Menacing free speech, the U.N. Committee on the Elimination of Racial Discrimination has ruled that Germany violated international law by not prosecuting a former German legislator for statements he made in an interview with a cultural journal. The statements included comments critical of immigration and the alleged dependence on welfare of Turkish immigrants to Germany.
This disturbing ruling illustrates that international norms are at odds with American civil-liberties such as freedom of speech, making it inappropriate for U.S. courts to enforce them in lawsuits under the Alien Tort Statute, as left-wing American legal scholars have urged the courts to do.
German prosecutors had concluded that the former legislator’s remarks were protected by Germany’s (limited) free-speech guarantees because, while offensive, they were part of a “discussion” of “problems of economic and social nature,” and did not rise to the level of hate speech. (Germany generally bans hate speech; by contrast in the U.S., the Supreme Court voided a hate-speech ordinance in 1992 on First Amendment grounds. A federal appeals court has also ruled that a professor’s racially-charged anti-immigration diatribes were protected speech in the Rodriguez case.)
Law professor Eugene Volokh reprints the speech that, “according to the Committee, must lead to a criminal prosecution in countries that have ratified the International Convention on the Elimination of All Forms of Racial Discrimination.” (The U.S. has ratified that convention, but, as Professor Volokh notes, “I am pleased to say that the U.S. has not recognized the competence of the Committee to enforce the Convention, though most European countries have; the U.S. has also ratified subject to a specific reservation in favor of the freedom of speech.”)
Giving UN officials a veto over people’s speech is a bad idea, especially given their weird, unrepresentative ideology, which often reflects hostility to America. Their strange ideology is illustrated by the disturbing remarks blaming America for the Boston terrorist bombing by “Richard A. Falk, the U.N. ‘human rights’ official and Princeton professor. . . .Commenting on the Boston bombing, Falk wrote, “Should we not all be meditating on W.H. Auden’s haunting line: ‘Those to whom evil is done/do evil in return’?” “The American global domination project is bound to generate all kinds of resistance in the post-colonial world. In some respects, the United States has been fortunate not to experience worse blowbacks, and these may yet happen, especially if there is no disposition to rethink US relations to others in the world.”
Earlier, I wrote about how it was a good thing that the Supreme Court blocked foreigners from suing in the U.S. over putative violations of “customary international law” by corporations and other defendants with deep pockets. Letting people sue over violations of “customary international law” would be like giving a blank check to lawyers with favored ideologies. International-law “experts” often define international obligations in ways that go far beyond what countries that ratified a treaty ever intended or contemplated, but which are appealing to “progressive” ideologies. Earlier, the UN “special rapporteur on torture,” Argentina’s Juan E. Méndez, sought to define as torture, in violation of international human-rights law, a wide variety of government policies, such as “restrictions on access to abortion” and “laws requiring sex change surgery before legal sex reassignment, laws that permit a parent to lose custody of a child solely because they use drugs, and mandatory HIV testing for ‘sex workers.’”
Letting people sue over violations of “international law” can be bad for civil liberties like free speech, equal protection, and private-property rights. Left-wing lawyers take vague international treaties and interpret them as mandating their ideological wish lists, such as restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” classes, government-sponsored “access to rapid and easy abortion,” and “the application of quotas and numerical goals.” (Governmental racial quotas violate the U.S. Constitution, as do quotas imposed on private enterprises by the government. Government-enforced gender quotas also generally violate the Constitution.).