IV. MOVING FORWARD
In November 2011, the UN's Third Committee approved a consensus resolution mostly mirroring UNHRC Resolution 16/18. (132) Human Rights First ("HRF") called the Third Committee text "a decisive break from the polarizing focus in the past on defamation of religions." (133) Speaking after its adoption, the representative from the United Arab Emirates ("UAE"), on behalf of the OIC, again emphasized that the resolution was inexorably linked to prior resolutions addressing defamation of religion. (134) Alongside this, the most recent issue of OIC Journal affirmed for its readers that incitement to religious hatred and defamation of religion are indistinguishable: "Resolution 16/18 signifies an alternative and consensual approach towards dealing with the issue of 'defamation of religions' or incitement to hatred on religious grounds with a view to addressing vital concerns of all parties on this important issue." (135)
Despite the OIC's very public and consistent assertion that defamation of religion remains valid and the organization's express intent to continue advocating its formal adoption, the UNGA moved to adopt the Third Committee's resolution one month later in December 2011, again without a vote. (136) In an effort to counter "commonly expressed concerns" (137) challenging the wisdom of the UNGA vote and the unfolding Istanbul Process, (138) HRF sought to rebut several "myths" related to U.S. engagement with Muslim states. One of these myths, according to HRF, posits that if "[t]he OIC has not abandoned the concept of defamation of religions ... why bother organizing [the Istanbul Process] if its agenda hasn't changed?" (139) Acknowledging that defamation of religion "has not vanished into thin air" and that blasphemy laws "continue to abuse human rights," HRF downplayed the sustained effort to preserve defamation of religion's legitimacy by loosely observing that "[a]t the international level ... certain leaders have not abandoned reference to defamation of religions." (140) This casual assessment neglects the scope and consistency of the OIC's multiple statements and resolutions that followed on the heels of Resolution 16/18. Moreover, it recklessly ignores the immediate connection that the OIC continues to draw between previous defamation of religion resolutions and the consensus resolutions of 2011.
Ultimately, HRF's "myth" and "reality" misses the point. While it may be fair to question the practicality of dialogue, the larger concern should be whether the Istanbul Process can realistically offer a framework for progress given the potential for manipulation outlined above, as well as the failure to decisively reject the defamation of religion chimera. We ignore these shortcomings in the international consensus at the peril of religious dissenters, religious minorities, nonbelievers, artists, academics, journalists, and others who seek to exercise their rights to free expression and freedom of religion in accordance with existing international norms. It therefore behooves governments and other communities concerned with the protection of these rights to stop dutifully validating the consensus approach without taking critical stock of the process to date. To facilitate this undertaking, and in the context of the findings presented herein, the author proposes some general suggestions below.
Resolve to Categorically Invalidate Defamation of Religion
Perhaps the single largest obstacle to genuine international progress toward combatting intolerance is the UN's failure to reject decisively the concept of defamation of religion. This failure ensures that the idea remains an albatross to any parallel or consensus process. This is particularly true when certain states, most notably OIC members, continue to invoke prior UN resolutions on this topic unchallenged as valid normative standards for protecting select religious beliefs. This overarching problem is exacerbated by the decision to sidestep the stark confrontation over defamation of religion in favor of an approach premised on inadequately defined norms that provide a sufficiently vague platform for achieving consensus. The new consensus approach has effectively shut down the debate over an underlying and unresolved fundamental dispute. And it has effectively moved the debate to an area where states are poised to reformulate the same insidious practices under the guise of the decidedly more admirable objective of combatting intolerance. Pressing the international community to implement norms for combatting intolerance under these circumstances potentially risks accommodating the same goals sought by defamation of religion.
More troubling, the consensus approach complicates the task of identifying problematic practices because it shifts the debate from one characterized by distinct bright lines to a more nuanced and subjective framework that leaves greater maneuvering room for justifying discrimination and limitations of rights. This loss of clarity is problematic not only from a rights perspective, but from an engagement perspective as well. Saying that international law prohibits protecting religious beliefs from insult is a more straightforward proposition than saying international law rejects a national legislature or judiciary's interpretation of what constitutes incitement, or for that matter, imminent violence. Thus, identifying and countering instances of abusive implementation of measures intended to combat intolerance becomes decidedly more complicated. This potential fallout underscores why the Istanbul Process augurs such little promise and in fact may further facilitate human rights abuses.
To counteract this deleterious path, progress on the Istanbul Process must be monitored closely. Discussions regarding the scope of freedom of expression and other fundamental rights necessarily dictate transparency. (141) At a minimum, this requires opening future proceedings to outside participation and scrutiny from NGOs, journalists, academics and other concerned parties. Based on whatever progress may be achieved for identifying means of implementing Resolution 16/18 through the Istanbul Process, any future UN resolution enshrining such norms should include operative language clearly invalidating previous defamation of religion resolutions as well as any other attempts to introduce similar norms intended to shield religious beliefs from criticism. (142) Admittedly, the extent to which this is a feasible option is certainly open to debate. Nevertheless, rejection of the defamation of religion concept must be a prerequisite to any further advancement because it affords the only authoritative means by which the specter of defamation of religion can be prevented from contaminating genuine efforts aimed at combatting incitement. (143) To this end, there are several steps that can be taken that build on earlier successes in lowering the numerical majority voting in favor of defamation of religion resolutions.
Assertive Engagement on Constitutional and Legislative Reform
The Arab Spring revolutions can figure prominently in engaging individual OIC member states. While many of these new governments are emerging as decidedly Islamic in orientation, they are also entering a world where human rights commitments are increasingly important. Any extension of diplomatic and political support and recognition, trade benefits, and aid (in the form of financial and other assistance) should require the endorsement and adoption of international human rights standards, not only in new constitutions, but also in legislative reform that the post-revolution era necessitates. Therefore, in addition to monitoring constitutional and legislative change in countries in transition, the international community should create opportunities for concrete engagement, particularly regarding how these new governments intend to address the challenge of combatting intolerance, as well as enshrine and uphold international human rights.
International recognition of these new governments and endorsements of legitimacy should not be extended as a matter of course. A useful starting point is the EU's decision to condition diplomatic recognition of post-Soviet states inter alia on the provision of legal "guarantees for the rights of ethnic and national groups and minorities" (144) Yet, already the international community appears poised to place inadequate emphasis on the importance of concretizing rights in emerging constitutional texts. (145) For example, Libya's Draft Constitutional Charter for the Transitional Stage, provides that "Islam is the Religion of the State and the principal source of legislation is Islamic Jurisprudence (Sharia)." (146) While the maintenance of an established state religion is not per se incompatible with international human rights law, such official recognition must not result in any impairment of recognized rights, "nor in any discrimination against adherents to other religions or nonbelievers." (147) With this in mind, the text fails to elaborate on key questions including whose interpretation of sharia shall govern during the transitional period, to whom shall sharia be applied, or what will occur in the event of conflicts between sharia and international law. To this end, Article 7, which provides that "[h]uman rights and his basic freedoms shall be respected .... [and that] [t]he state shall endeavor to join the international and regional declarations and charters which protect such rights and freedoms," (148) leaves significant room for improvement.
Similarly, statements of western officials do not go far enough in establishing a minimum expectation for enshrining international human rights norms in emerging constitutions and state practice. For example, in July 2011 Secretary of State Clinton said, "In Egypt and Tunisia, we hope to see minorities brought into the process of drafting a new constitution and given a seat at...