Freedom of Religion:
The Evolution of a Human Right
Dr. Rhona K.M. Smith LLB (Hons.)
Lecturer in Law
Undergraduate Law and Management student
Public Administration and Law
Robert Gordon University
A religion is a set of beliefs,(1) essentially "an intensely personal matter."(2) Belief in a religion is frequently manifested in acts of worship and demonstrations of belief, usually in community with others.(3) Religion may be a key factor in the identification of a group; Tibet and the Middle East provide prime examples. By their very nature, religious practices can impinge on daily life and adherence thereto has the potential to affect all areas of society and life. Indeed, the operation of a state may be affected by the religious views of its subjects: working conditions, holidays ("holy days"), health, food, family groupings and education are all areas of interest to both the state and religious bodies. In these cases, although the law cannot force people to believe in a given religion, it can be a persuasive motivating factor.
Protection of religious rights are particularly problematic for states, as there is a "significant challenge in framing laws which strike the proper balance between, on the one hand, permitting freedom of religion and religious practices and, on the other, protecting the rights of non-adherents."(4) This is arguably makes religious rights "particularly ripe for treatment within international law."(5) Fifty years ago, the United Nations' General Assembly adopted the Universal Declaration of Human Rights,(6) including protection of religious minorities as one of the goals.(7) In the fifty intervening years, the United Nations has made attempts at codifying provisions both on religious freedom and on discrimination on grounds of religious belief. Nonetheless, there are still many prominent examples of religious persecution in the contemporary world.
International law has taken a two-pronged approach to the question of religious rights, with detailed provisions on freedom of religion - the freedom to manifest religious beliefs - and freedom from religion-based discrimination. This article will review the historical development and international protection of religious rights before identifying some problems with the current provisions and commenting on potential solutions.
2. Historical Protection Of Religious Rights
Historically, those practicing their religious beliefs have been afforded some degree of protection, provided it posed no threat to the state. For example, in ancient Rome, religious practice was permitted in so far as such practice did not infringe the overriding rules of the Roman Empire.(8)
In medieval times, the church was the state(9) - religion was a public policy issue. In sixteenth century Europe, the advent of the Reformation heralded the downfall of Catholicism as the dominant religion. As the power of the Catholic Church waned, tolerance towards other religious groups developed in return for an end to hostilities. Moreover, states started to intervene in civil disputes on behalf of persecuted fellow believers in neighboring states - exercising a "like helps like" philosophy. Religious tolerance thus became a political necessity for securing peace.(10)
Protection of religious groups is historically linked with the protection of minorities. Early provisions for religious minority protection were articulated in the nineteenth century in the Treaty of Berlin 1878. Under this Treaty, it was incumbent upon the governments of the Balkans to respect the lives, properties and religious liberties of their populations.
Barely fifty years later, with the redrawing of Europe following the First World War, populations were exchanged along some of the newly designated international boundaries on the basis of the religion of those persons.(11) The League of Nations itself overviewed the implementation of the minority guarantee clauses which were included in many of the Peace Treaties signed at the close of the First World War.
3. Contemporary International Provisions
Following the Second World War and the well-documented religious persecution under the Nazi regime, freedom from persecution on religious grounds became a high profile political goal. The response of the international community was two-fold: an international prohibition on genocide and the declaration of a global standard of human rights.
B. The Prohibition on Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide(12) deems genocide an "odious scourge"(13) from which mankind must be liberated. Genocide is defined as including specified acts which are committed with the intention of destroying in whole or in part a religious group.(14) Adopted as a partial international response to the Nazi extermination of the Jewish peoples, the Convention deems genocide a crime under international law. Today, this prohibition on genocide is regarded as ius cogens.(15) However, it should be noted that the Convention only seeks to guarantee the physical right to an existence, and as such does not protect the right of a religious group to manifest their beliefs. Religious groups are therefore entitled to live, but the manifestation of their religious beliefs may be impeded without offending the Convention.
C. The Universal Declaration of Human Rights
De Azacarate, Director of the Minorities Questions Section of the League of Nations, identified a global declaration of rights as a possible solution. Writing at the conclusion of the Second World War on religious minorities, De Azacarate said: "[t]heir situation would be regularized if a 'charter' of the rights of man, guaranteed by the entire international community, were generally adopted."(16) The Holocaust, in conjunction with the atrocities committed in Europe and Asia during the Second World War, demonstrated the clear need for a global standard of human rights. Man's inhumanity to man must be regulated.
