International and New Zealand Law and Recommendations

This page summarises the development of International Law and International Recommendations pertaining to Freedom of Thought, Conscience and Religion from the promulgation of the United Nations Universal Declaration of Human Rights in 1948 to the present with particular reference to Blasphemy Law. The development of New Zealand Human Rights Law is included.

Reports and recommendations are shown in chronological order with numerous links to the original documents. Click on highlighted text to follow the links to the original documents.

A growing number of countries have moved to repeal or abolish their blasphemy laws. Read more.

Page Contents:

  • Summary
  • United Nations Universal Declaration of Human Rights (1948)
  • European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
  • International Covenant on Civil and Political Rights (1976)
  • The European Court of Human Rights (from 1976)
  • United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981)
  • The Law Commission UK (1985)
  • New Zealand Bill of Rights Act 1990
  • New Zealand Human Rights Act 1993
  • New South Wales Law Reform Commission (1994)
  • Parliamentary Assembly of the Council of Europe
    – council Resolution 1510 (2006) & Recommendation 1805 (2007)
  • UN Special Rapporteur on Freedom of Religion (2007)
  • The Venice Commission (2009)
  • Durban Review Conference, Geneva (2009)
  • UN Human Rights Council – Resolution 16/18 (2011)
  • General comment 34 of the Human Rights Committee on the International Covenant on Civil and Political Rights (2011)
  • Rabat Plan of Action (2012)
  • Report of the UN Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt  (2012 & 2013)
  • European Guidelines on Freedom of Religion or Belief (2013)
  • Report of the UN Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt  (2015)

Summary

International experts and bodies have consistently found that blasphemy laws conflict with Freedom of Religion and Belief and Freedom of Expression, and with international law. Specifically, blasphemy laws conflict with:

  • Articles 18 and 19 of the United Nations Declaration of Human Rights 1948,
  • Articles 18 and 19 of the International Covenant on Civil and Political Rights 1976, binding on signatory countries,
  • Articles 1, 2 and 4 of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981,
  • and other international documents promoting freedom of religion and expression.

Additionally, blasphemy laws conflict with laws in individual countries promoting freedom of religion and expression. In New Zealand section 123 of the Crimes Act 1961 conflicts with section 13, 14, and 15 of the New Zealand Bill of Rights Act 1990 and section 21 of the New Zealand Human Rights Act 1993.

In 1985 the Law Commission in England investigated blasphemy laws and the possibility of extending the existing common law to include other religions but concluded that the blasphemy laws were flawed and could not be extended, and that the blasphemy laws were not needed. After considering all factors, the Law Commission recommended abolition of the blasphemy laws without replacement. The 1987 fatwa against Salman Rushdie produced further interest in blasphemy law prompting the New South Wales Law Reform Commission to look at the question. This commission concluded that the existing law was unnecessary and discriminatory and could not be extended or corrected so recommended abolition.

Following the publication of controversial cartoons in Denmark in 2005, other international bodies and experts investigated international law and consistently found that blasphemy laws were discriminatory and unnecessary, did nothing to promote public order and may instead incite hatred and violence, and recommended that all blasphemy laws in individual countries be repealed and abolished and not reintroduced. These bodies include the European Court of Human Rights, the Parliamentary Assembly of the Council of Europe in 2006-7 representing 47 member states and 820 million people, the Venice Commission advising the Council of Europe in 2009, and the UN Rabat Plan of Action in 2013.

Elimination of all blasphemy laws for the same reasons was supported by UN Special Rapporteur on Freedom of Religion in 2007 and the UN Special Rapporteur on Freedom of Religion or Belief in 2012, 2013, and again with more emphasis in 2015.

From 1999 until 2011 the 57 member Organisation of Islamic Cooperation (OIC) pursued a highly divisive proposal to impose de facto blasphemy laws, under the guise of “defamation of religion”, on all countries. Following the passing of the Human Rights Council resolution 16/18 in 2011, the OIC abandoned this proposal and stated its support for Freedom of Religion and support for laws against inciting hatred and violence and damage to property. This brought the OIC into line with the rest of the world.

