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.
PersonFromPorlock says:
This is a point I raised in an earlier thread but internet problems kept me from posting it in a timely manner, so I’m going to raise it again: if it’s true that free speech is a natural right, what is our government doing discussing — let alone endorsing — its abrogation for anyone, anywhere?
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November 1, 2009, 6:52 pmJohn Moore says:
This should serve as an example to those who would (and often argue for here) make US laws and Constitution subsidiary to international “law.”
International law seems to have little or no legitimacy, since it is created by undemocratic processes and is not underpinned by a natural rights philosophy or constitution.
Hence, it becomes either a bludgeon used to defang the most powerful legitimate institution, the US government, or to legitimatize undemocratic or non-rights-based regimes.
It’s worship by the American left should cease.
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November 1, 2009, 7:20 pmTK75 says:
The hypocrisy of despotic nations voting in a democratic process on resolutions at the UN never ceases to amaze me, and the fact that democratic nations partake in this farce disgusts me.
The UN is a rotting cesspool of corruption and filth that serves no purpose except to legitimize tyrants and act as a forum to bash the US and Israel.
But I guess it makes sense for Obama...
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November 1, 2009, 8:29 pmArrowSmith says:
Leftists frequently cite “democracy” as the #1 morality they abide by. So 50% + 1 is always enough to decide the highest moral issues for them. There are no “natural rights” as far as they’re concerned. Very dangerous people, and they must be stopped at our borders.
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November 1, 2009, 8:49 pmArrowSmith says:
You make the UN to sound like Mos Eisley space port.
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November 1, 2009, 8:50 pmJohn Moore says:
Arrowsmith, it’s even worse than that. That can be 50%+1 of a count of nations in an international forum — regardless of the legitimacy of the government or the significant of the nation.
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November 1, 2009, 9:25 pmPeteP says:
The scary thing is, our President won’t stand up for the basic fundamental core values that made America what it is, the leader of the FREE ( emphasis on FREE ) world. He would rather have us follow the lead of repressive countries, so they’ll say nice things about him.
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November 1, 2009, 11:27 pmunhhyphenatedconservative says:
“So 50% + 1 is always enough to decide the highest moral issues for them.”
Unless they disagree with the 50%+ 1 and then that’s what they have the Courts for.
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November 2, 2009, 1:13 amLeo Eko says:
While the Obama administration’s co-sponsorship of this controversial resolution may seem like an act of realpolitik, it does have a whiff of naivete (like other Obama foreign policy overtures). Blasphemy is a crime in all Muslim countries. This is the first time the United States has officially placed itself on the side of authoritarian regimes who wish to create a blasphemy exception in international human rights law (Arab-Islamic countries are not against hate speech; they use it against Israel and the United States on a daily basis).
Make no mistake about it, this is a victory for the OIC (Organization of the Islamic Conference) which has been campaigning for international criminalization of “Islamophobia” and blasphemy since publication of the Mohammad cartoons in Denmark in 2005.
The Europeans who “voted” massively for Obama in 2008 are having second thoughts (at least when it comes to his posture towards Islam).
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November 2, 2009, 2:22 amRicardo says:
First you criticize international law because it is the outcome of “undemocratic processes.” Now, you concede that rules established by a 50%+1 majority (whether of the citizens of a country or representatives of other nations) are not necessarily legitimate anyway. “Undemocratic” is apparently just a synonym for “any process that creates results I don’t like.”
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November 2, 2009, 3:26 amTK75 says:
Ricardo, the point being made by several of us is that every nation does not deserve a seat at the table when it comes to certain issues such as this. By providing access and voting rights to all nations regardless of their repressive nature, it corrupts the UN and its legitimacy from within.
A human rights resolution sponsored by the most unfree and repressive regimes in the world? When the state-sponsored media in the Arab world stops printing the most vile anti-Semitic propaganda, then maybe we can start listening to anything they say without laughing at its hypocrisy.
Only in Obama’s land of make-believe should we listen to anything they say on the subject...
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November 2, 2009, 8:59 amdavod says:
The largest group pushing this is the Organization of the Islamic Conference.
The OIC’s main purpose is to ensure all Muslim countries rule according to the Koran and adopt Sharia law. The additional aim is to ensure Islamic principles are adopted wherever Muslims live.
Now why on earth would the OIC be pushing this.
More to the point, why did the US change from not supporting this. Is the US Gullible, naive, or worse.
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November 2, 2009, 11:15 amPeteP says:
“More to the point, why did the US change from not supporting this. Is the US Gullible, naive, or worse.”
You’re aware of our President’s middle name, right ?
‘nough said.
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November 2, 2009, 11:56 amADF Alliance Alert » How the Recent UN Human Rights Council Resolution on Freedom of Speech Exemplifies the Dangers of Authoritarian Regimes’ Influence over International Human Rights Law says:
[...] Somin writes at the Volokh Conspiracy: “The recent UN Human Rights Council Resolution endorsed by the Obama Administration [...]
Anonymous says:
That’s straight-up racism.
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November 2, 2009, 1:31 pmTheBadness says:
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.
Which is why, in most instances, we are content to cherry-pick international standards to provide persuasive support. So one is more likely to see persuasive authority from the ECHR than from North Korea; and one is unlikely (imo; I have some faith in The Nine) to see, say, the hijab, turban or kippah banned from public schools here in the USA.