Partly in order to regulate "man's inhumanity to man," the General Assembly of the United Nations adopted the Universal Declaration on Human Rights (UDHR)(17) on December 10th 1948. Adopted without dissent, the UDHR was proclaimed to be "a common standard of achievement for all peoples and all nations".(18)
As a General Assembly Resolution, the UDHR is not legally binding. It does, however, have strong persuasive force. Namely, it has "certain legal effects and exerts a high degree of expectation of obedience by members of the international community to the extent that it may be eventually considered as stating rules of customary international law".(19) Indeed, many of the rights enshrined in the UDHR are now considered to be general principles of law; some even have the status of customary international law.(20)
Article 18 of the UDHR deals with religious rights, stating:
"Everyone has the right to freedom of thought, conscience and religion; this right includes...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."(21)
It was the original hope of the drafters that the Universal Declaration would quickly be followed by a more detailed tabulation of rights and freedoms in a legally binding format. However, it was not until December 16, 1966 that the two international human rights' covenants - the International Covenant on Civil and Political Rights (ICCPR)(22) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)(23) - were adopted. Almost ten years later, the Covenants finally entered into force.
D. The International Covenant on Civil and Political Rights
The preamble to the ICCPR states that it takes into consideration the principles of the Charter of the United Nations, acknowledges the UDHR and considers the obligation of states under the Charter to promote the universal observance of human rights and freedoms.
Many of the rights articulated in the ICCPR follow the text of the UDHR. Dealing with religious freedom, Article 18 provides:
"1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or 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.
2. Noone shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
4. The states Parties to the present Covenant undertake to have respect for the liberty of parents and, where applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions."(24)
The ICCPR does not enshrine an exhaustive definition of rights to religious freedom.(25) However, like most human rights instruments, it also includes a prohibition on discrimination on grounds of, inter alia, religious belief.(26)
Although the Covenant provides for systems for monitoring the states' implementation of its provisions,(27) the only compulsory mechanism under the Covenant is the reporting system. States must submit reports on their national human rights situation every five years. In many respects, the Covenant lacks teeth; it is all bark and little bite. However, by publicizing the international standard to which states should aspire, the Covenant serves an invaluable function in developing and promoting human rights norms.
E. Other International Instruments
Since the foundation for contemporary human rights protection was prescribed in the UDHR, the ICCPR and ICESCR, a plethora of resolutions have been adopted by the United Nations reaffirming its position.
Most notably perhaps, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981(28) was passed because the General Assembly was concerned at the evidence of continuing intolerance and discrimination based on religion or belief in some parts of the world.(29) Essentially, this instrument provides for the right to freedom of thought, conscience and religion, and seeks to ensure that noone should be discriminated against because of their beliefs.
Article 2 defines "intolerance and discrimination based on religion or belief" to mean "any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis." Any such discrimination is denounced as a violation of the United Nations Charter and associated documents. It is considered to be "an affront to human dignity and a disavowal of the principles of the Charter of the United Nations" as well as an "obstacle to friendly and peaceful relations between nations."(30)
The General Assembly has recently reaffirmed this Declaration(31) in December 1997 in a resolution that recalled Article 18 of the ICCPR. The resolution focuses on encouraging states to provide within their legal systems true freedom of thought, conscience and religion and effective recourse against any violations of those rights.
As the only international document concerned solely with the practice of a religion or belief, it is both informative and of persuasive authority. It is an important breakthrough in the prolonged struggle to achieve for religious groups at least some of the protection accorded to racial and ethnic groups under international law.(32) However, despite many detailed reports and recommendations on religious rights,(33) the United Nations has been unable to codify the Declaration in a more binding format.
F. Summary of Contemporary International Provisions
In sum, all individuals today are entitled not to be discriminated against on grounds of their religious convictions or practices. This general prohibition on non-discrimination may be drawn from many human rights instruments. However, a state may impose restrictions on religious practices in situations where such practices would infringe the human rights of others or threaten state security.
With respect to specific rights, the Universal Declaration clearly has strong moral force: all states should aspire to its principles. The provisions of the ICCPR, on the other hand, are only binding on state parties. The designation of genocide as ius cogens clearly demonstrates the universality of the principles in the Genocide Convention.
Tibet in many respects symbolizes the problems with enforcing religious freedom: General Assembly Resolutions on Tibet from as early as 1959(34) have failed to realize true religious freedom in that territory, despite Chinese protestations to the contrary. The Declaration of 1981 provides a detailed exposition of the rights of religious groups, but has yet to be realized in an enforceable format.
Religious groups are entitled to the same fundamental human rights as everyone else; the problem lies with the specific protection of their freedom to manifest their religion.
