نشریه حقوق بشر
پیاپی 20 (پاییز و زمستان 1394)

This paper assumes the author’s conceptual analysis of rights as complexes of Hohfeldian positions that confer dominion on the right-holder in face of one or more second parties and his theory of moral reasons as essentially social dual-aspect practical reasons, both explained in previously published books. It analyses the international human right to have or adopt a religion or belief of one’s choice and the international human right to manifest one’s religion or belief in worship, observance, practice and teaching as liberties of individual human beings protected by duties of non-interference and immunities from extinction holding against State Parties. It then identifies their moral grounds, the most important moral justifications for recognizing and maintaining these religious human rights in international law. It suggests that these are analogous moral religious human rights and some of the morally proper purposes of international law, including the promotion of international peace. It explains how the problematic human rights to change one’s religion or belief and to proselytize one’s religion or belief can be derived from the more basic human rights to have or adopt a religion or belief and to manifest one’s religion or belief respectively. It examines the reasons that many deny these rights and argues that, correctly interpreted, they are morally justified. Finally it reexamines the question as to whether the human rights to have or adopt a religion or belief and to manifest one’s religion or belief do more to threaten or to promote peace. It argues that although these human rights threaten peace to a limited extent, on balance they would, if universally respected, protect and enhance both internal and international peace even more. It concludes that there are two important relations between these religious human rights and peace. Both would be conducive to peace were they universally respected. And this fact is one of the moral grounds of these human rights in international law.

May the state prohibit speech that deeply offends religious sensibilities? This issue has recently been a matter of intense controversy in both the Islamic and Western world. Much of the discussion, on both sides, has been inflammatory and deeply unhelpful, even counterproductive. This paper seeks to advance the discussion by analyzing and defending the approach suggested by international human rights law. Although international human rights law is explicitly silent on the question of speech that is intended to be or is perceived as hostile to a religion, there is a clear body of law dealing with speech that fosters racial discrimination that can be used as a model. On this basis, prohibiting speech that provokes or incites religious discrimination, religious hatred, or religious violence is clearly within the bounds of international human rights law. Prohibiting speech because that speech is offensive to adherents of a religion is not. If speech is to be free, it must be regulated only to prevent demonstrable serious harm to others that outweighs the harm to those whose speech is restricted. Crying fire in a crowded theater is a classic example. Prohibiting speech that incites religious violence clearly meets this test. The fact that some people find the speech offensive clearly does not. The human right to freedom of religion does not guarantee that others respect one’s religion. States are obliged to permit the free choice and public exercise of one’s religion and to protect that choice and exercise. States are at liberty to give support to religion, either in general or to particular religions – so long as that support does not violate the human rights of others. To prohibit some speech on the basis of the religious sensibilities of one, some, or all religions restricts a fundamental human right for a non-human rights reason of insufficient weight.

As recent anthropological and sociological research conducted under the rubric of “multiculturalism” and “race relations” confirms, communities are not pre-given but imagined, constructed by forging across differences (and not subsuming them) through extroverted webs of global and local connections. In the United Kingdom, since the Salman Rushdie Affair there has been a notable development of an emerging Islamic political identity, one that challenges constructions of identity and community based on race and ethnicity. This new “Islamic” identity is at once residual and self-conscious; it is newly articulated in the public space with new symbols and narratives impacting on wider policy decisions. Furthermore, it is contingent, negotiated within the private spheres of social/local spaces as well as global contexts of everyday lives. As a result at times this “Islamic” identity is in conflict and tension with other positions held by groups and individuals. This tension is perhaps most visible in the determination of Muslim women (and others) to separate culture from religion in order to acquire rights. In other words, a consequence of this politicisation of Islamic and Muslim identities is the assertion of women’s rights from within an Islamic context. This paper considers the complexities of the British Muslim-Islamic identity and the positions it offers to British Muslim women to acquire rights from the State, the community and the family. By recognising the interplay of religion, gender and ethnicity in the every-day lives of British Muslim women, it is possible to reveal how notions of self-hood and identity have re-constructed rights and provided Muslim women in the UK with a platform from which to attain rights. This new “Islamic” platform has potential to transform British government policy and orthodox constructions of women’s rights in a secular State. In order to assess these insights, first this paper will examine the formation of this politicised Islamic identity in the UK. Second it will show how this new identity has provided Muslim women with tools to challenge current perceptions of rights, gender and ethnicity. Third it will look at specific rights and through examining the “Islamic” discourse in the UK it will show how Muslim women are negotiating and transforming the understanding of rights. The main conclusion of this paper is that although Muslim women are not a homogenous group, the formation of an articulated “Islamic” identity in the public and private spheres enables Muslim women to negotiate and acquire rights in new and transformative ways.

"Freedom of association" as a right is a misnomer. Really, the right is about the "freedom of disassociation," and the right of one group to exclude individuals from the circle of its community or association. Granting the right to form a group, without granting the right of that same group to exclude others from the group, is a worthless right. Indeed, the proper contours of associational rights have been a significant problem in all democracies, as has been well demonstrated by the recent United States Supreme Court five to four decision in Boy Scouts of American v Dale (530 U.S 640 2000) -- deciding when a group has the right to exclude others remains a deeply deeply dividing issue in society. What makes these rights so problematic is that (unlike other rights) they involve an act of exclusion or expulsion towards another. In that sense the exercise of this right more directly impinges on other people's rights than for example, religious freedom rights or free speech rights.
The first section of this paper will focus on the legal process Jewish law uses to form communities and to exclude people from its community. It will address the legal basis within Jewish law for the power to shun or excommunicate people and the goals of such a practice. It will then discuss the problems raised (internal to Jewish law) through the use of excommunication and shunning in a modern secular community where one's primary means of self-classification is not normally through religion.
This paper will then address modern American, British and Canadian law responses to various religions excluding people from their sub-communities. A complete review of the problems posed in tort law will be provided, as well as recommendations for modification of tort law doctrines to allow for greater religious freedom to reinforce religious community values.The conclusion to this article notes that associational rights allowing the formation of religious sub-communities is not only fundamental to the ways in which a religious community forms itself, but profoundly compatible with general moral and legal notions of minority rights, and represents the most equitable way a religious community can form itself in a modern society.

