Throughout this week, U.N. officials, country delegates, and human-rights groups have repeatedly chastised the ten countries that chose to boycott Durban II. According to this narrative, the final Durban II outcome document was a triumph of compromise that, unlike earlier drafts, did not disparage Israel or undermine fundamental human rights.
This is true — to an extent. The final document was vastly better than earlier drafts. Of course, it was improved only after the U.S. and other countries announced their intention to boycott if the document was not fundamentally changed.
That said, however, we would argue that even had the U.S. not boycotted the conference, it should not have supported the final outcome document even in its improved form because it makes significant references — overt and implicit — that run counter to U.S. policy regarding Israel and the fundamental rights to freedom of opinion, expression, and assembly.
On the matter of Israel, the very first paragraph of the Durban II outcome document reaffirms without reservation the 2001 Durban Declaration and Program of Action. That document, under a section titled “Victims of racism, racial discrimination, xenophobia and related intolerance,” specifically states: “We are concerned about the plight of the Palestinian people under foreign occupation.” The clear implication that Palestinians were victims of Israeli racism, racial discrimination, xenophobia, or related intolerance in the 2001 DDPA was a key reason that the Obama administration included support for that document “in toto” among the red lines that would lead it to boycott Durban II.
Specific references to combating “defamation of religions,” with its serious implications for freedom of opinion and expression, were removed from the Durban II outcome document. But numerous calls for constraints on the freedom of opinion and expression and, in a few instances, freedom of assembly remain. For instance:
– Paragraph 13 states that “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination as well as all acts of violence or incitement to such acts shall be declared offence punishable by law.”
– Paragraph 39 “Urges States parties [sic] to the [International Convention on the Elimination of All Forms of Racial Discrimination, or ICERD] to withdraw reservations contrary to the object and purpose of the Convention and to consider withdrawing other reservations.” This is a serious problem because U.S. reservations relate to protecting the free-speech rights of Americans, which would be abridged if the ICERD had been ratified without reservation.
– Paragraph 60 “Urges States to punish violent, racist and xenophobic activities by groups that are based on neo-Nazi, neo-Fascist and other violent national ideologies.”
– Paragraph 68 “Expresses its concern over the rise in recent years of acts of incitement to hatred, which have targeted and severely affected racial and religious communities and persons belonging to racial and religious minorities, whether involving the use of print, audio-visual or electronic media or any other means, and emanating from a variety of sources.”
– Paragraph 69 “Resolves to, as stipulated in art. 20 of the [International Convention on Civil and Political Rights, or ICCPR], fully and effectively prohibit any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence and implement it through all necessary legislative, policy and judicial measures.” Again, this is a serious matter, because Article 20 of the ICCPR instructs parties to constrain freedom of opinion and expression to prohibit “Any propaganda for war” and “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” When it ratified the ICCPR, the U.S. made a specific reservation limiting Article 20 based on the First Amendment to the U.S. Constitution protecting freedom of speech and expression.
– Paragraph 99 “Calls upon States . . . to declare illegal and to prohibit all organizations based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote national, racial and religious hatred and discrimination in any form.”
No reasonable person wants to be in the position of defending intolerant speech or promoting rallies by reprehensible groups like Neo-Nazis or the Ku Klux Klan. Yet the freedom of speech and assembly mean very little unless they apply equally to everyone, even groups that are political or moral pariahs. Uncontroversial speech or organizations do not need to fear constraints on their rights. Moreover, it is a testament of a society’s adherence to these rights that such objectionable groups are tolerated.
Admittedly, the Durban II outcome document is non-binding. But it will be repeatedly referenced in U.N. documents and cited by the various treaty bodies as a definitive interpretation of the will of the international community. The U.S. should avoid signing on to even non-binding documents that undermine vital rights enshrined in the Bill of Rights.