The Effort to Ban "Defamation of Religion" and the Democracy Deficit of International Law:

The ongoing effort to establish an international law norm against "defamation of religion" - discussed in Eugene's excellent post - nicely exemplifies several of the shortcomings of international law discussed in my forthcoming Stanford Law Review article (coauthored with John McGinnis).

In the article, John and I contend that what we call "raw international law" - international law norms that have not been ratified through the domestic political process either by means of a congressional statute or through treaty ratification - suffers from a serious democracy deficit. Raw international law is formulated by international jurists and organizations that are largely free from democratic control; in addition, the content of raw international law is heavily influenced by authoritarian and totalitarian states and their representatives in international institutions such as the International Court of Justice and the United Nations. Obviously, the latter have little incentive to promote international law norms that benefit either their own people or those of democracies, and much incentive to promote interpretations of international law that cement their own grip on power by restricting civil liberties.

The attempt to create a binding international law norm against "defamation of religion" suffers from both of these weaknesses. It is striking that the effort is spearheaded by a coalition of unelected international jurists and bureaucrats (such as UN High Commissioner for Human Rights Louise Arbor) and authoritarian governments.

The key role of the latter is noted in this article by law professor Liaquat Ali Khan, a supporter of the ban. As Ali Khan points out, the recent UN General Assemby Resolution endorsing a ban on "defamation of religion" was passed by a coalition of mostly authoritarian nations over the opposition of most of the world's liberal democracies. It is no surprise that a coalition of international legal elites and domestic tyrants would favor a legal rule that increases their power and provides a license for censorship. These groups have a long history of promoting similar measures, such as the ultimately abortive New World Information Order initiative of the 1980s, which sought to create an international censorship regime.

Even strong defenders of the primacy of international law over domestic law do not claim that a UN General Assembly resolution does not in itself constitute binding law. However, as Ali Khan notes:

General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community’s views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law.

In sum, the General Assembly resolution does not in and of itself establish a binding legal rule, but it is an important step in that direction - at least if one accepts the views of strong advocates of the primacy of international law over domestic law.

I am no starry-eyed defender of domestic democratic processes. They have numerous weaknesses, some of which I have analyzed in detail in my academic work. However, as John and I argue in our article, democratic domestic lawmaking processes - especially if restrained by a strong domestic Constitution limiting government power - generally lead to much better outcomes than the undemocratic international lawmaking processes that result in such norms as the ban on "defamation of religion."

There is no need to be unduly alarmist. In the near future, international law initiatives such as this one are unlikely to seriously endanger our rights. At the same time, international law may pose more of a threat to liberty in some European and other nations where resistance to the domestic application of raw international law may be weaker than in the US.

Moreover, the effort to insinuate raw international law into domestic law has only recently begun, and as Eugene has often pointed out (see links here), it may over time gain momentum through slippery slope processes of various types. It is important to head this process off at an early stage.

The best way to do so, as John McGinnis and I (and also Eugene) contend, is for both courts and legislators to emphasize that international law is not binding on the United States unless it has been incorporated into domestic through standard legislative processes - such as enactment in a congressional statute or treaty ratification by a 2/3 majority of the Senate. International law norms that conflict with the Constitution can only bind us if they have been enacted through a constitutional amendment. Other democracies should pursue a similar approach.

In addition, the US and other liberal democracies should consider denying funds to the UN Human Rights Council (which is a strong supporter of the Defamation of Religion resolution, among other attacks on freedom of speech) and other international bodies that promote new international law norms that undermine freedom of speech and other civil liberties. The democracies of the developed world provide these bodies with the lion's share of their funding, and the power of the purse can be used to curb their depradations, even if it can't end them completely.