And why most international authorities are only binding to the extent they have actual authority over their supposed recipients: individuals are subject to human rights/criminal tribunals up to the point countries are willing to extradite to them. Direct authority is very much the exception, with the huge exceptions of the GATT/WTO and NAFTA dispute resolution systems — each of which creates an ‘internal’ zone of authority and generally do not bind, or serve as precedential authority, in national courts.
And why a
committeecouncil carries no direct authority over us (rightly so), existing instead (in theory) as a means to encourage good behavior by engaging everybody in a democratic process. Sort of like how democracy was supposed to make Hamas play nice: it might work, but current developments are not promising.Quote
November 2, 2009, 1:58 pmAssistant Village Idiot says:
I am distressed by the general tendency to defer individual rights and responsibilities to the group morality even in small groups. To assign those rights not only to the nation, but beyond that to a collection of nations of highly varied legitimacy, strikes me as simply insane.
Anon, you do know what a “race” is, don’t you? Or are you just trying to trade off the connotative rather than denotative meaning of the word?
Sigh. You’re not alone in that, of course. The various “ists” have gradually become “comments about a group that are not sanctioned by the Better People.”
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November 2, 2009, 3:12 pmSolomon2 says:
More subtle is the effort by authoritarian regimes to make any killing of civilians into a war crime, clearing the way to legalize the taking of hostages by terrorists and tyrannical governments alike. The victims, of course, cannot protest...
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November 2, 2009, 3:26 pmArrowSmith says:
To be more consistent, I’d say I’m against any process that involves non-republican nations. I mean little-r republican, not the GOP. You know what I mean.
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November 2, 2009, 4:01 pmMartin says:
Ilya,
I basically agree with your post but I would be interested in your views on a narrow point of terminology and fact. You use the term “appease” to refer to the US government’s reasons for going along with restrictions on anti-Muslim speech. In my understanding, the word “appease” is commonly used when one party gives another party something the latter wants in hope of making the latter more satisfied with his position and therefore less likely to act aggressively. (Munich is the classic unsuccessful example, of course.)
It seems to me the US has more complex and subtle reasons for engaging demonstrative pro-Muslim behavior at the present time. The US is trying to persuade several Muslim governments to engage in costly and dangerous military activity to promote US objectives (Iraq, Afganistan, Pakistan) and other Muslim governments to support diplomatic initiatives (e.g., trying to get Egypt to limit arms flow to Gaza). We are also trying to persuade various Muslim non-governmental groups to support us
in these initiatives (e.g., getting Sunni clans in Iraq to oppose Al Quaida, possibly trying to split the Taliban in Afganistan, etc.). In this context, pandering to Muslim sensitivities on speech issues is arguably more like ordinary diplomatic horse trading than “appeasement” in the Munich sense of the term.
I think I would agree that restrictions on free speech should not be used for diplomatic horsetrading. But if my analysis is correct, what is going on is different from appeasement. The practical significance is that, as a matter of political and bureaucratic strategy, stopping the use of free speech for diplomatic horsetrading may require different methods and different arguments than opposing simple appeasement.
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November 2, 2009, 5:47 pmdavod says:
“More subtle is the effort by authoritarian regimes to make any killing of civilians into a war crime, clearing the way to legalize the taking of hostages by terrorists and tyrannical governments alike. The victims, of course, cannot protest...”
This is also the reason they tried to change (They might well have done it for all I know) the Geneva Convention to give specific rights to the ratbags who were fighting out of uniform and using the civilian population for cover.
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November 2, 2009, 7:27 pm“Troubling signals on free speech” says:
[...] In “a little-publicized October 2 resolution … [the U.S.] State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive, notes Stuart Taylor, Jr.’s new column for National Journal. Legal academics, including some who have gone on to join the Obama Administration, have sketched out doctrines indicating “how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws… In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus.” More: Reason, Jonathan Turley/USA Today. And (h/t comments): A Monday statement by Secretary of State Clinton is being widely greeted as reaffirming a free-speech position, but Taylor is not convinced that it undoes the damage. Nor, it seems, are Eugene Volokh and Ilya Somin. [...]
John Moore says:
Ricardo wrote:
Two points: we are discussing international affairs. A majority of “representatives” of countries is not even close to diplomatic, because unlike voters, countries do not and should not be granted equal rights. For that matter, they don’t have rights at all. Hence, my original point about international law stands: it is illegitimate at its base, and hence illegitimate in general.
International law lacks:
1) legitimate methods of original formation
2) legitimate methods of adjudication (the ICJ is hardly universally legitimate)
3) methods of enforcement
In other words, it is a fiction.
What is not a fiction is the international contracts and norms that some countries conform to, most of the time, when it suits them. To raise that to the standard of legitimate law (or even to call it law) is laughable, no matter how stylish or common the practice.
Regarding individual voters, which you may have inferred from my response to someone else who raised the issue — the US Constitution rightly recognizes that pure democracy is a terrible idea on important issues, as does every other country in the world that I am aware of. So yeah, a 50%+1 vote, at least on certain issues (say, whether to repeal the 1st amendment) should not be recognized as valid. However, a clean vote is a democratic process, even if it is applied inappropriately.
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November 3, 2009, 7:04 pmArrowSmith says:
John Moore — the ICJ is legitimate because lefties believe it is. Their opinion is all that counts. Your and my opinion are of no relevance to them.
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November 3, 2009, 7:39 pm