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Another U.N. Official Demanding Speech Restrictions, and Faulting Denmark for Protecting Free Speech Too Much:

Agora reports, with translations from Danish sources:

Saturday, March 18th Jyllands-Posten broke the story about an attack by UN special rapporteur [on racism and xenophobia] Doudou Diéne on Denmark. The report has yet to be released to the public in full, but it was leaked by the UN to press sources in Denmark....

Jyllands-Posten’s Excerpts (not available online):

Their [the Danish government's][the cartoon-reprinting newspapers'] 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.

From Jyllands-Posten’s article on the case, we learn that the government 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.

Of course, last Fall the UN High Commissioner for Human Rights, Louise Arbour, said something similar: Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" And the backdrop of earlier UN agency resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility" makes matters still worse.

It also reminds me of the danger posed by the recent movement supporting the use of international law to influence U.S. constitutional norms. As Prof. Peter Spiro, a supporter of the movement (and one of the leading U.S. international law scholars) has written, 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."

Spiro's article was both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run":

Constitutional rights "adjusted" by treaty norms are changed by them. The Constitution is read to conform with the treaty.

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.

UPDATE: My post originally erroneously interpreted the "Their" in "Their uncompromising defense" as referring to Danish government officials; after looking at the full translation, I now realize that "Their" referred to the newspapers that reprinted the cartoons. I have corrected the post accordingly, striking out my original version and underlying the replacement. Nonetheless, the report does also criticize the Danish government — see the paragraphs following the one that contains the correction — so the overall tenor of my post is correct: It's just that the report criticizes not only the Danish government, but also the newspapers that reprinted the cartoons after the controversy erupted (when, in my view, the cartoons became even more newsworthy).

Related Posts (on one page):

  1. More from the UN Report Criticizing the Danish Government:
  2. Another U.N. Official Demanding Speech Restrictions, and Faulting Denmark for Protecting Free Speech Too Much:
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