Thursday, April 02, 2009

Comment on The Libety Blog.

Today I wrote a comment to this article by Barry Bussey on The Liberty Blog of the North American Religious Liberty Association.

My comment, with minor corrections of spelling, is as follows:
Thank you Mr. Bussy for this interesting report. You overstate, however, in my opinion, the resolution’s potential to become part of customary international law.

Customary international law can only be established if there is: 1) widespread observance of the rule or norm in question, 2) the rule is accepted as law. The later requirement, usually refered to by international jurists as ‘opinio juris’, entails that states act in accordance to a rule because they believe themselves to be under a international legal obligation to do so.

UN General Assembly resolutions can constitute evidence of ‘opinio juris’, but is not automatically treated as such. This resolution has had significant opposition in the Human Rights Council and UN General Assembly, as you point out in your article. Even if the resolution somehow became part of international law, it will still not bind states who do not consider themselves bound by it.

The main problem with the resolution is not, therefore, its potential to become international law and accepted norm. Rather its the affect it has on on the international human rights discourse. The resolution significantly discredits the Human Rights Council and international human rights in western liberal democracies, as some of the comments on this page is evidence of, and it emboldens governments advocating a more limited understanding of freedom of expression.


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