IHEYO

A new value is emerging in the realm of the peoples’ rights. Now two years in a row, the United Nations General Assembly has passed a resolution called, Combating Defamation of Religions. Although the Defamation Resolution applies to all religions, it highlights “the negative projection of Islam in the media and the introduction and enforcement of laws that specifically discriminate against and target Muslims.” The Defamation Resolution, first introduced in the 60th Session (2005) of the General Assembly, however, has failed to gain universal approval. The West is particularly opposed to the Defamation Resolution. In the 61st Session held in December 2006, the Defamation Resolution gathered slightly more support than before. Still, the opposition persists.

The General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community’s views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law. This article briefly examines the Defamation Resolution’s contents and the voting pattern to highlight the differing ideological viewpoints that inform the defamation debate.

Contents of Defamation Resolution: Taking into account the negative stereotyping of religions that exist in various regions of the world, the Defamation Resolution proclaims that defamation of religions causes social disharmony and leads to violations of human rights. The Resolution notes that in the aftermath of the September 11 attacks on the United States, Islam has been frequently and wrongly associated with terrorism, and the ethnic and religious profiling of Muslim minorities is becoming more and more acceptable. The Defamation Resolution deplores the use of print and electronic media to incite xenophobia against Islam or any other religion. It also condemns physical attacks on places of worship and religious symbols.

Furthermore, the Defamation Resolution urges states to prevent political institutions and organizations from fomenting discrimination, hostility, and violence against religious groups. It also urges states to complement their legal systems with intellectual and moral strategies to combat religious hatred and intolerance. The Resolution calls upon the international community to initiate a global dialogue between civilizations to promote a culture of tolerance and an awareness of religious diversity.

The Resolution does not define defamation. Traditionally, defamation applies to reputational injury to individuals. Group defamation is a problematic concept as it can stifle free speech and furnish undeserved protection to decadent customs and practices. The defamation of religions falls even beyond the concept of group defamation, since it may even prohibit the defamation of religious ideas and doctrines.

In the absence of a legally sustainable definition of defamation of religions, the Defamation Resolution will be taken in the West as an infringement upon free speech, a fundamental civil and political right deeply embedded in numerous human rights treaties and national constitutions. The United States Constitution tolerates very few constraints on the freedom of press, political speech, and academic freedom. The advocates of free speech will therefore have little use for a resolution that urges states to use the coercive power of law to
prevent defamation of religions. In secular legal systems, the protection of religious sensibilities at the cost of sacrificing artistic liberty and political rhetoric is considered a bad bargain.

Furthermore, some critics argue that the Defamation Resolution fails to distinguish between the dignity of religion, which must be protected, and valid criticisms of certain religious practices. The right to adopt a religion without coercion is a fundamental human right recognized in numerous human rights treaties. Muslim countries do not actively proselytize but they welcome non- Muslims to embrace Islam. However, some Muslim countries impose harsh punishments, including death penalty, if a Muslim converts to another religion. Many critics see these practices as a double standard. The International Humanist and Ethical Union, a non-governmental organization, while expressing its views before the UN Commission on Human Rights, was accused of attacking Islam when it “raised the issue of the treatment of those accused of apostasy in some Islamic countries.”

The idea of combating the defamation of religions, though morally sound, is difficult from a legislative viewpoint and will pose serious drafting challenges. The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups---a law adopted in almost all countries of the world except the United States. 11 One key function of law is to make distinctions and draw balance between competing rights. In the complex realm of human affairs, no right is absolute, not even free speech or the dignity of religion.  Accordingly, the law against defamation of religions may be constructed in a way that does not abridge legitimate speech including artistic freedom and yet protects the dignity of religion.

Conclusion: An overly broad interpretation of defamation would allow states to own a religion and persecute even their own citizens who challenge any aspect of this ownership. Valid criticisms of religious practices must not constitute actionable defamation. However, all nations must devote intellectual and moral resources to teach children and adults respect for the diversity of religions. A legal system in which religions are respected rather than trashed will not be a blemish on human civilization.

Ali Khan is a professor of law at Washburn University School of Law in Topeka, Kansas.