Posted by Ilya Somin: The UN Human Rights Council Resolution on "Defamation of Religion" and the Influence of Repressive Regimes on International Human Rights Law: http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238385859
Last week, [1]the United Nations Human Rights Council adopted a resolution supporting the suppression of speech that "defames" religion. The resolution is not considered to be binding international law in and of itself, but many experts claim that such resolutions should be considered in determining what counts as "customary international law." The substantive weaknesses of the resolution are fairly obvious. In any society where people advocate public policies based at least in part on religious reasoning, free political debate is impossible unless opponents have the right to criticize that reasoning. Even when adherents of a given religion do not seek to use the power of the state to impose their views, open debate over the merits of those views is vital. For example, when the Catholic Church claims that the use of contraceptives is forbidden by God (but does not argue that contraception should be forbidden by the state), skeptics should be able to reply by arguing that the Church has misinterpreted God's will or even that there is no God in the first place. The UN Human Rights Council resolution also exemplifies a crucial procedural weakness of international human rights law: the extensive role of repressive authoritarian states in determining its content. Most of the nations that voted for the Human Rights Council resolution are oppressive dictatorships, whereas most liberal democracies opposed it. As I explained in [2]this post, the same thing happened when a similar resolution passed the UN General Assembly in 2007. To the extent that the content of human rights law is influenced by the very sorts of governments most likely to violate rights, that content is likely to do more to support their repressive activities than curb them. Unfortunately, that problem is far from limited to this particular resolution. As John McGinnis and I discuss in [3]this forthcoming article, it afflicts many other aspects of international human rights law as well. Even the Universal Declaration on Human Rights, usually considered the most important international human rights treaty, [4]includes repression-justifying provisions inserted at the behest of Joseph Stalin and his communist allies. Indeed, Article 7 of the UDHR (inserted because of Soviet influence) can easily be used to justify banning "defamation of religion," since it forbids speech that incites "discrimination" and any speech critical of a religious doctrine might inspire "discrimination" against that religion's adherents. The fact that the content of international human rights law is heavily influenced by oppressive governments does not prove that all of that content is harmful. Brutal dictatorships might sometimes support beneficial legal norms, and certainly democratic governments often support harmful ones. However, as John and I explain in our article, it does suggest that we should be wary of allowing such international law to displace the domestic law of liberal democracies. Although there will be exceptions, on average the domestic human rights law of democratic states is likely to be far better than international human rights law whose content has been heavily influenced by repressive regimes. References 1. http://www.google.com/hostednews/ap/article/ALeqM5iRHXSIoJJdXQpG3kPrRO2LWMnWTAD975TOK00 2. http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#1170874980 3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1116406 4. http://volokh.com/posts/1233622386.shtml _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
