The recent UN Human Rights Council Resolution endorsed by the Obama Administration exemplifies a key weakness of international human rights law that John McGinnis and I have focused on in our academic work (e.g. here and here): the heavy influence of repressive authoritarian governments over its content. In this case, the resolution was initially promoted primarily by authoritarian Islamic governments who hoped that it would legitimize efforts to suppress “anti-Muslim” speech. The Obama Administration supported the resolution, I would guess, primarily in order to improve the US image with those governments and their traditionalistic Muslim and Islamist sympathizers.
For reasons indicated by co-blogger Eugene Volokh (here , here, and here), Jonathan Turley, and others, the resolution does indeed justify gross infringements on freedom of speech. As they point out, it threatens free speech not only in the authoritarian states that initially proposed it, but also (though to a much lesser degree) in those Western nations that tend to incorporate international human rights law into their domestic law. While the Resolution probably doesn’t count as international law in and of itself, it is the sort of document that many experts claim can be emobided in “customary international law” over time (see the discussion in this article, and also Eugene’s take here).
It is unlikely that the US and other Western nations would have agreed to this resolution if not for the influence of authoritarian Muslim states that they sought to appease. Thus, the influence of repressive regimes helped promote the enactment of “human rights” law that legitimate their abuses and could potentially weaken protection for freedom of speech and other important liberties in the West.
This danger is not unique to this particular resolution. Rather, as John McGinnis and I discuss in this article, it infects the entire body of modern international human rights law. For example, the Universal Declaration of Human Rights – generally considered the most important international human rights treaty – includes repressive elements introduced at the behest of the Stalinist USSR and its allies. Even when a particular human rights proposal has been endorsed by liberal democracies, it often reflects dubious compromises with repressive states, and thus promotes principles that undermine freedom more than democratic governments would if left to decide for themselves, free of authoritarian influence. The HRC resolution is a good example of this phenomenon, as is the Universal Declaration.
Given the great influence of repressive regimes over its content, it is likely that international human rights law, as currently developed, does more to legitimize repression than to protect freedom. This is especially likely in light of the fact that repressive regimes can usually disobey those aspects of such law that might genuinely weaken their grip on power. By contrast, liberal democratic states are likely to take the rule of law more seriously and therefore to actually obey repressive elements of human rights treaties that they ratify and commit to incorporating into their domestic law.
None of this proves that every aspect of international human rights law is harmful. Even the worst governments might sometimes support relatively beneficial legal rules. It does, suggest, however, that we should view the current body of law in this area with great suspicion, and be very reluctant to allow it to override or influence the domestic law of liberal democracies.
UPDATE: I have changed the title of this post to make it clearer.
UPDATE #2: I previously blogged about the influence of repressive regimes over international law in this series of posts.