For the 2016 Spiritual Human Rights conference titled “How Universal is the Universal Declaration?” we received a contribution from LAYMS, the League for Antidefaimation of Yoga and Spiritual Movements, who was unable to attend but, nonetheless, wished to provide their view on the topic.

LAYMS:

1. Can the law make exceptions depending on intent and culture?

Laws are a system of rules that are enforced through social institutions to govern behavior. Law shapes politics, economics, history, and society in various ways, and serves as a mediator of relations between people. It is a way of resolving disputes between two or more parties with concrete effects.

Law also raises important and complex issues concerning equality, fairness, and justice. There is an old saying that 'all are equal before the law', although Jonathan Swift argued that 'Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.'

There are two “natural law” theories about two different things:

- a natural law theory of morality, or what’s right and wrong, and

- a natural law theory of positive law, or what’s legal and illegal.

The two theories are independent of one another, therefore, it is perfectly consistent to accept one while rejecting the other.

Legal positivism is a school of thought of analytical jurisprudence, the view of man-made law as it is set by man for man rather than as it ought to be. It implies that legal rules are valid, not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such. From this perspective, the law can make exceptions depending on intent and culture.

Historically, legal positivism sits in opposition to natural law theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality.

2. Following globalization – will we have universal law instead of national law?

The international system has become less of a state-centric, coordinative mechanism than a collectivity of specialized transnational regimes that penetrate into the political constitution of domestic policies. Technological advancements have accelerated the migration and transplanting of legal rules and practices. Non-state actors, such as, IGOs, INGOs, TNCs, and cross-border social movements have become significant actors in international governance. They have assumed the power to create transnational law that governs many dimensions of the political economy, previously monopolized by the jurisdiction of the sovereign state.

Sovereignty is at the heart of both public international law and the legal constitution of the territorial state. Substantive changes in the international system unavoidably affect the shape of sovereignty and the future of state law. Indeed, in numerous cases, the state's effective monopoly on all legitimate coercive forces within its territory is no longer empirically defensible. The ability of state law to regulate trans-nationalized activities like cyber disputes and cross-border commercial transactions effectively is on the verge of decline. Nonetheless, the interplay between law and globalization is plagued by uncertainties.  Global forces have brought about both intolerable inequality and new opportunities for exchange. The concept of global law is debatable precisely because it is both global and legal. In many respects, transnational norms assume regulatory powers at the expense of municipal legal systems. The relationship between nonstate and state law is further complicated by the deformalization of regulation. The legal norms originating from the less formal rule-making processes of nonstate international actors is altering perceptions about what the notion of “law” really means.

The modern state and its law are transforming. Undoubtedly, transnational actors have profoundly influenced the content and character of municipal legal systems. However, the globalization of international governance is not about the marginalization of one legal order by another. After all, the homogenization of law on a global scale is largely speculative. A unified constitutional order of mankind is not in the making, at least in the foreseeable future. However, the state may at times strategically choose to comply with international and transnational norms instead of its own traditional state law; therefore, the adaptive power of state law should not be underestimated. It may focus less on maintaining sovereign claims to territorial supremacy, and more on the protection of local practices and regional diversity. In the end, the fundamental functions of state law with regards to structuring the institutional architecture of the state, channeling wide-ranging national social policies, and responding to localized needs and conflicts, are irreplaceable. The interplay between the global and the local is far more complex than mere conflict. People who enact and enforce state law frequently shape non-state law at the same time. Importantly, legal elites whose outlook is both local and transnational possess the extraordinary power to decide whether state or non-state law is to be followed in a particular policy or situation.

The public imagination of a global takeover of sovereign rights provides national political elites with a resource to strengthen their existing powers and extend the state's regulatory influence into new areas. Domestic governments, which control the armed forces and important natural and economic resources, are unlikely to give up their vested interests unconditionally. In general, sovereign state law is strong and flexible enough to endure the many challenges ahead. Despite globalization, sovereign state law is likely to retain its political influence over the lives of the vast majority of people around the world.

