This is the eleventh in a series of posts on last week’s OSCE “Supplementary Human Dimension” meeting in Vienna. More will be coming in the next few days. See the list of links at the bottom of this post for previous articles.
The following intervention (official pdf versions: English, German; corresponding video) was filed at Friday’s OSCE meeting in Vienna by Henrik Ræder Clausen on behalf of the International Civil Liberties Alliance (ICLA). The paper was an elaboration on Henrik’s video intervention from the previous day
The need for fewer legal tools
OSCE Supplementary Human Dimension Meeting
Rule of Law in the Promotion and Protection of Human Rights
Vienna, July 12th 2013
Session II: Effective National and International Instruments to protect human rights and prevent human rights violations: Best practices, current challenges and solutions
(This paper is an elaboration of the ICLA statement given near the end of Session II)
ICLA has followed with interest the discussions during the conference, and appreciates the great concern shown for the human rights situation throughout the OSCE area, east as well as west of Vienna. It is, however, a cause for concern that there is a distinct trend towards the creation of more tools, institutions and regulations. This not only makes law less transparent and understandable for the average citizen, it also has the potential to weaken national sovereignty and democratic legitimacy:
The OSCE Parliamentary Assembly representative (though in his private capacity) posed a very important question regarding human rights, in that he rightfully asked: “Who decides?” This is vital, for in order for these decisions to be considered just and legitimate by the general public, the institutions making such decisions need to be indisputably legitimate (and legitimized).
It is the view of ICLA that in order for human rights to be enshrined in the fabric of jurisprudence, as so appropriately called for in the Annotated Agenda, these rights need to be comprehensively understood and accepted in the national institutions, for they are endowed with democratic legitimacy. International institutions such as the OSCE, the United Nations etcetera are certainly also legitimate, but their legitimacy is of a different kind, which is not obvious to the average citizen, who also would not know how to raise issues in these institutions.
As for the instruments needed to ensure upholding of human rights in the OSCE participating States, it is the experience and opinion of ICLA that in reality we need fewer such tools, not more.
There are several reasons for this point of view, which superficially may seem surprising:
The first is that even presently, the average citizen does not understand the tools that already exist, or the tools that require investment of time and money that can be difficult to shoulder.
A second reason is that the plentitude of (generally well-intentioned tools) that exist can be contradictory, or worse, at odds with fundamental citizens’ rights, such as freedom of expression.
A third problem is that the plentitude of humans rights tools leads to legal ambiguities and uneven enforcement of the many laws, a severe problem for the legal security of citizens.
A fourth challenge is that to follow all existing laws to the letter and the full extent of their text would require the introduction of an all-out totalitarian state; obviously not an option.
A fifth complication is that the inability to extensively enforce these laws is motivating vigilante groups, usually of extreme left orientations, to enforce their understanding of the law, frequently by violent means.
One example of bad law currently on the books are the so-called “hate speech” laws, intended to protect a variety of groups — often many groups — from prejudice, stereotyping and insulting speech. These laws, unfortunately, have become part of the problem, not of the solution.
As an example, Denmark has a law of this kind, Article 266b in the Danish penal code, which stipulates that vilifying or insulting of a variety of minority groups defined by ethnicity, gender, origin, nationality or faith may not be denigrated in public. This broadly worded law constitutes a significant restriction to free speech for the Danes, as well as legal uncertainty about what is legal to say and what constitute a criminal offense. For example, take the following statement:
Continue reading →