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American pundits think Europe has just introduced a blasphemy law through the back door. They’re wrong.

- October 29, 2018
Canvassers promote a yes vote for the referendum on a blasphemy law in Dublin on Oct. 18. (Clodagh Kilcoyne/Reuters)

Ireland’s voters have just voted to remove a long-standing blasphemy law from their constitution. Just two days before, the European Court of Human Rights upheld an Austrian court’s conviction of a woman for publicly suggesting that the prophet Muhammad had pedophilic tendencies. The ruling has been criticized by many people, ranging from centrists to people on the extreme right who argue that the court is introducing “a blasphemy law by the back door.”  The latter claim that in Europe “free speech bows to sharia,” providing what conservative writer Eli Lake calls a cautionary tale for the United States.

These commentators do not understand why the court ruled the way it did. This is not a story about blasphemy laws being imposed by an international court on unwilling states. It is very nearly the opposite. As Ireland’s recent constitutional change illustrates, many European countries, including Austria, have blasphemy laws on their domestic books. The question then is: If states have such laws, should they be overruled by an international court? The human rights court has become extremely reluctant to interfere with state laws on sensitive domestic issues.

For example, the court used very similar reasoning as it did in the Austrian case to uphold France’s ban on women wearing the burqa, a ruling seemingly contradicted by the U.N. Human Rights Committee last week. Political commentators who might have applauded the court’s restraint on France’s ban on Islamic head coverings wanted it to be more activist on the Austrian case.

The court is politically embattled

The European Court of Human Rights hears cases from people from 47 countries who claim that their government has violated one or more articles of the European Convention on Human Rights. The convention contains a wide array of rights, including the freedom of religion (Article 9) and the freedom of expression (Article 10).

The court evaluates thousands of extremely sensitive issues that often draw considerable media attention. Sometimes, these judgments trigger strong responses, especially on sensitive issues involving identity and religion.

For example, in 2009 the court ruled that an Italian law that mandates crucifixes in public classrooms constitutes a violation of the freedom of religion. The outcry was immediate. Then-Prime Minister Silvio Berlusconi called it an attempt to “deny Europe’s Christian roots. This is not acceptable for us Italians.” The populist right wing Northern League, not necessarily a party associated with staunch Catholic piety, used its control of local government in some parts of Italy to display crucifixes in the main squares of villages. The ruling also faced unprecedented opposition from other states that joined in third-party briefs. In 2011, the court’s Grand Chamber reversed the unanimous chamber judgment by a 15-to-2 vote.

The court has increasingly come under pressure, especially from right-wing governments in established democracies. British Prime Minister Theresa May has repeatedly stated that she wants Britain to leave the court. Britain led a reform effort aimed at “clipping the Court’s wings.” These continued reform efforts, most recently spearheaded by the Danish government, have not resulted in major institutional reforms. But they have sent a consistent message to the judges: Be careful when you second-guess how established democracies implement human rights provisions.

This backlash has consequences

In a new paper, Oyvind Stiansen and I find that the judges have received that message. The court has become much less likely to find violations in cases against established democracies, especially in cases involving its most vocal opponent, the United Kingdom. The court has a strong interest in preserving the support of established democracies and is thus deferring to their domestic judicial and political process more often.

The Austrian blasphemy judgment is peppered with deferential statements. It argues that “it is not the Court’s task to take the place of the national authorities.” That “the Court would require strong reasons to substitute its view for that of the domestic courts.” Furthermore, it states that “the instant case is of a particularly sensitive nature, and that the [potential] effects of the impugned statements, to a certain degree, depend on the situation in the respective country where the statements were made, at the time and in the context they were made.” Finally, the ruling notes that “the Court therefore considers that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country.”

To be clear, the point is not that the judgment was necessarily legally or morally correct. Instead it is that, contrary to a large body of U.S. commentary, the main lesson from this judgment is not that the court is handing a victory to Islamism and undermining free speech. Instead, the ruling provides further evidence that the court thinks that it can no longer manage these highly sensitive issues at the European level. The court is essentially saying exactly what populist opponents of the court want: that domestic courts, legislatures and political systems should be primarily responsible for how blasphemy and free speech are balanced, just as Irish voters showed Saturday.

Erik Voeten is the Peter F. Krogh professor of geopolitics and justice in world affairs at Georgetown University’s Edmund A. Walsh School of Foreign Service.