 

3.Even though the declaration exists, is it being respected at the national level?

International legal instruments take the form of a treaty, also called an agreement, convention, covenant or protocol, which may be binding on the contracting states.  When negotiations are completed, the text of a treaty is established as authentic and definitive and is signed by the representatives of states. There are various means by which a state expresses its consent to be bound by a treaty, with the most common being ratification or accession.  A new treaty is ratified by those states that have negotiated the instrument, while a state that has not participated in the negotiations may, at a later stage, accede to the treaty.  The treaty enters into force when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations, understandings or declarations to one or more articles of the treaty, unless the treaty prohibits this actions, if they would override the point and purpose of the treaty, or if another party objects.  Reservations are exceptions that a state makes to a treaty—provisions that it does not agree to follow—and may normally be withdrawn at any time. In some countries, international treaties take precedence over national law.  In others, a specific law or vote may be required to incorporate an international treaty at the national level.  Almost all states that have ratified or acceded to an international treaty may issue decrees, amend existing laws, or introduce new legislation in order for the treaty to be fully effective in the national territory.

 

4.Which existing, or new, initiatives are crucial to upholding human rights?

The struggle for religious liberty has been ongoing for centuries, and has led to innumerable, and often tragic, conflicts.  The twentieth century saw the codification of common values related to freedom of religion and belief in numerous international treaties, declarations, and conventions.  

The United Nations recognized the importance of freedom of religion and belief in the 1948 Universal Declaration of Human Rights, Article 18. Similar provisions can be found in Article 18 of the International Covenant on Civil and Political Rights, as well as other regional and specialized human rights instruments. However, attempts to develop an enforceable, binding document specifically related to the freedom of religion and belief have been unsuccessful.

After twenty years of debate, intense struggle, and hard work, in 1981 the General Assembly made strides towards achieving the goal of introducing a treaty on freedom of religion and belief, adopting (without a vote) the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (1981 Declaration).  While the 1981 Declaration lacks any enforcement procedures, it remains the most important contemporary codification of the principles of freedom of religion and belief.

When the 1981 Declaration was adopted as a non-binding human rights instrument, several states had reservations, including Romania, Poland, Bulgaria, Czechoslovakia, and the former U.S.S.R.  These states believed that the 1981 Declaration did not take sufficient account of atheistic beliefs.  Romania, Syria, Czechoslovakia, and the U.S.S.R. made a general reservation regarding provisions not in accordance with their national legislation.  Iraq entered a collective reservation on behalf of the Organization of Islamic Cooperation as to the applicability of any provision or wording in the Declaration which might be contrary to Shari'a (Islamic) law or to legislation or acts based on Islamic law.

 

Historical Dates and Treaties

UNITED NATIONS

1948: Universal Declaration of Human Rights, Article 18

1966: International Covenant on Civil and Political Rights, Article 18

1981: Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief

1986: Establishment of the Special Rapporteur to identify existing and emerging obstacles to the enjoyment of the right to freedom of religion or belief

1993: Human Rights Committee’s General Comment Number 22 on Article 18 of the Civil and Political Covenant

 

COUNCIL OF EUROPE

1950: European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), Article 9

2004: Council of Europe Venice Commission / OSCE “Guidelines for Review of Legislation Pertaining to Religion or Belief”

 

ORGANISATION FOR SECURITY AND CO-OPERATION IN EUROPE (OSCE)

2004: Council of Europe Venice Commission / OSCE “Guidelines for Review of Legislation Pertaining to Religion or Belief”

 

COUNCIL OF THE EUROPEAN UNION

2009: Council Conclusions on freedom of religion or belief, 16 November 2009

2011: Council Conclusions on intolerance, discrimination and violence on the basis of religion or belief, 21 February 2011.

2013: EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief, 24 June