Extracts from various international documents, and New Zealand law appear below. They show how the law has developed over time, why blasphemy laws are regarded as contrary to international law,  and a consistent and overwhelming pattern recommending the repeal and abolition of all blasphemy laws. Links have been provided to the original documents.


Extracts


United Nations Universal Declaration of Human Rights (1948)

declaration

On 10 December 1948, New Zealand was one of the 48 nations that voted to adopt the United Nations Universal Declaration of Human Rights. Two articles are of specific interest.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.


European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)

Also known as the European Convention on Human RightsLogo_of_the_Congress_of_the_Council_of_Europe-2

ARTICLE 9

Freedom of thought, conscience and religion

  1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
  2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 10

Freedom of expression

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

International Covenant on Civil and Political Rights (1976)

covenantThe International Covenant on Civil and Political Rights (ICPPR) is binding on signatory countries. It was ratified by New Zealand in December 1976.

Article 18

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    (a) For respect of the rights or reputations of others;
    (b) For the protection of national security or of public order (ordre public), or of public health or morals.

This Covenant binds signatory countries including New Zealand.

General Comment 34 (2011)  explains why prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with this Covenant. See below.


The European Court of Human Rights (from 1976)

courtIn 1976, the European Court of Human Rights stated that: Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

The Court has held this position and repeated it in various judgments since 1976. Statements of this nature abound in the jurisprudence of courts and other judicial bodies around the world.

(See UNESCO comment and Oral and written Evidence, by Great Britain. Parliament. Joint Committee on Human Rights.)

Handyside v. United Kingdom, 7 December 1976, 1 EHRR 737, para. 49.


United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981)

Article 1UN - download

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Article 2

  1. No one shall be subject to discrimination by any State, institution, group of persons, or person on grounds of religion or other beliefs.
  2. For the purposes of the present Declaration, the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

Article 4

  1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
  2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.          A/RES/36/55

The Law Commission UK (1985lawcom-crown

Looking at the question of offences against religion the commission said in their conclusion:

Blasphemy and blasphemous libel at common law provide protection only for the Christian religion and the tenets of the Church of England. Where members of society have a multiplicity of faiths or none at all, it is invidious to single out that religion, albeit in England the established religion, for protection. For this reason and for other reasons earlier summarised, the common law cannot remain as it is.

There is no one agreed definition of blasphemy and blasphemous libel; their constituent elements have been subject to change through the decisions of the courts over three centuries of history. It would scarcely be practicable, even if it thought desirable, to amend the common law definition by statute.

It is now clear that none of the arguments for retaining a law of blasphemy are sufficiently strong to support this view and each of them is outweighed by other considerations which persuade us that a law of blasphemy is not a necessary part of a criminal code. Moreover, we have no doubt that any replacement offence which might be devised would in practice prove to be unacceptably wide in ambit.

Our conclusion is therefore that the common law offences of blasphemy and blasphemous libel should be abolished without replacement.


New Zealand Bill of Rights Act 1990

coat

 4    Other enactments not affected

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

(a)   hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b)   decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

5    Justified limitations

Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6   Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

13   Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

14  Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

15   Manifestation of religion and belief

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

The New Zealand Court of Appeal has described the right to freedom of expression as “being of the highest importance in a modern democracy” and  “as wide as human thought and imagination”. (Hosking v Runting [2005] and Moonen v Film and Literature Board of Review [2000].)


New Zealand Human Rights Act 1993

coat21 Prohibited grounds of discrimination

(1)    For the purposes of this Act, the prohibited grounds of discrimination are—

(c) religious belief:
(d) ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions:


New South Wales Law Reform Commission (1994)

NSW - imagesIn September 1991, the Attorney General of New South Wales asked the NSW Law Reform Commission to inquire into and report on whether the law relating to the offence of blasphemy was adequate and appropriate to current conditions and any related matter. The Commissions report 74 in 1994 had the following summary, conclusion, and recommendation.

