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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.

Brian G (mail) (www):
Which means, as we all know, is defamation of Islam. Defamation of Jews and Christians would carry on unabated.

Besides, if it is under so-called "international law," it will be as binding on us as the law of Zimbabwe. Well, maybe after Breyer and the 9th Circuit are gone.
2.7.2007 3:23pm
ed o:
deny funding to the sacred and holy UN-the one true god of the left? has John Bolton hijacked this place. we cannot criticize or deny funding to the sacred institution, no matter what profoundly un-American stands it might take.
2.7.2007 3:35pm
Hoosier:
I have never been convinced by the "soft law" approach to inclusion of GA resolutions in international law. It doesn't seem, empirically, to be true that this happens. Israel would be illegal by now, for instance.

If being followed by a treaty or other "customary" mode of establishing international law is his evidence, as he seems to suggest in the excerpt, then what does he mean to say? Popular movements in democracies often lead to legislation. But the petitions, speeches at rallies, and even joint-resolutions of support don't constitute law.

How does one conclude that the non-binding resolutions of the GA are a body of law? And who decides when this transformation occurs?
2.7.2007 4:02pm
K Parker (mail):
In addition, the US and other liberal democracies should consider denying funds to the UN Human Rights Council
Well, that would be a tiny, but helpful, start in the right direction.

But why not going the full way: if you can find some UN programs that actually do achieve more good than harm, on balance, then let them be the starting programs for a new, genuine-democracies-only international organization, funded with our former UN contributions. But only if, after careful scrutiny, we determine that some other private organization or association can't do just as well.
2.7.2007 4:32pm
Ilya Somin:
if you can find some UN programs that actually do achieve more good than harm, on balance, then let them be the starting programs for a new, genuine-democracies-only international organization, funded with our former UN contributions. But only if, after careful scrutiny, we determine that some other private organization or association can't do just as well.

I agree!
2.7.2007 5:09pm
PatHMV (mail) (www):
Personally, I don't consider what you refer to as "raw international law" to be "law" of any sort. At best, they are aspirational proclamations set forth by the self-appointed, with no real input or consent from the individuals who would nominally be subject to the dictates of those proclamations.

The first article of the Louisiana Civil Code declares that "The sources of law are legislation and custom." While hardly binding on all the other jurisdictions of the world, I think this suffices for a good general statement on the proper sources of law. But the declarations of multi-national bodies are neither legislation nor custom.

They are not "custom" because they generally do not reflect the actual practices of even a majority of the world. They are not based on studies of how many or most people actually behave. They are not customs themselves, and they do not ever purport, generally, to be a codification of the actual customary practices of the people or nations to whom the "law" nominally applies.

And they are not "legislation" except to the extent they are consistent with actual legislative powers delegated to them by the people of the world, either directly or through their own sovereign governments.

Well, you've laid out a lot of the substance of why these pronouncements are bad in your article. My point is that to actually use the term "law" in referring to them is incorrect, and gives them too much credibility among the general public. Don't say "this type of international law has some shortcomings". Instead, say "pronouncements of bodies like the UNHCHR are not 'law' in any real sense of the word."
2.7.2007 5:35pm
gasman (mail):
So what is going to be interpreted as defamation of religion? Would flying airplanes into buildings in the name of allah be defamation? Mullahs encouraging young men and women to blow themselves up in crowded places might also be defamation of the islamic religion.
The muslims don't need our help in making islam look bad.
2.7.2007 5:43pm
Allison (mail):
Can Episopalians (even!) still petition for delivery from "false doctrine, heresy and schism"? One wonders if the cogniscenti thought about that.
2.7.2007 5:50pm
Elliot123 (mail):
It might be a bit more effective for our leaders to stand up and say the UN proposals are stupid and there is no chance in hell the US will follow them. This could save a lot of hand-wringing and op-ed column inches.
2.7.2007 5:54pm
tsotha:
So you say. But we did that with Kyoto and the International Criminal Court. The hands are so well-wrung they're all crinkly and flat.
2.7.2007 5:58pm
Fub:
PatHMV wrote:
The first article of the Louisiana Civil Code declares that "The sources of law are legislation and custom." While hardly binding on all the other jurisdictions of the world, I think this suffices for a good general statement on the proper sources of law.
While I understand and agree with your greater point, I flinch a bit at Louisiana as a model for rejecting foreign law.

As Stanley said to Stella in A Streetcar Named Desire,
...Now listen. Did you ever hear of the Napoleonic code, Stella?...Now just let me enlighten you on a point or two...Now we got here in the state of Louisiana what's known as the Napoleonic code. You see, now according to that, what belongs to the wife belongs to the husband also, and vice versa...It looks to me like you've been swindled baby. And when you get swindled under Napoleonic code, I get swindled too and I don't like to get swindled...
One would say analogous things about some California law as well.
2.7.2007 6:57pm
J. F. Thomas (mail):
While I understand and agree with your greater point, I flinch a bit at Louisiana as a model for rejecting foreign law.

A word of advice. If you ever buy a house in Louisiana, you are required to list all prior marriages on the title and the names of all previous spouses must be read at closing. When that part comes around the closing attorneys and realtors just love telling their favorite story of the husband or wife who found out about a previous marriage of his or her spouse for the first time.
2.7.2007 7:06pm
Cornellian (mail):
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.

Isn't that just black letter law?
2.7.2007 8:41pm
Ilya Somin:
Isn't that just black letter law?

Not according to numerous international law scholars, including Peter Spiro (cited in Eugene Volokh's last post).
2.7.2007 11:32pm
Lev:

Isn't that just black letter law?


Judging from what I have heard of Breyer's public appearances, no.
2.7.2007 11:36pm
Dave Hardy (mail) (www):
Which means, as we all know, is defamation of Islam. Defamation of Jews and Christians would carry on unabated.

Indeed. I would suggest that all proposed international standards first be given a local test. probably under difficult conditions, just to make sure.

So after Saudi Arabia and Iran have had and enforced such a law for two or three years, the rest of us can think about it.
2.7.2007 11:44pm
Brian G (mail) (www):
Dave,

I think Justice Brandeis would approve of your "laboratory" approach.
2.8.2007 1:51am
PatHMV (mail) (www):
Just for the record, Louisiana's civil code stems, ultimately, from the same source as the laws of France and Spain and most of the rest of the nations of Europe and Latin America. They all date back to the Roman's Code of Justinian, often through the Code Napoleon or the Spanish Siete Partides.
2.8.2007 10:31am