ISSUE - Canada & United States - differ on the right to freedom of opinion and expression

 

THE TANDEM PROJECT

http://www.tandemproject.com.

 

UNITED NATIONS, HUMAN RIGHTS,

FREEDOM OF RELIGION OR BELIEF

 

N.Y. TIMES ARTICLE: OUTSIDE OF U.S., HATE SPEECH CAN BE COSTLY

 

Issue: Canada & United States – differ on the right to Freedom of Opinion and Expression

 

For: United Nations, Governments, Religions or Beliefs, Academia, NGOs, Media, Civil Society

                                                                                                                                                                             

Review: ARTICLE: Outside U.S., Hate Speech Can Be Costly by Adam Liptak, New York Times, Thursday, June 12, 2008. VANCOVER, British Columbia – “A couple of years ago, a Canadian magazine published an article arguing that the rise of Islam threatened Western values. The article’s tone was mocking and biting, but it said nothing that conservative magazines and blogs in the United States do not say every day without fear of legal reprisal. Things are different here. The magazine is on trial. Two members of the Canadian Islamic Congress say the magazine, Maclean’s, Canada’s leading newsweekly, violated provincial hate speech law by stirring up hatred against Muslims.”

 

Canada was the primary sponsor in the U.N. Human Rights Council seventh session in March, 2008 for the draft resolution on the right to freedom of opinion and expression. There was a debate in the session on the relationship of the draft resolution on the promotion and protection of the right to freedom of opinion and expression (A/HRC/7.L.24) and the right to freedom of religion or belief. Two resolutions were passed on 25 March, 2008; (A/HRC/7/L.15) defamation of religion, and an amendment (A/HRC/7/L.39) limiting (A/HRC/7/L.24) in the opinion of Canada, prime sponsor in the U.N. Human Rights Council for the mandate, the right to freedom of opinion and expression. See this Issue Statement on the positions of the U.N. Human Rights Council members and votes taken without consensus.

 

Louise Arbour, in her final report as United Nations High Commissioner for Human Rights to the United Nations Human Rights Council on 2 June 2008 said; “OHCHR is committed to the development of international human rights law in a manner that is responsive to current preoccupation and debates. In order to protect individuals and groups, we must develop a better understanding of the permissible limitations to freedom of expression by taking into account the mandatory prohibition of advocacy of religious hatred that constitutes incitement to discrimination, hostilities or violence. OHCHR will thus organize an expert consultation on this topic which will also provide guidance on how to ensure the fullest respect for freedom of expression both in multicultural and homogenous ones that may have little tolerance for discordant voices.”

 

Extracts from the article, Outside of U.S. Hate Speech can be Costly,

begins on the third page are followed by an Issue Statement

 

Closing the Gap - International Standards for National and Local Applications*

 

Objective: Build understanding and support for Article 18, International Covenant on Civil and Political Rights –Everyone shall have the right to freedom of thought, conscience and religion - and the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. Encourage the United Nations, Governments, Religions or Beliefs, Academia, NGOs, Media and Civil Society to consider the rule of law and international human rights standards as essential for long-term solutions to conflicts based on religion or belief.

 

Challenge: In 1968 the United Nations deferred work on an International Convention on the Elimination of all Forms of Religious Intolerance, because of its apparent complexity and sensitivity. In the twenty-first century, a dramatic increase of intolerance and discrimination on grounds of religion or belief is motivating a worldwide search to find solutions to these problems. This is a challenge calling for enhanced dialogue by States and others; including consideration of an International Convention on Freedom of Religion or Belief for protection of and accountability by all religions or beliefs. The tensions in today’s world inspire a question such as:

 

Should the United Nations adopt an International Convention on Freedom of Religion or Belief?

 

Response: Is it the appropriate moment to reinitiate the drafting of a legally binding international convention on freedom of religion or belief? Law making of this nature requires a minimum consensus and an environment that appeals to reason rather than emotions. At the same time we are on a learning curve as the various dimensions of the Declaration are being explored. Many academics have produced voluminous books on these questions but more ground has to be prepared before setting up of a UN working group on drafting a convention. In my opinion, we should not try to rush the elaboration of a Convention on Freedom of Religion or Belief, especially not in times of high tensions and unpreparedness. - UN Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir, Prague 25 Year Anniversary Commemoration of the 1981 UN Declaration, 25 November 2006.

