March 22, 2006

International law on speech restrictions?

UN "special rapporteur" on racism and xenophobia Doudou Diéne rips Denmark for one of its newspapers publishing those now well-known cartoons of Mohammed. That newspaper, Jyllands-Posten, has released part of the leaked report (my emphasis):

Their [the Danish government's] uncompromising defense of a Freedom of Speech without limits or restrictions is not in accordance with the international rules which are based on a necessary balance between Freedom of Speech and Freedom of Religion, especially to combat calls for racial and religious hatred, and which all the member countries of UN have decided are the basic rules for Human Rights. This attitude shows an alarming lack of sensitivity and understanding of the religious conviction and deep emotions of the groups of society in question. Thus the newspapers strengthen the connection between Islam and Terrorism which arose after September 11th and which is the most important reason for Islamophobia being on the rise in the world at large and in their own countries.

Oh, so a few little drawings are contributing to the rise of "Islamophobia," and "strengthens the connection" between Islam and terror. The actions of [radical] Islamists have little or nothing to do with "strengthening" those connections now, do they? Nor do they contribute to Islamophobia, eh?

Eugene Volokh notes that Denmark "is accused of breaking its international obligations by not conforming with the following three articles in the UN Covenant on Civil and Political Rights":

Article 18, paragraph three: Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Article 19, paragraph three:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre public), or of public health or morals.
Which limits certain rights in paragraph two:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 20, paragraph two:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Volokh then notes in this the danger of utilizing international law in determining national laws and policy. He brings up Prof. Peter Spiro who is a supporter of using international law for, in this case, a basis in determining US law doctrine:

... treaties can, in the long run, "insinuat[e] international law" that would create "a partial displacement of [U.S.] 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," he argued, international norms would and should be "relevan[t] ... in domestic constitutional interpretation." And "[i]n the long run, [this tendency] may point to the Constitution's more complete subordination."

Whoa. Indeed, Volokh concludes (emphasis mine):

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. Not a pretty prospect, it seems to me.

Darn right it ain't pretty, especially when it comes to free speech. Our First Amendment works damn well and has for over 200 years. Who wants the petty bureaucrats at the UN -- and their proxies on our Supreme Court like Ruth Ginsburg -- "interpreting" what the First Amendment (or any other, for that matter) "means" via international treaties, especially ones to which the United States isn't even a party??

Not me.

Be sure to read the excellent comments at the original Volokh post.

UPDATE: Mike at Down With Absolutes! has more, in his inimitable manner!

Posted by Hube at March 22, 2006 04:31 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

BTW, I forgot to add in the original post -- where the UN mouthpiece says Their [the Danish government's] uncompromising defense of a Freedom of Speech without limits or restrictions ... -- this is patently absurd on the face of it. NO freedom, speech included, is "without limit or restriction." And that's not what Denmark (or more specifically the paper in question) was arguing anyway. They were merely arguing what any paper worth its salt would do: The right to not only freedom of speech but press in printing a controversial -- yes -- cartoon but one with a clear political and social message.

Posted by: Hube at March 22, 2006 07:36 PM

Is this Doodoo guy (heh heh) on record condemning the anti-Semitic children's textbooks that are in schools all over the Islamic world? I'm guessing not, since the UN goes out of its way to condemn Israel but either ignores Islamic terror or blames it on the Israelis. Come on John Bolton, let's see an expression of outrage over the burning of national flags by Palestinians and their supporters as hateful provocation far worse than cartoons.

Posted by: G Rex at March 23, 2006 11:06 AM

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