elsewhere

This page considers flag burning, national symbols and free speech.

It covers -

• introduction
• international frameworks
• Canada
• EU
• other nations

     introduction

Overseas regimes about destroying or dishonouring national symbols vary considerably.

Some states have been zealous in protection of their flags and other symbols but endorsed defacement of symbols associated with their enemies (eg Egypt and Turkey). Some states have not prohibited destruction of their own symbols but have sought to inhibit attacks on the symbols of other nations (eg Norway). Some, such as the US, have recognised flag burning as protected speech. Most nations restrict particular non-state symbols (eg cross burning in the US and display of the swastika in Germany and Austria), typically on the basis that use of such symbols is intended to intimidate.

All have recourse to restrictions regarding demonstrations, riots, arson, theft or other offences that might feature a flag, portrait or other symbol.

     international frameworks

There is no international agreement against flag burning as such. The Vienna Convention on Diplomatic Relations 1961 (VC), discussed in Eileen Denza's Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (Oxford: Oxford Uni Press 2004), commits nations to protecting diplomatic missions from interference and harassment. Articles 22 and 29 of the Convention, obligate national governments to take all appropriate steps to protect another nation's mission from damage to its premises, from attacks on the freedom, person or dignity of its personnel, and from any disturbances of the peace that impair the mission's dignity.

In practice some nations are more zealous about protecting missions than others. Stances on the nature of 'dignity' and impairment vary. As the preceding page noted, peaceful demonstrations in Australia by Falun Gong members outside the Chinese Embassy have been regarded as impairing that mission's dignity.

In other nations it has been common to observe officials standing by, or even orchestrating, incineration of flags and effigies or damage to insignia marking mission premises. (Rogue states, such as Iran, have simply occupied the missions of the 'Great Satan' and other foes.)

     Canada

Canada does not have specific legislation to prohibit destruction or defacement of flags, whether Canadian or of other nations.

Private members bills to introduce flag burning legislation through amendment of the Criminal Code have not proceeded to a second reading.

     the EU

The UK, like Australia, does not have specific restrictions against dishonouring the national flag (or the personal standards of the head of state and other royal family members). The extent of protection for flag burning as free speech under EU and international human rights charters has not been tested, for example through a case before the European Court of Human Rights.

Section 248 of the Austrian penal code, inherited from the Third Reich, is concerned with "denigration of the State and its symbols" and provides that

Whosoever, in such a manner that the act becomes known to the general public, in a malicious way, insults and brings into contempt the Austrian Republic and its States, is liable for imprisonment for up to one year.

Whosoever, in the manner described in Paragraph 1, in a malicious manner and at a public occasion or a function open to the public, insults, brings into contempt or belittles the flag displayed for official purposes or the national or state anthems of the Austrian Republic or its States, is liable for imprisonment of up to 6 months or a fine of up to 360 times the fixed daily rate.

Law in France as part of 'internal security' enactments passed in 2003 makes it an offence to insult the national flag or anthem, with a penalty of a maximum £6,000 fine or up to 6 months imprisonment.

Restrictions on "offending against the dignity of the Republic" include "insulting" anyone who serves the public (potentially magistrates, police, firemen, teachers and even bus conductors). The legislation reflected debate after incidents such as booing of the Marseillaise at a France v Algeria football match in 2002.

In Germany Section 90 of the Criminal Code concerns 'Disparagement of the State and its Symbol'. It provides that

Whoever publicly, in a meeting or through the dissemination of writings (Section 11 subsection (3)):
1. insults or maliciously maligns the Federal Republic of Germany or one of its Lands or its constitutional order; or
2. disparages the colors, flag, coat of arms or the anthem of the Federal Republic of Germany or one of its Lands,
shall be punished with imprisonment for not more than three years or a fine.

Whoever removes, destroys, damages, renders unusable or unrecognizable, or commits insulting mischief upon a publicly displayed flag of the Federal Republic of Germany or one of its Lands or a national emblem installed by a public authority of the Federal Republic of Germany or one of its Lands shall be similarly punished. An attempt shall be punishable.

The expectation is that prosecution will address "efforts against the continued existence of the Federal Republic of Germany or against its constitutional principles".

In Hungary it is an offence to dishonour the national flag, but not that of other nations, with Adam LeBor quipping in 2004

Nowadays you can hardly walk past a Starbucks or McDonald's without someone setting an Israeli flag on fire.

