In July 2023, the UN General Assembly adopted a resolution condemning violence against holy books following multiple Quran-burning incidents in Europe [see here]. Formulated by Morocco and endorsed by the General Assembly, the resolution titled ‘Promoting inter-religious and intercultural dialogue and tolerance in countering hate speech’ deplores violence against religious symbols, texts, and places. The adoption of the resolution was prompted by the alarming upsurge of incidents involving religious books and symbols, which the UN Human Rights Council in Geneva largely criticised on several occasions [here, 2]. The resolution has been oftentimes opposed by Muslim leaders for the desecration of freedom of expression, while the Western nations contested the resolution for its impact on free speech. The differing views among the nations have prompted a crucial discussion about the complicated intersection between the right to express oneself freely and the right to hold religious beliefs without disturbance and with dignity [here, 3]. In essence of the resolution, this article seeks to explore the intersection between the two fundamental human rights and examine how to effectively strike a balance between them.

Rights to Freedom of Religion and Freedom of Expression

Although separate in international human rights law, both the rights of freedom of expression and freedom of religion are considered crucial for individual growth [here, 4]. The essence of the resolution is primarily derived from the mutual influence and interdependence of the two rights.

The freedom to hold and practise religious beliefs is a fundamental human right recognised in major human rights instruments. Article 18 of the Universal Declaration of Human Rights [“UDHR”], Article 18(1) of the International Covenant on Civil and Political Rights 1966 [“ICCPR”], and Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 [“ECHR”], each ensure the freedom of thought, conscience, and religion. Summarily, these provisions provide two basic components of the right to freedom of religion or belief. The first is the right to hold or change one’s religion or belief, which remains unrestricted under all circumstances. The second component is the right to express one’s religion or belief publicly. The latter can be restricted according to articles 9(2) of the ECHR and 18(3) of the ICCPR, however, such restriction must be lawful and deemed necessary for safeguarding public safety, health, morals, or the rights of others.

Now, when it comes to religion or belief, freedom of expression can come into play in two ways– when someone is expressing their own beliefs or when they are expressing opinions about the beliefs of others that might be seen as offensive. The right to freedom of expression is not absolute and is subject to more limitations than freedom of religion [here, 10]. The ICCPR’s Article 19 and the ECHR’s Article 10(2) outline permissible restrictions for national security, safety, public order, health, morality, and protecting rights. Importantly, there is no recognized entitlement to avoid being offended under both international and European human rights law [here, 12]. The European Court of Human Rights [“ECtHR”] has clarified that freedom of expression pertains not only to ideas that are well-received or deemed harmless, but also to those that provoke, shock, or disturb the state or any segment of society. Restrictions on hate speech, which involves abusive, discriminatory, or inciteful language targeting groups based on race, religion, etc., are valid for curbing freedom of expression [here, 14]. ICCPR’s Article 20(2) also compels states to outlaw hate speech inciting discrimination or violence. The ECHR lacks a similar duty, yet the ECtHR suggests regulating expressions that propagate intolerance. The ECtHR uses Article 17, which prohibits the destruction of and excessive limitation on rights and freedoms, to curb extreme expressions without weighing rights against others, referring to cases linked to xenophobia and Holocaust denial.

The Intersection Between the Two Rights

Finding the right balance between freedom of expression and preventing incitement to religious hatred is a complex task. However, it is pertinent to strike the balance by setting standard boundaries based on the international instruments to restrict these fundamental freedoms. Article 19(3) of the ICCPR provides a rather standard guideline for evaluating the legitimacy of such restrictions. However, practical guidance is necessary when weighing freedom of expression against the need to prevent incitement of hatred based on religious sentiment. It is also paramount to recognize that determining what constitutes incitement to hatred, and should therefore be prohibited, depends on the specific context of each case, considering factors like local conditions, history, and cultural and political tensions.

The UN Human Rights Committee has addressed several cases involving freedom of thought and religion over time. It ruled against restricting prisoners from religious practices and highlighted how religious expression encompasses various acts, for instance, in the Boodoo v. Trinidad and Tobago case [16]. Alternatively, the Committee also found that requiring a Sikh, who wears a turban (headcover worn by Sikh Muslims), to wear a helmet at work (Bhinder v. Canada) does not breach their religious freedom [17]. Similarly, the ECtHR supported denying a Muslim student entry due to headscarf bans (Leyla Sahin v. Turkey). Hence, the decisions as to whether certain restrictions violate one’s human rights are principally made based on the values of secularism and equality.

Again, restrictions must be carefully worded to indicate that their sole purpose is safeguarding individuals and communities from hostility, discrimination, or violence based on ethnicity, nationality, religion, or beliefs—not shielding belief systems, religions, or institutions from criticism [here, 18]. Not to mention, freedom of expression includes the ability to examine, openly discuss, and criticise beliefs, opinions, and institutions, including religious ones, as long as it does not promote hate leading to violence, hostility, or discrimination. Hence, to best uphold the rights, countries setting legal consequences for violation should distinguish between (a) expressions that should be a criminal offence; (b) expressions that might lead to civil lawsuits but are not criminally punishable; and (c) expressions that do not result in criminal or civil penalties but still raise concerns about tolerance and respect for others’ beliefs [here, 19]. In its General Comment No. 34 (2011) on freedoms of opinion and expression, the Human Rights Committee emphasizes that laws prohibiting disrespect for religions or belief systems, such as blasphemy laws, contradict the ICCPR, except as outlined in Article 20(2). Such prohibitions must also adhere to the strict requirements of Article 19(3), as well as Articles 2, 5, 17, 18, and 26 of the ICCPR. As such, these laws should not favour one religion over another, or discriminate between believers and non-believers, or be used to prevent criticism of religious leaders or discussions about religious doctrines and beliefs.

Moreover, considering the connection between Articles 19 and 20 of the ICCPR, countries should shape their domestic legal systems regarding incitement to hatred or religious violence with explicit reference to Article 20(2) of the Covenant and enact comprehensive anti-discrimination laws encompassing preventive and punitive measures to counteract incitement to hatred effectively. The same three-part assessment – legality, proportionality, and necessity – used to gauge limitations on freedom of expression should be applied to instances involving incitement to hatred. Countries should leverage the guidance extended by expert international human rights mechanisms, including the Human Rights Committee and the Committee on the Elimination of Racial Discrimination, along with their respective documents, General Comment No. 34 (2011) and General Recommendation No. 15 (1993). Special attention should be given to minorities and vulnerable groups by providing legal and other support to their members.

Conclusion

The difficulty in navigating the intersection between freedom of thought, religion, and expression is undeniably complex. While the idea of freedom of expression has been thoroughly discussed in international human rights law and many domestic laws, not all nations fully uphold its practical implementation and recognition. Additionally, international human rights guidelines regarding preventing incitement to national, racial, or religious hatred are yet to be fully incorporated into domestic laws and policies across various regions. As a result, challenges emerge in terms of the nature and political delicacy of establishing a definition for the concept that preserves freedom of expression while not harming others’ religious dignity and freedom, albeit the limit of freedom of expression extends beyond religion to protect broader societal interests. Hence, balancing religious expression, public safety, and non-discrimination is crucial, even sometimes pitting rights against each other. Nevertheless, these rights can work together, guided by tolerance and open-mindedness, and continued conversations about these rights will shape a more inclusive world with peace, harmony and respect among religions.

---

Tarazi Mohammed Sheikh is a Senior Law Student at BRAC University.

---

Image: report.az