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Freedom of Religion Or Belief and the Law: Current Dilemmas and Lessons Learned

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Freedom of Religion Or Belief and the Law: Current Dilemmas and Lessons Learned Freedom oF religion or belieF and the law: CURRENT DILEMMAS AND LESSONS LEARNED International Development Law Organization FREEDOM OF RELIGION OR BELIEF AND THE LAW: CURRENT DILEMMAS AND LESSONS LEARNED The International Development Law Organization (IDLO) is an intergovernmental organization devoted to empowering people and enabling governments to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity. Front cover image: Natalie Aldern 02 IDLO FOREWORD are rising as large-scale migration and the rule of law. What is required is refugee flows force people of different adherence to the rule of law – not the rule faiths - or of no faith – to live in close by law. What is needed is equity, justice proximity. Add to this today’s fast and accountability on the basis of equal changing, volatile communications protection. landscape where the power of social IDLO’s report, Freedom of Religion or media and a fiercely competitive 24-hour Belief and the Law is a modest but news cycle are being harnessed by important contribution to the debate unscrupulous political leaders to make about religious liberty, human rights and intolerant and inflammatory statements the rule of law. The report analyzes the irene Khan about religious minorities. international legal framework and tests it IDLO Director-General In certain countries, discriminatory against a number of contemporary laws and policies are deliberately challenges faced by governments in targeting and shutting out religious secular as well as religious states. It minorities, politically, economically and proposes a broad policy path for socially. In some parts of the world social governments to build fairer, more tensions are spilling into violent conflict inclusive and just societies, where among different religious groups, while in freedom of religion and thought is others innocent civilians are being respected and protected alongside other he right to practice one’s deliberately persecuted, attacked and fundamental human rights. deeply-held beliefs is a defining killed in the name of religion. The basic message of the report is that issue of our time. Freedom of The law is not an objective arbiter in freedom of religion or belief can only be treligion is enshrined in all the many such situations. Religious identity safeguarded and protected – from others major human rights treaties, and is key and national security are becoming and from itself – when underpinned by a to building a secure and prosperous intertwined in ways that are endangering strong legal framework that promotes society. It is among the few human human rights. Far too often laws are diversity. Laws, policies and institutions rights that are fully protected by being used to restrict freedom of religion must proactively advance human rights international law even in times of war. or belief and justify discrimination and peaceful co-existence among all As the world faces a period of political against minorities. Women are too often people. Agents of religious bigotry must turmoil and economic uncertainty, rising the victims of such legal discrimination, be held accountable for their actions. inequalities and social discontent, denied the right to equality in the name Discrimination towards religious freedom of religion or belief is coming of religious laws, or the right to practice minorities, or acts of vandalism on their under pressure from various sources and their religious customs, including how places of worship should not be tolerated. for a multitude of reasons. they dress, in the name of secularism. The report goes beyond fair laws and Democratic governments are grappling At the same time experience across effective institutions to also make the with the problem of how to safeguard the world shows that laws and policies point that governments have an religious freedom while at the same time that promote diversity over uniformity obligation to create the space for more protecting other rights and interests, and advance mutual respect of difference open debate and discussion among including free speech and gender are better able to protect human rights people and for religious practices and equality. In many liberal democracies, and create more stable societies. traditions to evolve over time. freedom of religion and freedom of Any effort to accommodate competing As the report notes, freedom of expression are perceived as being in rights and freedoms in an increasingly religion is not a zero sum game where opposition to each other. Secular complex world must be grounded in a one person’s win is another person’s loss. expressions are challenging religious strong commitment to international We must all work together to build more sensitivities. What is blasphemy and norms and subject to review by resilient and secure societies based on defamation of religion to some is seen as competent justice institutions. The policy tolerance, compassion and mutual free speech to others. dilemmas surrounding the issue of respect for all. At the level of communities, tensions freedom of religion or belief can best be between one religious group and another resolved by upholding the principles of rome, november 2016 03 FREEDOM OF RELIGION OR BELIEF AND THE LAW: CURRENT DILEMMAS AND LESSONS LEARNED FOREWORD the overall level of freedom, non- religion has increased. Italy has discrimination and respect of diversity provided a concrete contribution, by that exists in a society. And by promoting several initiatives, involving acknowledging freedom of religion or key governments, international belief we foster inclusiveness, human organizations starting with the rights and crisis prevention. For all these European Union and United Nations, reasons, freedom of religion or belief is civil society and academia. We have at the core of Italy’s foreign policy. been working closely also with partner Freedom of religion and the protection countries in several transitional of persons belonging to religious settings, to ensure that constitutional PAOLO GENTILONI minorities are more and more relevant reform processes enshrine full Minister of Foreign Affairs and International Cooperation in the face of the unprecedented compliance with international standards Government of Italy violence affecting the current scenarios on religious freedom. of crisis. Brutal attacks often executed The present report, carried out by the by terrorist groups, such as Daesh, International Development Law against religious communities have led Organization and sponsored by the to the fleeing of millions of people, thus Government of Italy, complements these jeopardizing the multi-ethnic, multi- wider efforts by focusing on the legal religious and multi-confessional aspects of freedom of religion or belief. t is Italy’s firm belief that respect for character of societies. The Middle East The recommendations highlighted in the freedom of religion or belief is a region and the fate of its Christian report represent a valuable tool for fundamental prerequisite to the minority is a case in point. policy-makers to effectively address the iadvancement of peace and stability in We have to recognize that even legal multifaceted challenges associated with the world. Moreover, freedom of religion restrictions to religious freedom have freedom of religion or belief. Italy will or belief is at the foundation of our escalated over the last few years in remain committed in order to enable shared notion of human dignity. It is not many areas of the world. This is a trend human beings to manifest their religion only one of the most intimate and that confirms as an effective rule of law or belief without fear of violence, meaningful characteristics of our being. remains crucial, whether we aim at discrimination, political pressure, It is also a crucial element of our operationalizing freedom of religion or censorship or persecution. We hope individual and collective identities, and a belief through non-discriminatory others will join us in this important powerful tool of social aggregation and legislative acts and policies. endeavor. engagement. Freedom of religion may In recent years, the attention of the even work as a litmus test to measure international community on freedom of rome, november 2016 04 IDLO TABLE OF CONTENTS › Acronyms 05 2.3 Restrictions on the construction and › Executive Summary 07 maintenance of places of worship 23 2.4 Laws criminalizing blasphemy, defamation of religion and apostasy 24 Section 1 › Blasphemy and defamation of religion 24 WHY DOES THE LAW MATTER FOR FREEDOM OF RELIGION OR BELIEF? › Apostasy 28 1.1 Freedom of religion or belief: a broad 2.5 Religious profiling and national security 29 scope of application 11 › State obligations 12 2.6 Intersection of freedom of religion or belief with other human rights 30 1.2 Religion or belief as a unifying yet › Children 30 divisive force 12 › Women 31 Section 2 Section 3 RELIGION OR BELIEF AND THE LAW PROMOTING MUTUAL AND SELECTED CONTESTED ISSUES UNDERSTANDING OF DIFFERENCES THROUGH THE RULE OF LAW 2.1 Secular v. religious State 17 › Constitutions and freedom of religion or belief 17 3.1 Lessons learned 33 › State, religion, secularity and human rights 18 3.2 Recommendations 34 › The right to change religion or belief/forced conversion 18 2.2 Bans on private devotion in public places 20 › Notes 36 › Bans on religious garb 21 › Acknowledgements 43 AcRonymS ecthr European Court of Human Rights Un United Nations iccPr International Covenant on
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