Legal Commentary

UN General Assembly Committee Passes New Version of Resolution Urging Nations to Forbid Defamation of Religion

By Ilya Somin

The United Nations General Assembly Third Committee recently passed another resolution urging nations to ban defamation of religion [HT: Elizabeth Cassidy of the US Commission on International Religious Freedom, which criticized the resolution here]:

A U.N. General Assembly committee once again voted to condemn the ?vilification of religion? on Tuesday, but support narrowed for a measure that Western powers say is a threat to freedom of expression.

The non-binding resolution, championed by Islamic states and opposed by Western countries, passed by only 12 votes in the General Assembly?s Third Committee, which focuses on human rights, 76?64 with 42 abstentions.

Opponents noted that support had fallen and opposition increased since last year, when the Third Committee vote was 81?55 with 43 abstentions. The 192-nation General Assembly is expected to formally adopt the measure next month.

The resolution was amended from versions passed in previous years in an attempt to secure support from Western nations. Instead of defamation of religion, it speaks of ?vilification.? It also condemned acts of violence and intimidation due to ?Islamophobia, Judeophobia and Christianophobia.?

Senior Conspirator Eugene Volokh and I explained why previous incarnations of this resolution pose a threat to freedom of speech and religion here, here, and here. As I have pointed out previously, this is an excellent example of the ways in which repressive governments seek to use international human rights law to suppress freedom rather than protect it, a problem I have written about in two articles coauthored with John McGinnis (see here and here). Most of the support for this resolution comes from authoritarian and repressive regimes, many of which have terrible records on religious freedom. The resolution was sponsored by the Organization of the Islamic Conference. Most OIC members are authoritarian states, and many are notoriously intolerant of non-Muslim religions, secularism, and even versions of Islam at odds with that espoused by their rulers.

The new text of the resolution is slightly altered from previous versions, this time targeting ?vilification? of religion rather than ?defamation.? Advocates claim that this change represents a concession. In my view, it actually makes the resolution worse. At least in Anglo-American and European law, the term ?defamation? implies a false statement. Truth is a defense to a defamation action. By contrast, ?vilification? may encompass even true charges against a religion. Whether intentionally or not, the sponsors have managed to make a bad resolution even worse. Moreover, the new text still explicitly urges states to ?prohibit the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence.? Almost any strong criticism of a religious organization or its beliefs could qualify as ?incitement? to ?hostility? or ?discrimination.?

Although the resolution is nonbinding, many scholars and advocates of broad interpretations of international law see such UN resolutions as contributing to ?customary international law? norms that all states must obey, even if they have not explicitly ratified them. There is little danger that the resolution will undermine freedom of speech or religious freedom in the US in the near future. But it poses a greater threat in nations where resistance to domestic incorporation of customary international law norms is weaker. More generally, the debate over this resolution highlights the need to forcefully oppose efforts to use such dubious ?norms? to override the domestic law of liberal democracies.

Full post as published by The Volokh Conspiracy on November 24, 2010 (boomark / email).