Summary

4.32 There are both legal and policy concerns with preserving the existing common law offence of blasphemy.

4.33 Public order is clearly capable of being preserved in New South Wales without the offence of blasphemy, which has not been utilised this century. The general criminal law, including offences relating to incitement and offensive behaviour, covers this area adequately. Further, it is inappropriate for the criminal law to be used to protect an individual’s religious convictions in a secular society, particularly where the adherents of only one faith are protected. The offence curtails freedom of speech, without a sufficiently compelling countervailing right. Whether the offence is capable of adequately educating the community to respect the beliefs of others must be questioned. Finally, it is unclear why religious beliefs merit special protection whereas other beliefs do not.

4.34 In addition to the policy concerns with the offence of blasphemy, there are problems with the particular offence of blasphemy which is made part of the law of this state by s 574 of the Crimes Act 1900 (NSW) and the operation of the common law.35 In particular:

  • there is considerable uncertainty about the elements (and indeed the very existence) of the offence;
  • the scope of the existing offence is limited to attacks on the Church of England and related Christian denominations;
  • as a common law offence, blasphemy would have to be tried upon indictment in a superior court, with a judge and jury; and
  • as a common law offence, sentencing is “at large” – that is, without any statutory limits or guidance.

Conclusion

4.81 The Commission favours the abolition of blasphemy, and considers there is no need for a substituted or replacement offence. Abolition of the offence without replacement raises the issue of the need to provide adequate legal protection for religions and religious beliefs. The Salman Rushdie affair in England demonstrated the depth of the religious feelings in parts of British Muslim communities. However, the public demonstration of those feelings also created hostility towards Muslim communities from many people in the wider community.101

4.82 In Australia, the Gulf War stirred up hatred and hostility against Muslims. However, the way to address such matters is not, in the Commission’s view, by retention or expansion of the blasphemy laws. Rather they should be addressed in the context of determining whether conduct which amounts to the incitement of hatred or violence against a person on the ground of religion should be prohibited. The Commission’s review of the Anti-Discrimination Act 1977 (NSW) is the appropriate forum to consider this matter. The policy concerns which underpin the anti-discrimination legislation will inform such a discussion, and thus the issues can be dealt with in a more cohesive and comprehensive fashion.

Recommendation:

The common law of blasphemy should be abolished.


Parliamentary Assembly of the Council of Europe

councilResolution 1510 (2006)

Freedom of expression and respect for religious beliefs   

  1. Freedom of thought and freedom of expression in a democratic society must, however, permit open debate on matters relating to religion and beliefs. The Assembly recalls in this regard its Recommendation 1396 (1999) on religion and democracy. Modern democratic societies are made up of individuals of different creeds and beliefs. Attacks on individuals on grounds of their religion or race cannot be permitted but blasphemy laws should not be used to curtail freedom of expression and thought.
  1. Blasphemy has a long history. The Assembly recalls that laws punishing blasphemy and criticism of religious practices and dogmas have often had a negative impact on scientific and social progress. The situation started changing with the Enlightenment, and progressed further towards secularisation. Modern democratic societies tend to be secular and more concerned with individual freedoms. The recent debate about the Danish cartoons raised the question of these two perceptions.
  1. The Assembly resolves to revert to this issue on the basis of a report on legislation relating to blasphemy, religious insults and hate speech against persons on grounds of their religion, after taking stock of the different approaches in Europe, including the application of the European Convention on Human Rights, the reports and recommendations of the European Commission against Racism and Intolerance (ECRI) and of the European Commission for Democracy through Law (the Venice Commission), and the reports of the Council of Europe Commissioner for Human Rights.

