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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Wednesday, April 22, 2009

Dacey gets it right on Durban II

50 Voices of Disbelief contributor Austin Dacey has published a useful analysis of Durban II, pointing out that the conference was deeply flawed even if you set aside the anti-Semitic speech by Iran's Holocaust-denying President, Mahmoud Ahmadinejad.

Dacey highlights the illiberal nature of the existing UN anti-racism convention, the International Convention on the Elimination of All Forms of Racial Discrimination:

For nearly 40 years the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) has existed as an enforceable international treaty on racism and related forms of intolerance and discrimination. If this treaty has failed to compel signatory states to act against intolerance and discrimination, why should we expect Durban to succeed, even under the best of circumstances?

The truth is that the ICERD already goes too far in its efforts to curb hatred, calling for criminal penalties for the "dissemination of ideas based on racial superiority or hatred" and the participation in organizations that "promote and incite racial discrimination."

In other words, ICERD already contains unjustifiable restrictions on freedom of speech and freedom of association. While I have nothing but contempt for anti-Semitic loons such as Ahmadinejad, I do not want their speech to be suppressed on the basis that it promotes racial hatred (as it clearly does). Generally speaking, bad speech should be met with better speech and by other means that fall short of criminal penalties (or other kinds of state suppression). There may be exceptions, but they should be narrowly-tailored to prevent imminent harms or otherwise to advance compelling state interests.

Dacey points out that the US ratified ICERD in 1994, but only with reservations:

The Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association.

Accordingly, the United States does not accept any obligation under this Convention, in particular under Articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.

By contrast, I notice that Australia has taken a weak stance. Its reservation says no more than:

The Government of Australia ... declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4 (a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4 (a).

It's about time for all Western nations to stand up for fundamental liberal freedoms, such as freedom of speech and freedom of association, in international human rights forums. Durban II was almost certainly going to push the participant nations even further in an illiberal direction, with strong attempts to require full commitment to ICERD, plus the introduction of further, and far more worrying, restrictions on freedom of speech. Early drafts of the conference communique called for proscription of so-called "defamation of religion"; although this unacceptable language was removed from recent versions of the communique, negotiated in the weeks leading up to Durban II, there were legitimate grounds to fear that it would be returned to the agenda at the conference. Note that the UN's Human Rights Council passed a resolution condemning "defamation of religion" less than a month ago.

Even with the removal of the phrase "defamation of religion", the text of the draft Durban II communique contained plenty to worry about. Dacey again:

What’s more, the text calls for an elaboration of existing international standards in order to keep pace with new forms of intolerance (read "Islamophobia"). Now the Algeria-chaired Ad Hoc Committee on Complementary Standards, under the influence of the Islamic states and their African allies, is seeking to add to ICERD a protocol that would outlaw religiously offensive speech as "incitement."

Incitement normally has a fairly clear meaning. If I call on you to lynch a corn dealer (or, in more modern times, perhaps a merchant banker) on the basis that corn dealers (or merchant bankers) are starvers of the poor, that is incitement to violence. But if I am merely critical of the Catholic Church or its leaders, or its influence or its doctrines or its traditional attitude to sexuality, that is legitimate, indeed valuable, critical speech. If I criticise contemporary Iran for barbaric practices such as stoning adulterers or hanging homosexuals, that is legitimate critical speech, even if I (fairly or otherwise) blame Islam for these practices. But these are just the kinds of legitimate speech that the Organisation of the Islamic Conference nations, with majority support within the UN membership, wishes to see banned. The Human Rights Council has already banned all such speech in its own discussions, effectively gagging the International Humanist and Ethical Union's valuable contributions.

As I've said before, international norms developed under UN auspices should not be embraced uncritically by the liberal democracies of the West, such as Australia, the US, and the sophisticated nations of Europe. It should not be assumed that whatever is contained in such documents as UN conventions will always be, or is now, fully compatible with our fundamental freedoms. Unfortunately, the UN itself and the norms that it develops are compromised and flawed. Whenever they clash with our fundamental freedoms, the latter must prevail.

If it comes to a choice between our freedoms and the ongoing viability of the UN, the UN can go to hell.

1 comment:

george.w said...

Anti- freedom of speech resolutions of the UN particularly bother me because they make the UN (an institution that we need in some form) an enemy of freedom. They have been hijacked many times by various offenders of whom Ahmadinejad is only one example.

Damned if I know what to do. The US could take a more constructive role, for starters.