Protecting Religions from "Defamation": A Threat to Universal Human Rights Standards

By Leo, Leonard A.; Gaer, Felice D. et al. | Harvard Journal of Law & Public Policy, Spring 2011 | Go to article overview

Protecting Religions from "Defamation": A Threat to Universal Human Rights Standards


Leo, Leonard A., Gaer, Felice D., Cassidy, Elizabeth K., Harvard Journal of Law & Public Policy


INTRODUCTION (1)

Over the past decade, countries from the Organization of the Islamic Conference (OIC) have been working through the United Nations system to advance the problematic idea that there should be laws against the so-called "defamation of religions." (2) Although touted as a solution to the very real problems of religious persecution and discrimination, the OIC-sponsored U.N. resolutions on religious defamation instead provide justification for governments to restrict religious freedom and free expression. They also provide international legitimacy for existing national laws that punish blasphemy or otherwise ban criticism of a religion, which often have resulted in gross human rights violations. (3) These resolutions deviate sharply from universal human fights standards by seeking to protect religious institutions and interpretations, rather than individuals, and could help create a new international anti-blasphemy norm.

Since 2008, support at the U.N. for these flawed resolutions has been declining. (4) In fact, in 2010 defamation of religions resolutions received the fewest yes votes and the most no votes ever cast on this issue in both the U.N. Human Rights Council and the U.N. General Assembly, coming within, respectively, four (5) and thirteen votes of defeat. (6) This trend is encouraging. The United States and other U.N. member states that make protecting individual human rights an important objective should now redouble their efforts finally to defeat the defamation of religions resolution at the March 2011 Human Rights Council session.

In addition to seeking a new norm through these resolutions, OIC countries have argued in various U.N. contexts that existing international standards prohibiting advocacy of hatred and incitement already outlaw defamation of religions. (7) The provisions on which they rely--Article 20 of the International Covenant on Civil and Political Rights (ICCPR) and Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)--provide only limited exceptions to the fundamental freedoms of expression and religion. (8) These provisions were intended to protect individuals from violence or discrimination, not to protect religious institutions or ideas from criticism. (9) They should not be expanded to cover alleged religiously defamatory speech. Such an expansion--which unfortunately may have gained support from new language on negative religious stereotyping and incitement in a fall 2009 U.N. Human Rights Council freedom of expression resolution--would undermine international human rights guarantees, including the free of thought, conscience, and religion. It would also undermine the institutions that protect universal human rights worldwide.

I. ANALYSIS

A. The Flawed Defamation of Religions Concept

Since 1999, the OIC--a regional organization comprised of fifty-seven nations with Muslim majorities or significant Muslim populations--annually has sponsored resolutions in the U.N. Human Rights Council and its predecessor, the U.N. Commission on Human Rights, calling on U.N. member states to outlaw the so-called defamation of religions. (10) Similar resolutions have been adopted at the U.N. General Assembly each year since 2005. At the Human Rights Council in Geneva, Pakistan has led these efforts; at the General Assembly in New York, Egypt also has played a leading role. (11) The OIC has indicated that the goal of its efforts is the adoption of a binding international covenant against the defamation of religions. (12)

Although these resolutions purport to seek protection for religions in general the only religion and religious adherents that are specifically mentioned are Islam and Muslims. (13) Aside from Islam, the resolutions do not specify which religions, other than Islam, would deserve protection, nor explain how or by whom such a determination would be made. (14) The resolutions also do not define religiously defamatory speech, or explain who has authority to make that determination. …

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