 

Option: After forty years this may be the time, however complex and sensitive, for the United Nations Human Rights Council to appoint an Open-ended Working Group to draft a United Nations Convention on Freedom of Religion or Belief. The mandate for an Open-ended Working Group ought to assure nothing in a draft Convention will be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights, the International Covenants on Human Rights, and the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

 

Concept: Separation of Religion or Belief and State – SOROBAS. The First Preamble to the 1948 United Nations Universal Declaration of Human Rights reads; “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.  This concept suggests States recalling their history, culture and constitution adopt fair and equal human rights protection for all religions or beliefs as described in General Comment 22 on Article 18, International Covenant on Civil and Political Rights, UN Human Rights Committee, 20 July 1993 (CCPR/C/21/Rev.1/Add.4):

 

Article 18: protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with international characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community. Article 18: permits restrictions to manifest a religion or belief only if such limitations are prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

 

Dialogue & Education

 

Dialogue: United Nations Secretary General Ban Ki Moon, at an Alliance of Civilizations Madrid Forum said; “Never in our lifetime has there been a more desperate need for constructive and committed dialogue, among individuals, among communities, among cultures, among and between nations.” A writer in another setting has said, “The warning signs are clear: unless we establish genuine dialogue within and among all kinds of belief, ranging from religious fundamentalism to secular dogmatism, the conflicts of the future will probably be even more deadly.” 

 

Norms and standards on human rights and freedom of religion or belief are essential as universal rules for peaceful cooperation, respectful competition and resolution of conflicts. International Standards on Human Rights and Freedom of Religion or Belief is a universal platform for genuine, all-inclusive dialogue within and among nations, religions and other beliefs.

 

Education: Ambassador Piet de Klerk addressing the Prague 25 Year Anniversary Commemoration of the 1981 U.N. Declaration said; “Our educational systems need to provide children with a broad orientation: from the very beginning, children should be taught that their own religion is one out of many and that it is a personal choice for everyone to adhere to the religion or belief by which he or she feels most inspired, or to adhere to no religion or belief at all.”

 

The 1981 U.N. Declaration states; “Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents, the best interests of the child being the guiding principle.” With International Human Rights safeguards, early childhood education is the best time to begin to build tolerance, understanding and respect for freedom of religion or belief.

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Direct Link to New York Times article Outside U.S., Hate Speech Can Be Costly:

 

http://www.nytimes.com/2008/06/12/us/12hate.html?_r=1&adxnnl=1&oref=slogin&ref=todayspaper&adxnnlx=1213276682-xMyIIWdhKA7/Go882OnbNA&pagewanted=print

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Extracts: Extracts are presented under the Eight Articles of the 1981 U.N. Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief. Examples of extracts are presented prior to an Issue Statement for each Review.  

 

3. 1 Discrimination between human beings on grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.

 

VANCOVER, BRITISH COLUMBIA - A couple of years ago, a Canadian magazine published an article arguing that the rise of Islam threatened Western values. The article’s tone was mocking and biting, but it said nothing that conservative magazines and blogs in the United States do not say every day without fear of legal reprisal.” Things are different here. The magazine is on trial.

 

Two members of the Canadian Islamic Congress say the magazine, Maclean’s, Canada’s leading newsweekly, violated a provincial hast speech law by stirring up hatred against Muslims. They say the magazine should be forbidden from saying similar things, forced to publish a rebuttal and made to compensate Muslims for injuring their “dignity, feelings and self-respect.”

 

In the United States, that debate has been settled. Under the First Amendment, newspapers and magazines can say what they like about minorities and religions – even false, provocative or hateful things – without legal consequences. Canada, England, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech. Israel and France forbid the sale of Nazi items like swastikas and flags. It is a crime to deny the Holocaust in Canada, Germany and France.

 

Some prominent legal scholars say the United States should reconsider its position on hate speech. “It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a legal philosopher, wrote in The New York Review of Books last month, “when they say that a liberal democracy must take affirmative responsibility for protecting the atmo9sphere of mutual respect against certain forms of vicious attack.”

 

Harvey A. Silverglate, a civil liberties lawyer in Cambridge, Mass., disagreed. “When times are tough,” he said, “there seems to be a tendency to say there is too much freedom. Freedom of speech matters because it works,” Mr. Silverglate continued. Scrutiny and debate are more effective ways of combating hate speech than censorship, he said, and all the more so in the post-Sept. 11 era.

 

The First Amendment is not, of course, absolute. The Supreme Court has said that the government may ban fighting words or threats. Punishments may be enhanced for violent crimes prompted by racial hatred…But merely saying hateful things about minorities, even with the intent to cause their members distress and to generate contempt and loathing is protected by the First Amendment.

 

In Canada, however, laws banning hate speech seem to stem from a desire to promote societal harmony. While the Ontario Human Rights Commission dismissed a complaint again Maclean’s, it still condemned the article. In Canada, the right to freedom of expression is not absolute, nor should it be,” the commission’s statement said. “By portraying Muslims as all sharing the same negative characteristics, including being a threat to ‘the West,’ this explicitly expression of Islamophobia further perpetuates and promotes prejudice toward Muslims and others.” A federal complaint against Maclean’s is pending.

