McLean's Article on the Campaign to Create an International Law Norm Banning "Defamation of Religion":

Canada's MacLean's magazine has an excellent article on the United Nations campaign to create a new international law norm banning "defamation of religion."

Last year, Eugene Volokh and I criticized this movement in a series of posts. As I first pointed out in this post, the campaign - which is spearheaded by authoritarian Muslim states seeking to curtail criticism of Islam - exemplifies the dangerous influence of repressive regimes over the content of international law. John McGinnis and I have analyzed this problem in detail a series of articles (see here and here). John and I do not believe that all new international law norms are as dangerous as this one. But we do suggest that the influence of nondemocratic states over the content of these norms should lead us to be wary about allowing them to override the domestic law of liberal democracies.

An interesting aspect of the McLean's article are the comments by Louise Arbour, former UN High Commissioner for Human Rights. In the past, Arbour was supportive of efforts to censor speech she perceived as insulting to religions, including the famous Danish Mohammed cartoons. She claimed that publication of the cartoons might violate international law banning "hate speech" and further argued that international law requires states to criminalize "xenophobic" and other prejudicial speech (see pg. 1220 of this article for cites). In the MacLean's article however, Arbour is quoted as denouncing the Muslim states' campaign to censor speech that supposedly "defames" Islam at the UN Human Rights Council:

Louise Arbour, the former Canadian Supreme Court justice who served as the UN human rights commissioner, accused the countries of imposing "taboos" over the [UN Human Rights] council. "It is very concerning in a council which should be . . . the guardian of freedom of expression, to see constraints or taboos, or subjects that become taboo for discussion," she said at a news conference. She also noted that the treatment of homosexuals, who are prosecuted as criminals in a number of Islamic countries and others, is "fundamental" to the debate on sexual discrimination around the world. "It is difficult for me to accept that a council that is the guardian of legality prevents the presentation of serious analysis or discussion on questions of the evolution of the concept of non-discrimination," Arbour said.

Ironically, Arbour herself advocated imposing "constraints" and "taboos" to criminalize speech that she considered to be excessively hostile to particular religions or ethnic groups. Her current dissatisfaction with the Muslim states' efforts to take her principles farther than she intended is an excellent illustration of Eugene's point that censorship regimes tend to break out of the initial seemingly reasonable limits that their supporters might have wanted to impose.

As Eugene noted, this is particularly true of a broad, amorphous norm such as a ban on "defamation of religion." Given the broad scope of religious ethics, almost any political or ideological statement might be seen as offensive to the values of one religious group or another. To some theologically conservative Muslims and Christians, advocacy of gay equality is just as offensive to their religious sensibilities as a negative portrayal of the Prophet Mohammed was to those who sought to suppress the Danish cartoons. And claims that Muslim nations mistreat homosexuals might be viewed as no less "defamatory" of traditional Islam than the Mohammed cartoons. Arbour's desire to permit the former while censoring the latter is unlikely to cut any ice with the would-be censors. The right place to block this particular slippery slope is at the very top of the hill.