Saturday, December 23, 2006

International Human Rights and Home schooling.

This is a response to this worldnetdaily.com article which refers to this article by Michael Farris from Home Schooling Legal Defense Association.

While International Human Rights law can and will effect national laws, the warnings expressed in these articles are, in my opinion, exagerated. Neither does the European Court of Human Rights (ECtHR) decision in Konrad v. Germany(1) create any presidence in International Human Rights law for restricting home schooling, for the following reasons:

First, its a decision not a judgment. The ECtHR simply dismissed the case as "manifestly ill-founded." The ECtHR held that the European Convention of Human Rights does not contain a provision giving parents exclusive rights over the education of children.

Secondly, the basis for ECtHR decision was the "margin of appreciation" that the ECtHR gives to contracting states. The ECtHR is very hesitant to overrule national courts and laws enacted by democratically elected legislatures. European nations can therefore, with reason, regulate the educational requirements of children.

This decision poses no threat to home schooling rights in other European Countries, particularly not to countries such as Denmark, Finland and Ireland which have provisions for home education in their constitution.

Konrad v. Germany also makes it clear that Germany's "Basic Law" guarantees "the right to establish private schools." The state does therefore not have a monopoly on education, only the right to regulate it.

Finally, even if the US Congress were to ratify the UN Charter on the Rights of the Child, it could only be enforced by US courts. Although US courts could refer to Konrad v. Germany in its decisions, the case contains no authority for any proposition of law other than national law has priority over international law. US court are, anyway, extremely unwilling to find inspiration from international jurisprudence.(2) As Supreme Court Justice Scalia said in the 2002 case of Atkins v Virginia (3) said: "Equally irrelevant [to decisions of the US Supreme Court] are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."

(1) Konrad and others v. Germany, 11 Sept. 2005, application no. 35504/03, see www.echr.coe.int/echr.
(2) for more see Ignatieff, Michael. American Exceptionalism and Human Rights (Princeton NJ, Princeton University Press, 2006).
(3) Atkins v Virginia, 536 U.S. 304, 348 (2002)

7 Comments:

At 24 December, 2006 14:04, Anonymous Anonymous said...

Good morning, Charles here on the flip side of the blogosphere.....

Obviously, the issue in Germany is more complex than what I understand. I have read some other things concerning this, and here are the links:
(http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=53484)
(http://www.homeschoolblogger.com/HSBCompanyBlog/256239/Updates+from+Germany--War+on+homeschooling.html)

My concern that this could eventually filter here is very relevant, as I think that is indeed very much a possibility in the future. That is why my main response is to your last paragraph where you quote Justice Antonin Scalia. Unfortunately, I think that he, as a strict constitutionalist is becoming a minority in the Supreme Court and in other courts in America. International law, especially when espoused by the U.N., can be dangerous. An example would be the recent Council on Human Rights which had Sudan as a sitting member. Sudan? As if they are champions and moral authorities on Human Rights.

Anyhow, back to the Supreme Court. I agree with Scalia, but he is becoming a minority. Check out these links. Since they have already done the work and I am being lazy, ;-), I won't repeat anything. The articles are very interesting:

http://www.findarticles.com/p/articles/mi_m1282/is_23_55/ai_n13606656
http://en.wikipedia.org/wiki/Ruth_Bader_Ginsburg
(note comments about half way down)
http://www.usatoday.com/news/washington/2003-07-07-foreign-usat_x.htm
http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument

These are a few examples of how decisions are being made with International Law. Now, a quick caviot, my citing of these cases represents none of my opinions or preferences of cases and their outcomes. It was just to show a few examples of certain members of the Supreme Court using/citing international law.

So to wrap up these ramblings (I have not had breakfast yet and have just started my coffee!) Globalists here in America are more and more often citing laws from other countries in an attempt to execute similar control, and the political idealogues who espouse this, are of the same politcal crowd that want to eliminate homeschooling here in America.

I think I am done for now. Apologies for any disconnected logic. I was up late reading!

God bless!

 
At 24 December, 2006 14:29, Anonymous Jan said...

I wanted to wish you and the family God's grace and closeness over Christmas...not that we wouldn't want this all the time...but special seasons give us special longings. I hope all yours are found in Christ. Say hello to the folks for me.

 
At 24 December, 2006 23:06, Blogger Torsten Pedersen said...

Jan, Thank you and all the best to you too. I really hope we can meet in person sometime soon...

Charles, thanks for your comments and links (which I'm really interested in). I will get back to it after Christmas.

My legal dissertation, which I am currently writing, is a comparitative study of the Eurpean Court of Human Rights approach to the right of privacy in cases involving homosexuals in the military, to that of the US Federal Appeals courts and US Supreme Court. An important part of the dissertation is how international human rights afffect US jurisprudance. I'm not finished writing that chapter of my paper, but I will try to answer you as to my opinion on this matter.

I hope you and Kiersten have a really good Christmas.

 
At 24 December, 2006 23:25, Anonymous Anonymous said...

Wow - your dissertation sounds challenging! Um, so I guess I am a bit out of my league - actually way out of my league! ;-)

Thanks for the wishes. We wish you and Becky a very Happy Christmas and God's blessings as well.

~Charles

 
At 25 December, 2006 02:13, Blogger Torsten Pedersen said...

Charles, you are not out of your league when discussing this topic with me.

It sounds very fancy, but my 'dissertation' is simply an extended paper written in the final year of a qualifying law degree in the UK.

The reality is that I've chosen a topic (ie. US law) which I really don't know very much about and I've had to read up on a lot of stuff..

 
At 26 December, 2006 06:53, Blogger Perez said...

If anyone thinks the U.N. will do anything...Well they are mistaken...The U.N. has done nothing with Iran and they want to destory Israel and the United States....The ECtHR sounds just as ridiculuos as the ACLU...Well have a great rst of your Christmas...My God be with you-perez

 
At 27 December, 2006 02:51, Blogger Torsten Pedersen said...

Perez, thanks for the Christmas greeting.

The fear is, as I see it, not that the UN will enact anything on the US. Rather that the US, by ratifying the UN Charter, will let foreign legal standards create law in the US through US judges citing foreign case law in their decisions.

The ECtHR can be an important source of human rights interpretation, as acknowledged in the article from the Home Schooling Legal Defense Association, if US judges look more and more to international law for inspiration and authority. The ECtHR is already today a significant source for interpretation of human rights law, even in countries outside its jurisdiction.

Whether all this is positive or negative is the important question which Charles has raised.

 

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