 

Mr. Steyn, the author of the article, said the Canadian proceedings had illustrated some important distinctions. “The problem with so-called hate speech laws is that they’re not about facts,” he said in a telephone interview. “They’re about feelings.”

 

“What we’re learning here is really the bedrock difference between the United States and the countries that are in a broad sense its legal cousins,” Mr. Steyn added. “Western governments are becoming increasingly comfortable with the regulation of opinion. The First Amendment really does distinguish the U.S. not just from Canada but from the rest of the Western world.”

 

ISSUE STATEMENT: This Issue Statement is on the differing views of Canada and the United States on hate speech and the right to Freedom of Opinion and Expression. This is a topic that has been a subject of debate within the U.N. Human Rights Council on the differences in the Human Rights Council; as it relates to Freedom of Religion or Belief as it relates to Freedom of Religion or Belief. The U.N. Office of High Commissioner for Human Rights has announced they will organize an expert consultation on permissible limitations to freedom of opinion and expression in relation to the right to Freedom of Religion or Belief. Here are some points both on the difference between Canada and the United States, and the differences in the U.N. Human Rights Council, in preparation for the OHCHR expert consultation:

 

1. The United States of America signed the International Covenant on Civil and Political Rights on October 5, 1977 and ratified on June 8, 1992. Upon ratification, the United States made the following reservation:

 

2. United States of America: Reservation: (1). That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. Article 20 of the International Covenant on Civil and Political Rights reads: (1). Any propaganda for war shall be prohibited by law. (2) Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

 

3. Article 19: International Covenant on Civil and Political Rights: (1). Everyone shall have the right to hold opinions without interference. (2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (3). The exercise of the rights provided for in the foregoing paragraph carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall be such only as are provided by law and are necessary, (a) for respect of the rights or reputations of others, (b) for the protection of national security or of public order (“ordre public”), or of public health or morals.

 

4. Article 20: International Covenant on Civil and Political Rights: (1) Any propaganda for war shall be prohibited by law. (2) Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

 

5. The difference between Canada and the United States seems to be over how the two countries interpret the phrase “subject to certain restrictions” in paragraph (3) of Article 19 of the ICCPR and “religious hatred that constitutes incitement to discrimination” in paragraph (2) of Article 20 of the ICCPR.

 

6. In the United States under the First Amendment, newspapers and magazines can say what they like about minorities and religions – even false, provocative or hateful things – while “Canada, England, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech. Israel and France forbid the sale of Nazi items like swastikas and flags. It is a crime to deny the Holocaust in Canada, Germany and France.”

 

7. These phrases seem to qualify as the subject of debate as well on the U.N. Human Rights Council between Canada and the European Union (EU) and the Organization of the Islamic Conference (OIC). On the last day of the U.N. Human Rights Council seventh session, March 25, 2008, two draft resolutions were adopted without consensus; (A/HRC/7/L.15) defamation of religion, and (A/HRC/7/L.24) the mandate on freedom of opinion and expression as amended. The differences seemed to be principally between Canada and members of the Council from the European Union (EU) on one side and Council members of the Organization of the Islamic Conference (OIC) on the other.

 

8. Two resolutions passed without consensus were; (A/HRC/7/L.15) defamation of religion, and (A/HRC/7/L.24) the mandate on freedom of opinion and expression as amended. The differences were principally between the European Union (EU) and member states that are also members of the Organization of the Islamic Conference (OIC). The EU believes Article 19 and Article 20 of the International Covenant on Civil and Political Rights are sufficient human rights instruments to cover protection against discrimination on incitement to racial and religious hatred. For the EU, reporting restrictions placed on freedom of opinion and expression is tantamount to a violation of the foundational principle of democracy.

 

9. There was a debate between members of the UN Human Rights Council on the relationship of freedom of opinion and expression to freedom of religion or belief. (A/HRC/7/L.15) – Defamation of religion passed 21 in favor, 10 against, 14 abstentions; (A/HRC/7/L.24) – Mandate on freedom of opinion and expression with amendments L.39 and Cuba oral amendment, passed 32 in favor, 0 against, 15 abstentions. (A/HRC/7/L.39) – Amendment to the mandate on freedom of opinion and expression “to report on instances in which abuse of the right to freedom of expression constitutes an act of racial or religious discrimination” passed 27 in favor, 17 against, 3 abstentions: Cuba oral amendment to mandate on freedom of opinion and expression adding “and also the importance for all forms of media to report and deliver information in a fair and impartial manner” passed 32 in favor, 0 against, 15 abstentions.