Recommendation 1805 (2007)

Blasphemy, religious insults and hate speech against persons on grounds of their religion

  1. With regard to blasphemy, religious insults and hate speech against persons on the grounds of their religion, the state is responsible for determining what should count as criminal offences within the limits imposed by the case law of the European Court of Human Rights. In this connection, the Assembly considers that blasphemy, as an insult to a religion, should not be deemed a criminal offence. A distinction should be made between matters relating to moral conscience and those relating to what is lawful, matters which belong to the public domain, and those which belong to the private sphere. Even though today prosecutions in this respect are rare in member states, they are legion in other countries of the world.
  1.  The Assembly is aware that, in the past, national law and practice concerning blasphemy and other religious offences often reflected the dominant position of particular religions in individual states. In view of the greater diversity of religious beliefs in Europe and the democratic principle of the separation of state and religion, blasphemy laws should be reviewed by the governments and parliaments of the member states.
  1. The Assembly notes that under the International Convention on the Elimination of All Forms of Racial Discrimination of the United Nations, signatory parties are obliged to condemn discrimination and take effective measures against it. All member states signatory to this convention must ensure that members of a particular religion are neither privileged nor disadvantaged under blasphemy laws and related offences.
  1. The Assembly recommends that the Committee of Ministers:

17.1. take note of Resolution 1510 (2006) on freedom of expression and respect for religious beliefs together with this recommendation and forward both texts to the relevant national ministries and authorities;
17.2. ensure that national law and practice:
17.2.4. are reviewed in order to decriminalise blasphemy as an insult to a religion.


UN Special Rapporteur on Freedom of Religion (2007)

jahangirIn her last report in July 2007, the UN Special Rapporteur on Freedom of Religion or Belief, Ms Asma Jahangir made interesting observations on blasphemy laws. Ms Jahangir agreed with the Parliamentary Assembly of the Council of Europe, which recommended in 2007 that blasphemy as an insult to religion should be decriminalised.

She deplored the fact that blasphemy laws are used in a discriminatory and disproportionate manner to punish members of religious minorities, dissenting believers and non-theists or atheists, and to censure all inter-religious and intra-religious criticism.     (Quoted from the Venice Commission (2009) report below.)

In a report on Elimination of all forms of religious intolerance in August 2007 she reiterated that criminalizing “defamation of religions” can be counterproductive, since it may create an atmosphere of intolerance and fear and may even increase the chances of a backlash. Accusations of “defamation of religions” might stifle legitimate criticism or even research on practices and laws appearing to be in violation of human rights but that are, or are at least perceived to be, sanctioned by religion.

She concluded that Blasphemy laws and the concept of “defamation of religions” can be counterproductive since they may create an atmosphere of intolerance or fear and ultimately might establish a normative hierarchy of beliefs.     A/62/280


The Venice Commission (2009)

In 2009, The VeniVenice Commissionce Commission in a report titled Blasphemy, insult and hatred: finding answers in a democratic society to the Council of Europe recommended that member states should review and decimalise blasphemy laws, and that all such laws be abolished and not reintroduced.

In the report they made the following observations regarding blasphemy:

  1. In its Recommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion, the Parliamentary Assembly of the Council of Europe considers that “national law should only penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence”.
  1. Blasphemy is an offence in only a minority of [European] member states (Austria, Denmark, Finland, Greece, Italy, Liechtenstein, the Netherlands, San Marino). It must be noted in this context that there is no single definition of “blasphemy”.
  1. The offence of blasphemy is, nowadays, rarely prosecuted in European states.
  1. The Parliamentary Assembly – noting that, in the past, national law and practice concerning blasphemy and other religious offences often reflected the dominant position of particular religions in individual states – has considered that “in view of the greater diversity of religious beliefs in Europe and the democratic principle of the separation of state and religion,blasphemy laws should be reviewed by member states and parliaments” and that “blasphemy, as an insult to a religion, should not be deemed a criminal offence. A distinction should be made between matters relating to moral conscience and those relating to what is lawful, and between matters which belong to the public domain and those which belong to the private sphere.”
  2. The commission agrees with this view.
  3. The commission does not consider it necessary or desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component. Neither does the commission consider it essential to impose criminal sanctions for an insult based on belonging to a particular religion. If a statement or work of art does not qualify as incitement to hatred, then it should not be the object of criminal sanctions.
  1. It is true that the boundaries between insult to religious feelings (even blasphemy) and hate speech are easily blurred, so that the dividing line, in an insulting speech, between the expression of ideas and the incitement to hatred is often difficult to identify. This problem, however, should be solved through an appropriate interpretation of the notion of incitement to hatred rather than through the punishment of insult to religious feelings.

