Islamic Law in Iran: Can It Protect the International Legal Right of Freedom of Religion and Belief?
Cohen, Jennifer F., Chicago Journal of International Law
[Differences among civilizations are not only real; they are basic. Civilizations are differentiated from each other by history, language, culture, tradition and, most important, religion. The people of different civilizations have different views on the relations between God and man, the individual and the group, the citizen and the state, parents and children, husband and wife, as well as differing views of the relative importance of rights and responsibilities, liberty and authority, equality and hierarchy. These differences are the product of centuries. They will not soon disappear.1
Is he then who is a believer like him who is a transgressor? They are not equal.2
Differences among civilizations are a critical consideration in the development and enforcement of public international law. As "non-Western" countries gain a more sophisticated and influential presence in the UN and other intergovernmental bodies, these bodies are forced to reconcile their historic and elemental positions with those of member states that may have fundamental differences in their views of governmental power, human rights, and the role of international authority.
Religion is one area of particular interest because of its divisive implications for major players on the world stage. Religious beliefs inform the moral frameworks of many of the world's most prominent policymakers. Whereas some nations are self-consciously religious in their policymaking, others, though potentially equally as informed in their moral structures by religion, claim to be secular in their statehood.3 Though the world is becoming more fragmented by ideology, it is also better connected through technology, and it is the role of legal scholars and policymakers to determine whether the maintenance of an international collaborative government body really is feasible in all areas of law.
This Development explores the potential for compatibility between Islamic Law and human rights-in particular the freedom of religion and belief. As manifestations of Qur'anic law are as diverse as interpretations of "Western" liberal law, this Development focuses on Iranian Qur'anic law with only brief mentions of the implications of Islamic law for other countries.4 Though the Iranian interpretation of Islamic law is by no means representative of all Islamic nations, because of its conservative nature, it can serve as a benchmark in the analysis of other governmental systems.
Section I outlines the relevant international law, namely Article 18 of the International Covenant on Civil and Political Rights ("Covenant").5 It includes a discussion of the UN's official interpretation of the Covenant and identifies potential differences in interpretation of the Covenant by Muslim nations. Section II outlines Iranian law, including a sketch of the pertinent portions of the Iranian Constitution, its governmental interpretation, and the tools utilized in this interpretation. Section III analyzes how the Iranian Constitution conflicts with the Covenant. Section IV concludes by discussing the potential implications of this conflict.
Ultimately this Development finds an inherent incompatibility between Iranian Islamic Law and what might be called "Western-based" international law. Phrased differently, the Constitution of the Islamic Republic of Iran, both explicitly and as interpreted by the Iranian government, inherently violates the UN's commitment to protect freedom of religion and belief, a commitment that as a member state it has agreed to uphold. Unless the Islamic Republic of Iran undergoes a regime change or a significant evolution of either theological or political belief, it will be unable to comply with the Covenant and the subsequent UN mandates requiring the modification of national policies. The specific examples of Iran's violations that are explored in this Development are symptomatic of its general administrative policy as opposed to freestanding events or deviations from the norm. …