Apostasy : An Overview - The Maranatha Community

APPENDIX 4
An analysis of international law relating to apostasy and freedom to change
one’s religion
This analysis is based upon advice given by Paul Diamond, Barrister. (July 2006).
Introduction:
1. International law forms a relevant consideration in relation to the decision of an individual to change his or her religion; the
obligations in international law arise in treaty provision, customary international law and the principle of jus cogens.
United Nation Treaty Provision:
2. Article 103 of the United Nations Charter gives primacy to the obligations under the United Nations Charter over any other
international agreement.
3. Article 56 requires Member States of the United Nations to “pledge themselves to take joint and separate action in cooperation
with the Organisation for the achievement of the purposes set forth in Article 55”.
4. Article 55 states that the United Nations shall promote:
Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion.
5. The lexicon of human rights to which Islamic states must adhere to are established in the Universal Declaration of Human
Rights (1948) and, arguably, in the International Covenant on Civil and Political Rights (1966).
Customary International Law:
6. International customary law is binding on States and is self-executing. A State need not make prior authoritisation, or
statutory provision for the custom to be effective.
7. The Universal Declaration on Human Rights (1948) establishes the norms under the United Nations Charter and, is
additionally, is declaratory of customary international law. It is part of the structure of the world community and is a basic
component of customary law binding on all states and not solely on members of the United Nations: Filartiga v Pena-Irala
630 F 2 nd 876, 883 (2 nd Cir. 1980).
8. The widespread acceptance of the Universal Declaration of Human Rights (1948) and the International Covenant on Civil
and Political Rights (1966) means that the terms of these Declarations and Treaty provisions are binding on all States.
Customary international law includes gross violations of internationally recognised human rights: Restatement (Third) of
the Foreign Relations Law of the United States.
9. More important is its status as an authoritative guide, produced by the General Assembly, to the interpretation of the
United Nations Charter. In this capacity the Declaration has considerable indirect legal effect, and it is regarded by the
Assembly and by some jurists as a part of the “law of the United Nations”.
10. Only Saudi Arabia abstained on voting for the Universal Declaration; however this does not suffice as a repudiation of
international norms.
11. Article 18 of the Universal Declaration of Human Rights states:
“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.”
12. Article 18 of the International Covenant on Civil and Political Rights states:
“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.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief
of his choice.”
13. These provisions on freedom to change religion and freedom to adopt a religion with freedom from coercion clearly
indicated that freedom of religion are part of the human rights components of international customary law.
32