5.  Conclusions

  1. The Venice Commission has examined the European legislation on blasphemy, religious insult and incitement to religious hatred, and has extensively reflected on this matter, including at the international round-table conference on Art and Sacred Beliefs: from Collision to Co-existence, which was held in Athens on 31 January and 1 February 2008. The commission has reached the following conclusions.
  2. As concerns the question of whether or not there is a need for specific supplementary legislation in the area of blasphemy, religious insult and incitement to religious hatred, the commission finds:

b.  That it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component.
c.  That the offence of blasphemy should be abolished (which is already the case in most European states) and should not be reintroduced.

  1. As concerns the question of to what extent criminal legislation is adequate and/or effective for the purpose of bringing about the appropriate balance between the right to freedom of expression and the right to respect for one’s beliefs, the commission reiterates that, in its view, criminal sanctions are only appropriate in respect of incitement to hatred (unless public order offences are appropriate).
  2. Notwithstanding the difficulties with enforcement of criminal legislation in this area, there is a high symbolic value in the pan-European introduction of criminal sanctions against incitement to hatred. It gives strong signals to all parts of society and to all societies that an effective democracy cannot bear behaviours and acts that undermine its core values: pluralism, tolerance, respect for human rights and non-discrimination. The application of legislation against incitement to hatred must be done in a non-discriminatory manner.
  3. In the commission’s view, instead, criminal sanctions are inappropriate in respect of insult to religious feelings and, even more so, in respect of blasphemy.
  4. Finally, as concerns the question of whether there are alternative options to criminal sanctions, the commission recalls that any legal system provides for other courses of action, which can be used in cases other than incitement to hatred.

Durban Review Conference, Geneva (2009)

durbanIn a joint statement during the Durban Review Conference, Geneva 2009, three United Nations Special Rapporteurs – respectively on freedom of religion or belief, on the right to freedom of opinion and expression and on contemporary forms of racism, racial discrimination, xenophobia and related intolerance – underlined that:

“(…) the difficulties in providing an objective definition of the term “defamation of religions” at the international level make the whole concept open to abuse. At the national level, domestic blasphemy laws can prove counter-productive, since this could result in the de facto censure of all inter-religious and intra-religious criticism. Many of these laws afford different levels of protection to different religions and have often proved to be applied in a discriminatory manner. There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of laws that are fairly neutral.”


UN Human Rights Council – Resolution 16/18 (2011)

UN - downloadOn 24 March 2011, in a very significant move, the United Nations Human Rights Council unanimously adopted Resolution 16/18. For 12 years, from 1999 until 2010, the Organisation of Islamic Cooperation (OIC) had pursued a highly divisive attempt to use the United Nations to impose an international legal norm restricting speech that defamed religions, particularly Islam. This had been resisted by non-Islamic countries and over successive years support for the OIC proposal had fallen as countries became aware of alternative approaches. Human Rights Resolution 16/18 introduced a new consensus approach that focuses on positive measures to counter religious intolerance and to protect individuals from discrimination or violence, rather than criminalising expression. 

With the passing of Resolution 16/18, the Organisation of Islamic States agreed to support Freedom of Expression, and withdrew its support for the  “defamation of religion” approach. Freedom House reported in 2012 that “In recent public comments, both the OIC Secretary General, Ekmeleddin Ihsanoglu, and Permanent Representative to the United Nations, Ufuk Gokun, stated that continued support of UN resolution 16/18 is the best way to combat religious intolerance and discrimination.  These statements reaffirmed the 57-member organization’s stated commitment to freedom of thought and expression by upholding the resolution rather than by pursuing an international ban through the United Nations.”

