Posted by David Kopel:
Question on family rights and international law:
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242688059
A nation has ratified the [1]International Covenant on Civil and
Political Rights. Several provisions of the Covenant protect family
rights:
Article 17. "1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor
to unlawful attacks on his honour and reputation. 2. Everyone has
the right to the protection of the law against such interference or
attacks."
Article 23. "1. The family is the natural and fundamental group
unit of society and is entitled to protection by society and the
State. 2. The right of men and women of marriageable age to marry
and to found a family shall be recognized."
Article 24. "1. Every child shall have, without any discrimination
as to race, colour, sex, language, religion, national or social
origin, property or birth, the right to such measures of protection
as are required by his status as a minor, on the part of his
family, society and the State."
For the purpose of limiting population growth, a nation imposes a
building ban in a paraticular area. As a result, newly-married couples
often cannot find a home to live in, and so have to move elsewhere.
Also, growing families are not allowed to remodel their houses in
order to make the house larger for the additional children.
Do the nation's policies violate the International Covenant on Civil
and Political Rights? What if the nation forbids people in the area to
marry, but allows them to marry if they move to a different area? What
if the nation forbids or rations births which are legally allowed in
the area, but allows unlimited births elsewhere? If there is a
violation of the ICCPR, then is it a violation of the ICCPR for other
countries to encourage and/or pressure the nation to continue its
current course of conduct. For purposes of this question, presume that
all relevant nations have ratified the ICCPR, and ignore the question
of whether the ratification makes the Covenant self-executing.
The particular question arises in regard to Judea and Samaria, where
Israel, under pressure from the U.S. government, has drastically
restricted construction in many communities, so that there is not
enough housing to accomodate "natural growth" in population (meaning
growth caused by generation-to-generation population increase, rather
than growth caused by immigration). For details, see [2]Haaretz
(building restrictions), the [3]Jewish Telegraph Agency (Peres tells
Biden that Israel can't tell settlers not to get married and have
children),and [4]Ynet (which says that some new building is taking
place).
In the comments, please keep the focus on the legal issues, rather
than pro/con debates over Israelis living in Judea and Samaria. The
only exception to this instruction is if your answer itself depends on
some related legal issue. For example, "Normally, the restrictions
would violate the ICCPR, but the restrictions are permissible because
Israelis living in Judea and Samaria is itself of a violation of X
international law, and for Y reason, Israel's legal obligation to obey
X trumps Israel's obligation to obey the ICCPR."
References
1. http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
2. http://www.haaretz.com/hasen/spages/1059747.html
3.
http://jta.org/news/article/2009/05/05/1004948/peres-to-biden-cant-stop-natural-growth
4. http://www.ynetnews.com/articles/0,7340,L-3715111,00.html
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