthropological "golden thread" that runs through international human rights law within the system of the United Nations. It provides a "good faith" interpretation in light of the "ordinary meaning" of the words in the written text taking into consideration a certain common-sense understanding of humanity and society. (16) More descriptive than analytical in nature, this Article will consider what is contained in the International Bill of Human Rights and the Convention on the Rights of the Child ("CRC'). The Article contends that the 1948 Universal Declaration of Human Rights ("UDHR"), (17) the foundational text for the modern human rights movement, and the two 1966 Covenants--the International Covenant on Civil and Political Rights ("ICCPR") (18) and the International Covenant on Economic, Social and Cultural Rights ("ICESCR") (19) (together, the "International Bill of Human Rights")--remain the linchpin for understanding documents such as the 1989 Convention on the Rights of the Child. (20) This Article argues that these documents, when considered as an integral whole, reveal an interconnectedness between the nature and meaning of the human person, his or her human dignity, as well as the rights of the family, parents, and children. It is beyond the scope of this Article to consider the drafting history of key documents and their working papers, such as the UDHR, since such an appeal to supplementary sources of interpretation is unnecessary for the purposes of this Article and has been studied elsewhere. (21)

The Article is divided into six parts. Part I discusses the human person and his or her dignity. Part II studies the special protection given the family, based on marriage. Part III explores the rights and duties of parents. Part IV considers the rights and duties of the child as they relate to the family and parents. Part V responds to certain objections to the interpretation provided herein; given the brevity of this Article, it does not seek to raise and address every possible counter-argument. Part VI discusses implications for lawmaking.

1. THE HUMAN PERSON AND HIS OR HER DIGNITY

   The UDHR acknowledges the human person, male and female, in noting the "equal rights of men and women." (22) The UDHR prohibits discrimination on the grounds of sex, (23) as does the ICCPR, (24) which also recognizes "the equal right of men and women" to the enjoyment of all civil and political rights. (25) The ICESCR continues along these lines prohibiting discrimination on the basis of sex, (26) as does the CRC. (27)

   The UDHR recognizes "the inherent dignity and ... equal and inalienable rights of all members of the human family." (28) This preamble paragraph is echoed in the ICCPR (29) and the ICESCR, (30) and a different preamble paragraph clearly asserts that "rights derive from the inherent dignity of the human person." (31) The UDHR also recognizes that rights are co-relative with duties; a principle that is strongly reaffirmed in the ICCPR and ICESCR (e.g., the individual has duties "to other individuals and to the community"). (32) In brief, the three documents do not grant rights but merely acknowledge rights; recognize that rights are co-relative with duties; and ground rights and duties in inherent human dignity.

   An important issue raised, concerns the meaning of the phrase "rights derive from the inherent dignity of the human person," found in the two Covenants. (33) The answer to this query is partly found in article 1 of the UDHR: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." (34) One might argue that each human being, by the mere fact of being human, is a person, that is, by nacre "free ... endowed with reason and conscience" and relational. (35) Following this line of reasoning, each human being or human person, in relation with self and others, is personally responsible to seek the truth, and respond to the interior call to do good. Arguably, the term inherent dignity refers to the "unique excellence of personhood," the innate value of the person as "'someone' and not merely 'something' ... an absoluteness not found in other beings."36 This "gives rise to specific moral requirements," (37) that is, certain things ought not to be done to any human person (e.g., slavery, torture) and certain other things ought to be done for every human person (e.g., recognition as a person before the law). (38) This last point, in turn, implies that a human person also acquires dignity when he or she acts in accordance with right reason; that is, in doing those things he or she ought to do and refraining from other things he or she ought not to do (e.g., Tom has inherent dignity as a human person, which must be respected, but not his act of rape, which is wrong and criminal).

   Before turning to the next section of this paper, a word should be said about the term "born" in article 1 of the UDHR: "All human beings are born free and equal in dignity, and rights." (39) Since human persons are "not [physically] born into equal circumstances," the term "born" arguably refers to a "moral birth"--a "deeper moral quality," which no human person, political body, or social body could possibly grant. (40) This understanding is consistent with the overall text, which includes references to "inherent" and "inalienable" in the preamble. (41)

2. PROTECTION OF THE FAMILY, BASED ON MARRIAGE

   Consideration of the human being as a person with inherent dignity called to acquire dignity through right action is deeply united with the value and dignity of the family. Article 16 of the UDHR recognizes that the family is "the natural and fundamental group unit of society and is entitled to protection by society and the State." (42) This statement implies that the "natural" family predates the state and is a subject of rights and duties before the state. It is the natural environment where children (new citizens) come to life, and, in the first instance, are taught to give to the other what is his or her due in justice (to respect authentic rights), but go beyond this, in charity, to give to the other what is theirs (to" act towards one another in a spirit of brotherhood"). (43) The pertinent principles are unraveled in article 16 of the UDHR in logical sequence, and similar wording is found in the ICCPR (44) and the ICESCR: (45)

   (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

   (2) Marriage shall be entered into only with the free and full consent...