See: 12 April 2011 Resolution 16/18 Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief  A/HRC/RES/16/18

See: 15 July 2011 the Joint Statement on Combating Intolerance, Discrimination and Violence and US Department of State.

See: 19 October 2012 Freedom House  – OIC Rebuke of “Defamation of Religions” Welcomed.

Nevertheless, the UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM (USCIRF) reorted in 2015 that it:

remains concerned that some OIC members continue to support a global anti-blasphemy law. Many OIC member states continue to have and enforce repressive domestic blasphemy and religious defamation laws. These laws result in gross human rights abuses and exacerbate religious intolerance, discrimination, and violence, the very problems that the OIC claims it is trying to address. In addition, some OIC countries continue to refer publicly to the defamation-of-religions concept and call for international laws against it, including in the context of the “Istanbul Process,” a series of international meetings launched in 2011 to discuss the implementation of the Resolution 16/18 approach. The Arab League also has been considering a regional model law against the defamation of religions. [see page 18]


General comment 34 of the Human Rights Committee on the International Covenant on Civil and Political Rights (2011)

UN - download

  1. Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society…
  1. States parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression.
  2. … Since any restriction on freedom of expression constitutes a serious curtailment of human rights, it is not compatible with the Covenant for a restriction to be enshrined in traditional, religious or other such customary law.
  1. Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except [if strictly limited to curtailing incitement to “discrimination, hostility or violence”]. … it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith. CCPR/C/GC/34

Rabat Plan of Action (2012)

on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (2012)

rabatConclusions and recommendations emanating from the four regional expert workshops organised by OHCHR, in 2011, and adopted by experts in Rabat, Morocco on 5 October 2012.

The plan states:

  1. It is often purported that freedom of expression and freedom of religion or belief are in a tense relationship or can even be contradictory. Instead they are mutually dependent and reinforcing. The freedom to exercise or not one’s religion or belief cannot exist if the freedom of expression is not respected as free public discourse depends on respect for the diversity of deep convictions which people may have. Likewise, freedom of expression is essential to creating an environment in which a constructive discussion about religious matters could be held. Indeed, free and critical thinking in open debate is the soundest way to probe whether religious interpretations adhere to, or rather distort the original values that underpin religious belief.
  1. At the international level, the prohibition of incitement to hatred is clearly established in article 20 ICCPR and article 4 ICERD. In its General Comment 34, the Human Rights Committee stresses that “[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26 of the ICCPR. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.”
  1. At the national level, blasphemy laws are counter-productive, since they may result in the de facto censure of all inter-religious/belief and intra-religious/belief dialogue, debate, and also criticism, most of which could be constructive, healthy and needed. In addition, many of these blasphemy laws afford different levels of protection to different religions and have often proved to be applied in a discriminatory manner. There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of various laws that use a neutral language. Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule.

Recommendations

  •  States that have blasphemy laws should repeal these as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion.

Adopted 5 October 2012


Report of the UN Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt  (2013 & 2014)

bielefeldt2013 – A/HRC/22/51

States should repeal any criminal law provisions that penalize apostasy, blasphemy and proselytism, as they may prevent persons belonging to religious or belief minorities from fully enjoying their freedom of religion or belief.”      A/HRC/22/51

2014 – A/HRC/25/58

States should repeal blasphemy laws, which typically have a stifling effect on open dialogue and public discourse, often particularly affecting persons belonging to religious minorities.”

More detail on these reports are available here: Reports of UN Special Rapporteurs.


European Guidelines on Freedom of Religion or Belief (2013)

europe32. a. iv … Freedom of expression applies online as well as offline[18]… [Instead of resorting to violence or prosecution…] “New forms of media as well as information and communications technology provide those who feel offended by criticism or rejection of their religion or belief with the tools to instantly exercise their right of reply.