Islam emanates from the word ‘salaam’ meaning peace. The paper will examine some of the common misunderstandings regarding Islam today and the Islamophobia flowing from such misunderstandings in many parts of the world.
The starting point is thus to understand the fundamental teachings of Islam. In this regard it will be argued, with specific reference to the work of Maulana Wahiduddin Khan, that the true jihad is founded on the concepts or ideas of peace, tolerance and non-violence. Each of these three ideas will be briefly examined. Khan argues that all the teachings of Islam are based on the principle of peace.
In the context of human rights discourse, the paper will ask why we have so much human rights, but so few right humans (or humans who are right). Perhaps a greater emphasis needs to be placed on human duties rather than human rights.
What about human dignity? With specific reference to the 2006 cartoon controversy, the paper will argue that there needs to be limitations on the right to freedom of expression in secular societies so as not to encroach on the human dignity of people of faith, whatever faith that may be. This is crucial to the maintenance of peace in societies.
Inextricably related to the question of human dignity is the question of religious dignity. It will be argued that the right to religious dignity includes the right not to be victimised, intimidated or provoked on grounds of one’s religion or faith.
After some 300 years of the dominance of Western secularism and human reason, perhaps it is time for a return to the harmonization of faith and reason, to the harmonization of Revelation and reason. This call was made, in a project headed by Prof McLean, by the Catholic University in Washington in 2008. There is a need to have regard to faith-based values and the need for a human rights discourse founded on faith-based values.
The paper will also make reference to the important work and writings of a leading Turkish scholar, Fethullah Gulen, in respect of Islamic ideals, humanistic discourse and the dialogue of civilizations.
In the final analysis, if human rights are to serve to maintain world peace and human dignity it must be founded on a respect for religious values.

This paper will explore the exact relation between the right to freedom of expression and the prohibition of religious hatred that constitutes incitement to discrimination, hostility or violence.
Considering the precise formulations of the substantive human rights norms of the International Covenant on Civil and Political Rights (Part III of the treaty: articles 6–27), one could argue that the prohibition of religious hatred that constitutes incitement to discrimination, hostility or violence is the ‘odd-one-out’ in as far as this norm: (i) does not provide the individual with a clear right (it does specify the duty bearer: the state; however, this clause does not identify a right holder); (ii) if anything, actually constitutes a limit on another substantive human rights norm: the right to freedom of expression.
The principal objective of this paper is to present a critical analysis of and to provide workable benchmarks and guidelines on the interplay between these two norms. In the context of the interrelatedness of the two norms it has been argued that the prohibition of advocacy of religious hatred should be interpreted as a restriction on the right to freedom of expression in a way that is consistent with the grounds for limitation that are listed by the provision on freedom of expression itself. That is to say, the prohibition of advocacy of religious hatred as a possible limit on free expression needs to be prescribed by law and applying this restriction must be necessary to uphold the fundamental rights of others (i.e. religious minorities, in the present context). Though this sheds some light on the relation between the two rights, many related issues are still to be resolved. Questions that will be addressed in this paper include:What is the legal threshold for determining whether a discriminatory speech or a speech that advances certain stereotypes constitutes religious hate speech?;
Can an attack on a religious doctrine be so severe as to merit state interference, i.e. can an attack on religions (rather than on religious believers) amount to hate speech?; and how to draw the line between expressions about religious doctrine or ideology on the one hand and religious believers on the other?;
What is the legal relevance of the position or function of the person behind the speech or publication (e.g. are there different thresholds for politicians, civilians, artists, etc.)?;
What is the legal relevance of the type of media (which can range from internet blogs, to propaganda or quasi docu-type films broadcasted on the television or posted on the internet, to written materials) used when it comes to assessing hateful speech or publications?
Is the ‘state of society’ legally relevant in determining the threshold for hate speech? (e.g. is there a different legal threshold in so-called genocidal societies and post-genocidal societies);
What does the prohibition of advocacy of religious hatred mean in terms of state obligations?; how to transpose this norm into an adequate domestic anti-hate speech Act?; at what exact stage does the state need to interfere with the right to freedom of expression (i.e. is censorship ever merited or should the prohibition of hate speech solely translate into legal repercussions after the fact, that is, in reaction to illegal speech or publications)?
The proposed output of the paper is a comprehensive principles model on the interplay between the right to freedom of expression and the prohibition of religious hatred that constitutes incitement to discrimination, hostility or violence, taking into account the relevant international human rights norms and jurisprudence surrounding the issue of hate speech.

International integration affects many sides of societal life, including the development of national legal systems. This article analyzes the regularities and algorithms of the mutual effect of national legal systems, which lead to the formation of unique compositions of various legal traditions. Special attention is paid to the influence of international law on the development of the legislative systems of individual countries. The author proposes ways of overcoming contradictions and gaps in the legal regulation of the multidimensional system of integration associations with the participation of the Russian Federation and substantiates conceptual approaches to the formation of the legal framework of the Eurasian Economic Union and subsidiary support for the union’s development within the legislations of the member states.