By Austin Dacey
Having followed the debates on religion and freedom of expression at the United Nations over the last several years, I have become accustomed to passing on bad news, such as a decade of resolutions by the Human Rights Council and the General Assembly “combating the defamation of religions.” Now that there is some good news, almost no one has noticed.
Late last month, the UN issued a new statement on the extent of freedom of speech under international law. It says that laws restricting blasphemy as such are incompatible with universal human rights standards.
The statement came from the Human Rights Committee, the body of eighteen “independent experts” mandated to monitor compliance with the International Covenant on Civil and Political Rights, or ICCPR, the 1966 human rights treaty that provides for freedom of opinion and expression and other fundamental rights. The Committee’s general comments represent authoritative interpretations of the provisions of the ICCPR. Unlike the highly-publicized resolutions produced by the Human Rights Council and the General Assembly, the provisions of the ICCPR are legally binding to its more than 165 parties.
The detailed 52-paragraph statement, General Comment No. 34, is the outcome of two years of intense debate among representatives of governments and civil society organizations. The Committee’s previous comment on freedom of opinion and expression, in 1983, was only four paragraphs long. In addition to taking up such matters as treason, defamation of heads of state, “memory laws” enforcing an official version of history, and the rights of bloggers, Comment 34 comes down strongly against religious limitations on speech. It does so not only by asserting that the right to free speech is foundational to a free and democratic society as well as to the protection and promotion of other rights. It also appeals explicitly to the values of freedom of conscience and equality before the law.
According to paragraph 48, “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.” Article 20, paragraph 2 calls on states to prohibit “advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.” The Comment is careful to require that any restrictions must not violate the Conventions’ guarantees of equality before the law (Article 26) and freedom of thought, conscience, and religion (Article 18).
Thus, for instance, it would be impermissible for any such laws to discriminate in favor of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.
Laws against blasphemy or “religious insult” (found throughout the world, including half of all Council of Europe member states) are inherently discriminatory against secularists and religious dissenters. They are discriminatory in that secularists have no legal recourse—nor should they—when the words of believers offend their moral sensibilities, nor can gays take the publishers of Leviticus to court for the spiritual affront to them that it surely is. Skeptics and heterodox believers, on the other hand, do have an Article 18 right to live and speak according to their conscience even when it offends the orthodox.
Paragraph 32 of the new comment also cautions states against employing a narrow notion of so-called public morals to restrict speech, effectively ruling out laws that defer to a particular faith tradition: “the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations… for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.”
The implication of these recommendations is that controversies over blasphemy are not just conflicts between “free speech” and faith, but clashes between competing claims of conscience. This stance is defended by the International Humanist and Ethical Union and elaborated in my forthcoming book, The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights.
The message of General Comment No. 34 is not only a clear condemnation of the blasphemy laws of countries such as Pakistan, which despite having ratified the ICCPR in 2008, continues to impose the death sentence for blasphemy and “defiling” the name of Prophet Muhammad. The Comment equally repudiates the decisions of the European Court of Human Rights in Strasbourg, which has upheld Austrian, British, and Turkish laws against blasphemy and religious insult by invoking a sui generis right to “respect for the religious feelings of believers.”
The major disappointment in the comment, in my view, is its failure to address hate speech laws, which in many countries function as de facto restrictions on blasphemy and sacrilege. Theoretically, we can distinguish between bashing a belief and bashing its adherents. Yet, absent some precise international norm, “advocacy of religious hatred” could mean anything from provoking imminent violence against individuals (criminalized even under the First Amendment) to the effectively unverifiable standard of being motivated by religious hostility, as under the UK’s Crime and Disorder Act of 1998. Convictions against writer and activists such as Paul Giniewski in France, Lars Hedegaard in Denmark, and Elisabeth Sabaditsch-Wolff in Austria demonstrate that hate speech laws are ripe for abuse even in liberal democracies.
Civil society activists now have the final legal authority of the United Nations on their side as they press governments to come into compliance with their treaty obligations and bring an end to the criminalization of blasphemy.