4. Problems With The Present System
There are many inherent problems with the present system, not the least of which is the lack of an effective enforcement mechanism. A brief description of some of these problems follows here, although space constraints prevent a more detailed exposition.
A. Lack of an Effective Enforcement Mechanism
International law's conundrum is undoubtedly enforcement. While international law - particularly international human rights law - contains many norms, there is no coercive enforcement to ensure those norms are respected. There are alternate methods of obtaining compliance with international legal obligations, contingent on the fact that international law exists primarily through consensus, and therefore relies on the goodwill and cooperation of states. Following this principle, enforcement can occur through diplomatic techniques and through applying pressure through the threat of losing international reputation. The effectiveness of the embarrassment technique is illustrated by the fact that a state which appears to have violated international law will inevitably try and justify its actions under international law, and thereby maintain its legitimacy within the community of states. Nonetheless, while states continue to violate the norms of international law, the question of appropriate sanctions remains.
B. The Reliance on Exceptions to the General Rule
States wish to be regarded as acting in conformity with their human rights' obligations (especially those enshrined in the UDHR) at all times. Consequently, states rely on the few exceptions to the general principles to justify violations of their obligations. For example, the Chinese Constitution is unequivocal in its statement that its citizens should enjoy freedom of religious belief, providing that the state will protect "normal" religious activities.(35) However, following the wording of Article 18(3) of the ICCPR - if not the spirit - the Constitution goes on to say that religion may not be used to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Moreover, religious bodies and affairs are not to be subject to foreign domination. With respect to Tibet, the official line in the Peoples' Republic of China is clearly that religious (Tibetan Buddhist) activities disrupt public order by inciting unrest and that Tibetan Buddhism is subject to foreign domination, since the Dalai Lama and his "clique" are based in India.(36) In this way, the Chinese government can justify their actions under international law.
C. The Non-Universal Nature of Religion
The world is not homogenous. There is a plethora of religious beliefs, and they do not always live in harmony with each other. This causes difficulties when trying to draft legislation that is equally applicable to all religions and beliefs (including atheism). Many acts practiced and considered "normal" by religious groups are deemed unreasonable or even illegal by others. A prime example is female genital mutilation. This practice, usually associated with but not restricted to the Muslim faith, involves removing or reducing part of a girl's clitoris prior to puberty, which dulls feeling around the area. Within the Muslim faith this makes the female more attractive to men and is seen as a sign of cleanliness. However, the operation is often performed without proper medical instruments or supervision and can therefore be very dangerous. For this reason, female genital mutilation has been internationally condemned. Indeed, the practice has been banned by the World Health Organization.
Given the nature of religion, it is often very difficult to devise legally binding measures, which balance true freedom of religion for all with the rights of non-adherents. In fact, it is unlikely that specific rules that would be equally applicable to all religious groups in all states could be drafted. This problem is clearly compounded when many diverse religions are practiced within a state. For example, it may prove impossible for a state to recognize all holy days and religious festivals.
5. Possible Solutions
The problems may be many, but, it will be argued, they are not insurmountable.
The impact of the UDHR fifty years after its adoption is striking, as the frequency with which it is referred to on the international stage verifies. As the internationally agreed upon standard which all nations should strive to achieve, its value cannot be underestimated. Clearly, all states should be encouraged to ratify the ICCPR and accede to its Optional Protocols. This would result in a more detailed universal standard of human rights and finally realize the intention of the drafters of the Universal Declaration. In addition to this, it is to be hoped that the international community succeeds in drafting a legally binding instrument dedicated to the promotion of religious freedom and the prohibition of religious discrimination and intolerance. The advances in international human rights protection over the last fifty years probably exceed some expectations. Progress has been, and continues to be, made.
6. The United States Experience
Recent developments in the United States herald a different approach to irradicating cases of religious persecution throughout the world. In May 1997, Congressman Frank Wolf and Senator Arlen Spector introduced the Freedom From Religious Persecution Act, the main purpose of which is to impose economic sanctions on nations that condone or commit religious persecution. In his introductory speech, Congressman Wolf said, "We must not be silent while people are being killed, tortured and maimed on account of their faith."(37)
In order to combat religious persecution abroad, the legislation seeks to establish an Office of Religious Persecution Monitoring in the State Department, with its Director reporting to the Secretary of State and the President. This Office would provide a permanent mechanism for investigating religious persecution anywhere in the world. Moreover, the Bill provides for compulsory automatic sanctions against foreign governments supporting, or failing to prevent, religious persecution.(38)
The Director of the Office is required to identify products used for persecution which are on the existing crime control list kept by the Bureau of Export Administration. Working from such an existing list ensures the provision will not impose an excessive burden on exporters. The Director is also authorized to hold public hearings with testimony from independent human rights groups and others regarding evidence of religious persecution.