Identification of "Crimes Against the State" in Italy features "Public insult or vilification of the flag or any other emblem of the State". Article 292 of the Criminal Code deals with anyone who "publicly insults or vilifies" the national flag or "other emblem" of the State, punishable by imprisonment for up to four years. It encompasses those who publicly insult or vilify the national colours as distinct from the flag.

In Norway there is no enactment relating to desecration of Norway's own flag. However the General Civil Penal Code, consistent with the Vienna Convention, protects the flags and national coats of arms of other countries

Any person who in the realm publicly insults the flag or national coat of arms of a foreign State, or who is accessory thereto, shall be liable to fines or to detention or imprisonment for a term not exceeding one year. The same penalty shall apply to any person who in the realm offends a foreign State by committing violence against or by threatening or offensive behaviour towards any representative of that State, or by intruding into, causing damage to, or soiling any building or room used by any such representative, or who is accessory thereto.

There are similar provisions in Sweden and Denmark.

In Portugal article 332 of the Penal Code, dating from 1999, provides that

Anyone who by words, gesture, in writing or by any other means of public communication, desecrates the Republic, national flag or the national anthem the symbols or emblems of the Portuguese sovereignty, or in any other way fails to pay them their due respect, shall be punished with a prison sentence of up to 2 years or with a pecuniary penalty of up to 240 days.

     other

Turkey has gained attention for the vehemence of statements by the armed forces about protection of the national honour and the ineptness of prosecutions of figures such as writer Orhan Pamuk (guilty of acknowledging the historicity of massacres of Kurds and Armenians) or cartoonists who depicted the head of state as a frog. It is an offence under sections 301 and 305 of the Penal Code to insult "the Turkish nation", including denigration of Kemal Atatürk or the president, destruction of the flag, defacement of Turkish currency or criticism of the armed forces and police.

The General Staff responded to flag burning by teenage Kurds in March 2005 with the comment

This is traitorous behavior. Everyone should know very well that neither this country's indivisible integrity nor the glorious Turkish flag, which is a symbol of that unity and integrity, will ever be left without their protectors.

The Turkish nation has experienced many betrayals besides its countless triumphs throughout its history. However, it has never seen such a vileness by its so-called citizens in its own territories. Such a desecration against the Turkish flag by so-called citizens in its country is totally unexplainable and unjustifiable. It is nothing but treason.

Burning the Turkish flag (although not that of the US) attracts a sentence of one to three months imprisonment.

In India display of the Indian national flag is governed by the 1950 Emblems & Names (Prevention of Improper Use) Act and 1971 Prevention of Insults to National Honour Act.

The Flag Code encompasses punishment for one who "burns, mutilates, defaces, defiles disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts)" the flag in a public place or in public view. It also makes it an offence to show "disrespect" to the flag, including use of the flag "as a portion of costume or uniform", on "cushions, handkerchiefs or napkins", as "covering for a statue" and allowing the flag to "touch the ground" or "trail in water".

In Egypt, Iraq, Iran, Palestine and Saudi Arabia desecration of the national flag is a criminal offence, typically punishable by up to 20 years imprisonment. There is less protection for the flags of other states; burning the flag of the 'Great Satan' (or effigies of the US President and figures such as the Australian Prime Minister) is a recurrent media event endorsed - if not organised - by authorities in several of those countries.

In China "insult" to the national flag is a criminal offence. Article 299 of the Criminal Code specifies that

Whoever purposely insults the national flag, national emblem of the PRC in a public place with such methods as burning, destroying, scribbling, soiling, and trampling is to be to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control or deprived of political rights.

That penalty was introduced into the Hong Kong SAR under the 1997 National Flag and National Emblem Ordinance, upheld by the Hong Kong Court of Appeal in 1999 as "necessary for national cohesion" after claims that it was contrary to Article 39 of the Basic Law by restricting rights and freedoms enjoyed by Hong Kong residents under the International Covenant on Civil & Political Rights (ICCPR). The Court commented that restrictions on freedom of speech contained in the Ordinance were limited and justified by the need to protect other values that were also worthy of constitutional protection.

Article 160 of the Taiwan Criminal Code prohibits desecration of the national flag and that of Sun Yat Sen. Article 118 criminalises desecration of foreign national flags and emblems.

In Japan there is no law against damaging the Japanese flag (although vigilantes since the 1960s have on occasion assassinated protestors who were incautious enough to deface or destroy the flag).

However there are enactments prohibiting destruction or defacement of the flags of other nations.





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