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Suppressing Anti-Religious Speech -- an Emerging International Law Norm?

The U.N. Office of the High Commissioner for Human Rights Resolution 2005/3 ("Combating defamation of religions") states, among other things:

The Commission on Human Rights ... [u]rges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence ...

So harsh criticism of Scientology should be outlawed (unless somehow the government is empowered to decide that it's not a "real" religion). So would harsh criticism of Catholicism — which may well urge hostility to Catholic teachings and the Catholic hierarchy — on the grounds that it supposedly oppresses women or homosexuals. So would harsh criticism of militant Islam. Religious ideas and religious institutions, which are often among the most important and influential ideas and institutions, would thus be legally protected from strong condemnation, condemnation that in many instances (though of course people disagree on which instances) is entirely merited.

Perhaps not coincidentally, the UN High Commissioner for Human Rights, Louise Arbour, has recently publicly condemned a Danish newspaper that published a dozen drawings of Mohammed, some of which were pejorative and all of which were seen as blasphemous by many Muslims (since at least some strains of Islam prohibit depictions of Mohammed). Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" If this were just the UN using its own megaphone to express its views, that would be troubling enough. But against the backdrop of the resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility," the call is even worse.

This also reminds me of my posts from 2003 and 2005 on how emerging "international law" principles can erode the Bill of Rights; as Prof. Peter Spiro, one of the leading U.S. international law scholars wrote in one of the leading U.S. law reviews, the President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] ... in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

And the article was both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run." "Constitutional rights 'adjusted' by treaty norms are changed by them. The Constitution is read to conform with the treaty."

What's more, I've heard international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties, by statements in treaties that the U.S. hasn't signed or hasn't ratified, and by actions of international bodies established pursuant to treaties that the U.S. has ratified. What U.N. commissions say and do may thus ultimately affect not just international politics, but the constitutional rights of Danes, Americans, and anyone else who has a broader view of free speech than the U.N. seems to endorse. That's reason, I think, to pay close attention to how international institutions are trying to establish norms that demand suppression of free speech.

Thanks to The Brussels Journal and InstaPundit.com for pointers to the Denmark controversy, which I otherwise would have missed.

Houston Lawyer:
Coming through the UN, an openly anti-Semitic institution, this is quite rich. Shouldn't the intended exclusion from this policy of any attacks on Jews or Christians be explicitly stated? Why would western governments elected by free people criminalize the criticism of radical Islamism, a theocratic idea that is antithetical to the concept of democracy itself?
1.20.2006 1:38pm
Eugene Kontorovich (mail) (www):
Eugene, I'd be surprised if international norms tracked U.S. Constitutional protections. Many of our rights (and particularly our speech, religion and gun rights, but also our Fourth Amendment rights and our bail rights) are unusual, sometimes unique. It would be odd if norms that arise from the interactions of all nations suit the idiosynratic libertarian preferences of the United States.

International law is commonly thought of as being synonymous with good law, presumably because it has an air of impartiality and disinterestedness -- a universal justice. But the efforts of the High Commissioner should remind us that universal justice is just someone's justice on stilts.
(Of course the statement of the High Commissioner do not represent the UN, the General Assembly, or any state actor, and I think is even too squishy to be thought of as "soft law.")

This does not mean all international law will likely cut against American sensibilities, but rather that this will more likely occur when international law seeks to govern internal conduct by individuals, rather than the interactions of states.
1.20.2006 1:51pm
Joshua (mail):
Legislation along these lines has also been introduced in the British Parliament. (It may even have been passed by now.)

Regarding the insinuation of international law into domestic American legal affairs, the fact that this practice has gained any acceptance at all suggests a growing sense that academics such as Haim Harari and James O'Donnell) may be onto something really, really big. If their outlook (in a nutshell, that the very concept of the nation-state is about to go the way of the dinosaur) is correct, then international law in U.S. courts may be just the beginning.
1.20.2006 2:09pm
Michelle Dulak Thomson (mail):
Eugene,

[. . .] a Danish newspaper that published a dozen drawings of Mohammed, some of which were pejorative and all of which were seen as blasphemous by many Muslims (since at least some strains of Islam prohibit depictions of Mohammed).

I think at least some strains of Islam prohibit, not merely depictions of Mohammed, but depictions of any animal form, human or otherwise. That would take some enforcing in a Western nation.
1.20.2006 2:23pm
JohnAnnArbor:
I think at least some strains of Islam prohibit, not merely depictions of Mohammed, but depictions of any animal form, human or otherwise.

That was the Taliban's excuse for annihilating those giant stone Buddhas.
1.20.2006 3:04pm
Taimyoboi:
How come you only made examples of Scientology, Catholicism and militant Islam?

I sense a deliberate attempt to incite discrimination, hostility and violence....
1.20.2006 6:22pm
Conrad (mail):
There was an article published fairly recently in the Harvard Law review about whether the provisions of a treaty can supersede povisions of the US Constitution. Sadly, I've misplaced my copy and can't seem to locate it on line.

Can any reader point me to it, as I'd like to reprint it for my files.

Thanks.
1.20.2006 11:16pm
Alan K. Henderson (mail) (www):
If there should arise an international treaty banning the fisking of religions, can citizens of nations that sign the treaty avoid prosecution by fisking religions on blogs hosted in nations that do not recognize the treaty?
1.23.2006 5:25am