The Bill has received a great deal of support, particularly from Conservative Christian organizations, including the Christian Coalition, the Salvation Army, a number of Jewish groups and the International Campaign for Tibet. Lodi G. Gyari of the International Campaign for Tibet suggested that:
"The passage of the Freedom From Religious Persecution Act could send a message to Beijing that its hollow claims of religious freedom discredit the Communist Party and its leadership."(39)
The State Department was opposed to the Bill in its original form, believing that such sanctions could give rise to more rather than less religious persecution, as foreign governments may blame the "persecuted" people for the imposition of sanctions. Further, in some countries persecution is not instigated by the government, but by religious groups within the country. Therefore, sanctions could inhibit a foreign Government's ability to combat the problem. Politically, the State Department considered that the Bill in its original form may harm the Middle East peace process by imposing sanctions on the countries involved, and by giving greater emphasis to religious discrimination than other forms of discrimination. The State Department's reaction to the Bill would therefore have had the effect of creating a struggle between the State Department and the new Office of Religious Persecution Monitoring.
As a response to these objections, substantive changes were made to the Bill, mainly the fact that the President would be permitted to waive the sanctions if s/he believed it would "advance the objectives of the act." The President must provide a detailed explanation on why s/he thinks waiving the sanctions would help reduce religious persecution and describe other actions s/he intends to take in furtherance of this goal.
The Bill was passed on March 31, 1998 by a margin of thirty-one to five. It was debated and approved on May 14, 1998 by a vote of 375 to 41, and proceeded to the Senate. The Bill received a second reading on July 7, 1998 and was placed on the Senate legislative calendar under General Orders.(40)
This measure now contains provisions that the monitoring office will be situated in the State Department, and the Director of the Office will be required to make an annual report on religious persecution worldwide. Further, perhaps most importantly, the director will be able to impose automatic sanctions on offending states, for example by terminating U.S. foreign assistance and denying visas.(41)
While the Freedom From Religious Persecution Act was in the Houses, a competing Bill has been introduced to the Senate. Senator Don Nickles introduced the International Religious Freedom Act, which differs from the first Bill in a number of ways. It defines religious freedom violations more broadly; requires the President to choose from a list of sanctions; creates the post of ambassador-at-large in the State Department; creates the post of advisor on religious liberty on the National Security Council staff; and creates a seven person commission appointed by Congress and the President.(42)
These measures indicate one state's response to the concerns of the international community over the growing instances of religious persecution. The American system has many advantages, not least that the imposition of unilateral sanctions by such a powerful state will inevitably have far ranging repercussions. The U.S. is attempting to reduce the amount of religious persecution worldwide, but only time will tell how effective these pieces of legislation will be.
Today, as since time immemorial, religious groups are being persecuted and religious practices suppressed throughout the world. However, many of these instances are now being publicized and the international community is slowly taking note. It is clear that the goal of the founding members of the United Nations - universal rights and fundamental freedoms for all - has not yet been realized, although advances have been made. Many specialist texts have been adopted under the auspices of the United Nations with the intention of protecting vulnerable groups and consolidating the protection of human rights. General Assembly Declarations and Resolutions have condemned instances of religious persecution and clarified the standard of religious freedom and tolerance which states should strive to attain.
Initiatives like those in the United States have the potential to influence the importance accorded to religious freedom in the world. Although the operation of such measures remains to be seen, and under such a scheme acts of persecution would have to be proven without a doubt before any sanctions are even considered, the threat of losing trade with America may make some states reconsider their attitude. Perhaps results will follow if the U.S. approach proves successful and other states follow this lead.
It could be argued that the ultimate goal of the United Nations' documents is a distant pipe dream, one that is not conceivably realistic within our lifetime. Many states are doing as well as they can with the resources they have. Further, it must be remembered that religious freedom is not the only fundamental freedom or right which is consistently violated. Accordingly, it is not a priority in some states. Nonetheless, religious rights have been recognized in numerous international instruments, including the international bill of rights. It is therefore incumbent upon the international community to accord protection to those rights just as they accord protection to the other fundamental rights enumerated in international human rights instruments. While one certainty we are left with is that discrimination and intolerance based on religion still exists in the world, had it not been for the proclaiming of the UDHR fifty years ago, the situation today would surely have been worse.
