by Hans Bader on April 24, 2013 · 0 comments
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. My conviction has grown stronger, since I learned that 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 an interview with a cultural journal in which he said negative things about immigration and the alleged dependence on welfare of Turkish immigrants to his country. That ruling illustrates that international-law norms can be inimical to American civil-liberties such as freedom of speech, making it inappropriate for U.S. courts to enforce such foreign norms.
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.”)...To Read More....
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