 

10. The OIC believes caricatures, cartoons, films and other media issues in some EU and other countries is Islamophobia; a fear of Islam or an abuse or defamation of religion and reporting restrictions must be placed on the media when such abuse of any religion is involved. Canada, the main sponsor of the original draft resolution on freedom of opinion and expression responded by saying; “Requesting a Special Rapporteur to report on abuse of this right would turn the mandate on its head. Instead of promoting freedom of expression the Special Rapporteur would be policing its exercise.” Canada then said if this amendment is adopted as proposed by the OIC they would withdraw sponsorship from the main resolution. Canada’s position, according to one NGO source, was “echoed by several delegations including India, who objected to the change of focus from protecting to limiting freedom of expression.”

 

11. In the week HRC resolutions on defamation of religion and restrictions on freedom of opinion and expression were approved a film, “Fina,”was released over the Internet by a Dutch Member of Parliament, Mr. Geert Wilders associating Muslims exclusively with violence and terrorism. The Dutch Government had a fast and balanced reaction to the film saying the “vast majority of Muslims reject extremism and violence;” as the Government defends the right to freedom of opinion and expression as a foundation of democracy. Three UN Special Rapporteurs issued a joint statement on 28 March 2008 critical of the film. The High Commissioner for Human Rights joined the condemnation saying she urges all those who understandably feel profoundly offended to denounce its hateful content by peaceful means saying, “There is a protective legal framework, and the controversy that this film will generate should take place within it.”

 

12. The EU believes Article 19 and Article 20 of the International Covenant on Civil and Political Rights are sufficient human rights instruments to cover protection against discrimination on incitement to racial and religious hatred. For the EU, reporting restrictions placed on freedom of opinion and expression is tantamount to a violation of the foundational principle of democracy.

 

13. Canada, the main sponsor of the draft resolution on freedom of opinion and expression responded by saying; “Requesting a Special Rapporteur to report on abuse of this right would turn the mandate on its head. Instead of promoting freedom of expression the Special Rapporteur would be policing its exercise.” Canada said if this amendment is adopted as proposed by the OIC they would withdraw sponsorship from the main resolution. Canada’s position, according to one NGO source, was “echoed by several delegations including India, who objected to the change of focus from protecting to limiting freedom of expression.”

 

14. This demonstrates the sensitivity of the question on hate speech and it relationship to the promotion and protection of the right to freedom of opinion and expression. Canada as the prime sponsor of the mandate on freedom of opinion and expression in the seventh session of the U.N. Human Rights Council does not support the United States on protection for hate speech as an aspect of freedom of opinion and expression, as shown in the New York Times article, Outside of U.S., hate speech can be costly.

 

15. Into this complex multi-national, multi-cultural debate over limitations to freedom of opinion and expression steps the U.N. Office of High Commissioner for Human Rights. Ms. Louise Arbour, in her final report as United Nations High Commissioner for Human Rights to the United Nations Human Rights Council on June 2, 2008 said; “OHCHR is committed to the development of international human rights law in a manner that is responsive to current preoccupation and debates. In order to protect individuals and groups, we must develop a better understanding of the permissible limitations to freedom of expression by taking into account the mandatory prohibition of advocacy of religious hatred that constitutes incitement to discrimination, hostilities or violence. OHCHR will thus organize an expert consultation on this topic which will also provide guidance on how to ensure the fullest respect for freedom of expression both in multicultural and homogenous ones that may have little tolerance for discordant voices.”  

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* Preface Closing the Gap – International Standards for National and Local Applications, considers the question of a Convention on Freedom of Religion or Belief followed by a Response from the Special Rapporteur on Freedom of Religion or Belief, The Tandem Project Option and Concept, and human rights-based Dialogue & Education.

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The Tandem Project: a non-profit, non-governmental organization established in 1986 to build understanding and respect for diversity of religion or belief, and prevent discrimination in matters relating to freedom of religion or belief. The Tandem Project has sponsored multiple conferences, curricula, reference materials and programs on Article 18 of the International Covenant on Civil and Political Rights – Everyone shall have the right to freedom of thought, conscience and religion - and the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.

 

The Tandem Project initiative was launched in 1986 as the result of a co-founder representing the World Federation of United Nations Associations (WFUNA) at a 1984 United Nations Geneva Seminar, Encouragement of Understanding, Tolerance and Respect in Matters Relating to Freedom of Religion or Belief, called by the UN Secretariat on ways to implement the 1981 UN Declaration. In 1986, The Tandem Project organized the first NGO International Conference on the 1981 UN Declaration.

 

The Tandem Project Executive Director: Michael M. Roan, mroan@tandemproject.com.

 

Documents Attached:


N.Y. Times Article - Outside of U.S., Hate Crimes Can be Costly

Protecting the Right to Freedom of Opinion and Expression

 

The Tandem Project is a UN NGO in Special Consultative Status with the

Economic and Social Council of the United Nations