(Edited by Alison Smith)
1. Benito, for example, says that "it is now generally accepted that "religion or belief" includes theistic, non-theistic, and atheistic beliefs": Elizabeth Odio Benito, Study On The Current Dimensions of the Problems of Intolerance and Discrimination on Grounds of Religion or Belief, U.N. Doc. E/CN.4/Sub.2/1987/26, 31 August 1986 at p3.
2. Brice Dickson, The United Nations and Freedom of Religion 44 Int. & Comp. L.Q. 327 (1995) at 327.
3. This is recognized in contemporary documentation. See Article 18 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171.
4. Brice Dickson, ibid, at p329.
6. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948).
7. The Universal Declaration was adopted as the true horror of the atrocities committed against the Jewish people during the Second World War was being revealed.
8. Jay A. Sigler, Minority Rights: A Comparative Analysis (1983) p41.
9. J.N. Figgis, Political Thought From Gerson To Grotius (reprint 1960) p5.
10. See, for example, the Peace of Westphalia, which ended the German Thirty Year War, the text of which is produced in part in Sigler, ibid, at p56.
11. See, for example, the Treaty of Lausanne, 30 January 1923, Article 1 of which provides that people of Greek Orthodox beliefs should be transferred from Turkey to Greece, while those resident within the newly delineated frontier of Greece who were followers of Islam could return to Turkey.
12. 77 U.N.T.S. 277. For a detailed exposition of the Convention, see Nehemiah Robinson, The Genocide Convention (1960).
13. Preamble to Genocide Convention, op.cit. note 12.
14. Article II, Genocide Convention, op.cit. note 12.
15. See Reservations to the Genocide Convention Case  I.C.J. Reps. 15 at p23, where the Court states that the principles underlying the Convention "are recognized by civilized Nations as binding on states, even without any conventional obligation."
16. P. De Azacarate, League Of Nations And National Minorities: An Experiment (1945) p6
17. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948).
18. Proclamation preceding the text of the Declaration, op.cit. note 17.
19. Natan Lerner, Group Rights and Discrimination in International Law (1991) p89.
20. See the dicta of Judge Ammoun in his separate opinion on the Namibia Case  I.C.J. Reps. 16, who states that the provisions of the Universal Declaration of Human Rights "can bind states on the basis of custom."
21. Article 18, UDHR, op.cit, note 17.
22. 999 U.N.T.S. 171.
23. 993 U.N.T.S. 3.
24. Article 18, ICCPR, op.cit. note 3.
25. Rather Article 18 (1) states the right "includes."
26. ICCPR, Article 2, op.cit., note 3.
27. The Optional Protocol enables individual complaints against acceding states to be brought before the International Human Rights Committee for consideration.
28. G.A. Res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981)
29. See the Preamble, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, ibid.
30. Ibid, Article 3.
31. G.A. Res. 52/122.
32. Lerner, ibid, pp88-89.
33. Elizabeth Odio Benito (1987), Angelo Vidal d'Almeida Ribeiro (resigned on grounds of ill health in 1993) and Abdelfattah Amor (1994). See generally, David Weissbrodt, The Three "Theme" Special Rapporteurs of the U.N. Commission on Human Rights" 80 Am. J. Int. L. 685 (1986).
34. See, for example, G.A. Res. 1353 (XIV) 1959, G.A. Res 1723 (XVI) 1961 and G.A. Res. 2079 (XX) 1965.
35. Article 36, 1982 Chinese Constitution.
36. More detailed information on the Chinese interpretation of freedom of religion (or otherwise) particularly in Tibet can be found in Religion In China Today (Donald MacInnins, ed. 1989) and Tenzin Gyatso, Freedom In Exile (1993).
37. Congressman Frank R. Wolf, from Ontario Consultants on Religious Tolerance, "US 'Freedom From Religious Persecution Act' - All Sides" (online), May 1998 (cited June 12, 1998). Available from World Wide Web: http://www.religioustolerance.org/rt_uslaw.htm.
38. The President, however, is permitted to waive these sanctions in cases of national security.
39. "US 'Freedom From Religious Persecution Act' - All Sides", op.cit. note 37.
40. H.R. 2431 Freedom from Religious Persecution Act 1998 from Bill Text of the 105th Congress (online) (cited July 9, 1998). Available from World Wide Web: http://thomas.loc.gov/home/clo5query.html#billno.
Cite as: Smith, Rhona and McIntosh, Carolyn Freedom of Religion: The evolution of a human right KO'AGA ROÑE'ETA se.i (1998) - http://www.derechos.org/koaga/i/smithr.html
Civil and Political Rights
Ko'aga Roñe'eta, Series I
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