In any case, the EU will recall, when appropriate, that the right to freedom of religion or belief, as enshrined in relevant international standards, does not include the right to have a religion or a belief that is free from criticism or ridicule[19].

32. b. When faced with restrictions to freedom of expression in the name of religion or belief, the EU will:

  • Recall that restrictions to freedom of expression shall only be such as are prescribed by law and are necessary to safeguard the rights or reputation of others, or for the protection of national security or of public order (ordre public) or of public health or morals,[20] and that no national security restriction is permissible for freedom of religion and belief[21]
  • Defend the fact that sharing information about religions or beliefs and engaging in persuasion on these matters is protected under international law, provided that such persuasion is neither coercive nor impairs the freedom of others.
  • Recall at all appropriate occasions that laws that criminalize blasphemy restrict expression concerning religious or other beliefs; that they are often applied so as to persecute, mistreat, or intimidate persons belonging to religious or other minorities, and that they can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief; and recommend the decriminalisation of such offences.
  • Forcefully advocate against the use of the death penalty, physical punishment, or deprivation of liberty as penalties for blasphemy.
  • Recall that international human rights law protects individuals, not Religion or Belief per se. Protecting a religion or belief may not be used to justify or condone a restriction or violation of a human right exercised by individuals alone or in community with others.

___________________

18 See UN Human Rights Council resolution 20/8.
19 See paragraph 19 of the conclusions of the Rabat Plan of Action on incitement to hatred, 5 October 2012.
20 Article 19.3 ICCPR.
21 Article 18.3 ICCPR. See also General Comments no. 22 and 34.


Report of the UN Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt  (2015)

2015 – A/HRC/28/66

I.    Introductionbielefeldt

2. In its resolution 25/12, the Human Rights Council condemned “all forms of violence, intolerance and discrimination based on or in the name of religion or belief, and violations of the freedom of thought, conscience, religion or belief, as well as any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual or electronic media or any other means”. Against that background, the present report, in its section II, focuses on preventing violence committed in the name of religion and, in its section III, includes specific recommendations addressed to all relevant stakeholders.

II.    Preventing violence committed in the name of religion

7. … violence in the name of religion also affects followers of the very same religion, possibly also from a majority religion, in whose name such acts are perpetrated. Voices of moderation or critics who actively oppose the abuse of their religion for the justification of violence bear an increased risk of being accused of “betrayal” or “blasphemy” and having retaliatory penalties inflicted upon themselves.

Root causes, factors and political circumstances – Policies of exclusion 

35. … A factor that further increases the likelihood of harassment is anti-blasphemy laws or anti-proselytism laws, which may threaten criminal punishments for vaguely circumscribed “offences”. Countless examples demonstrate that such laws disproportionately affect minorities. Meanwhile, they may encourage self-appointed vigilante groups to commit acts of violent aggression, frequently with direct or indirect support by law enforcement agencies.

Obligations and responsibilities under international law  – Overarching obligations of the State (Obligations to respect)

42. … Moreover, the State should repeal anti-blasphemy laws, anti-conversion laws and criminal laws that discriminate against certain people according to their religious affiliations or beliefs or criminalize their “dissident” practices. Apart from further increasing the vulnerability of marginalized groups or individuals, these laws may give a pretext to vigilante groups and other perpetrators of hatred for intimidating people and committing acts of violence.

43. In order to operate as a credible guarantor of freedom of religion or belief for everyone, the State should not identify itself exclusively with one particular religion or belief (or one particular type of religions) at the expense of equal treatment of the followers of other faiths [or beliefs].

III.    Conclusions and recommendations – Recommendations to different State institutions 

94.  States should repeal anti-blasphemy laws, anti-conversion laws and any other discriminatory criminal law provisions, including those based on religious laws.

More detail on this report is available here: Reports of UN Special Rapporteurs.