Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of Defamation of Religion

The emerging international human rights norm of defamation of religion, an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion, as an emerging norm and the current debate over a possible Australian bill of rights, to argue that a well-rounded drafting process. This drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument that is designed to address future rights-based challenges. Following introductory remarks, Part II of this article offers a brief comparative history of the offense of blasphemy to help contextualize the potential impact of defamation of religion on the international level. Part III discusses how defamation of religion became the focus of dozens of UN resolutions, assesses the challenges associated with grafting the legal concept of defamation onto the mercurial notion of religion and its potential implications for existing international law, and takes stock of the ongoing debate as it stands today. Part IV draws some preliminary conclusions concerning the possible impact of enforcing a norm against defamation of religion, and considers to what extent – if at all – Australia should incorporate a response to this emerging norm in any future bill of rights