Heiner Bielefeldt
University of Erlangen
A. Human rights as a precondition of lasting societal peace
Human rights contribute to strengthening the preconditions of sustainable societal peace. This purpose comes out very clearly in the first sentence of the preamble of the first international human rights document, i.e. the 1948 Universal Declaration of Human Rights (UDHR). It proclaims that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. This famous wording links peace to justice. Indeed, it is an old insight that real peace requires much more than the enforcement of some sort of public order. It must be a just order for which people can feel genuine loyalty, support and commitment. The UDHR furthermore links justice to freedom. For public justice to flourish, people must be free to voice their personal grievances without fear, to share their critical observations in public, to propose structural improvements, to build civil society organizations and monitoring institutions for that purpose, in short: to establish and cherish public democratic discourse. There can be no peace without justice, and there can be no justice without freedom. Human rights guarantee freedom in many ways and with many facets. Some rights enshrined in the UDHR carry the purpose of freedom explicitly in their titles: freedom of expression, freedom of assembly, freedom of association, freedom of conscience, and – last not least – freedom of religion or belief (FoRB). By institutionalizing the due respect for everyone’s human dignity, these various rights of freedom at the same time are part of an ongoing peace project.
The peace facilitated by human rights essentially differs from a political atmosphere of mere tranquillity. As Immanuel Kant ironically remarked in his famous essay on “Perpetual Peace” (1795), it would be foolish to mistake the silence of a graveyard for real peace. The situation in many countries may well be tranquil; but this does not necessarily mean it is peaceful. Tranquillity can have many reasons, including a climate of fear and intimidation, in which no one dares to speak out publicly. To use the Kantian metaphor, this would reflect a huge political “graveyard” rather than authentic harmony. A silence enforced by political coercion and intimidation, however, ultimately remains unreliable. In autocratically governed countries, many people may on the surface applaud the government. However, one may doubt that such applause can ever be genuine. Countless examples from history and present experience illustrate that an enforced public applause can quickly turn into the opposite, since a societal atmosphere marked by repression and intimation typically breeds mistrust and resentment, and this toxic mix can always explode.
The peace to which human rights aspire is the opposite of the tranquillity of a political graveyard. It is a peace based on respect for people’s diverse political opinions, critical assessments, religious convictions, individual passions, personal life-plans and biographies. In short, it is a peace, which accommodates the whole range of what defines the wealth of human existence. To be sure, such peace can at times become noisy, messy and a bit exhausting. However, it is so much more genuine and thus enhances the prospect of sustainability.
These observations also apply to freedom of religion or belief (FoRB), a right enshrined inter alia in the UDHR and in the International Covenant on Civil and Political Rights (ICCPR), in both frameworks listed under article 18. As part of the broader human rights approach, FoRB facilitates peaceful relations between people from most different religious and non-religious backgrounds. Yet here again, the concept of interreligious peace requires important additional qualifications. What it true for the human rights approach in general, has a bearing also on FoRB: it facilitates a peace based on respect for human freedom, thus accommodating the broad diversity of convictions, practices, rituals and ceremonies that happen to exist in society, provided they are compatible with the equal freedom of everyone else. In other words, the interreligious peace facilitated by FoRB will most likely have certain features of “messiness”. It may at times even become a noisy peace, which still is much better than the silence of a graveyard.
B. Human beings as right holders
A question often posed concerns the religions that deserve protection under FoRB. Which religions should receive public recognition, and which religions should benefit from FoRB? There is no answer to that question, because the question itself is wrong. Indeed, it displays a fundamental misunderstanding concerning the nature of FoRB. As an indispensable human right, FoRB follows the logic that defines the human rights approach in general, which is summarized in the famous first sentence of article one of the UDHR: “All human beings are born free and equal in dignity and rights.” This article starts with recognizing human beings as rights holders. Accordingly, right holders of FoRB are not religions in themselves, but human beings in their various relationships to religions or beliefs. Like other human rights, FoRB consistently focuses on human beings as the decisive right holders. They are the ones benefiting from the legal protection provided by FoRB and other human rights. Indeed, it is only through the lens of human beings that religious issues even become matters of human rights concerns.
This consistent focus on human beings as right holders has occasionally elicited objections, in particular coming from traditional believers. Some have expressed their fear that FoRB, as part of the broader human rights approach, promotes an anti-religious ideology, in which man counts more than God. Does FoRB reflect an “anthropocentric” bias in the sense of placing the human being in the centre of all concerns, at the expense of transcendent religious values? Does it weaken religious commitments by proclaiming the primacy of personal freedom over religious authorities? Some critics have gone a step further by arguing that FoRB reduces religion to just another commodity in a worldwide consumer market where everyone can shop around and look for their personal spiritual wellness. Yet such criticism misses the point entirely. Far from marginalizing or trivializing religion, FoRB does take religion seriously. Taking religious seriously, however, implies a clear awareness that religion as phenomenon always exists in the plural, i.e. in the shape of different religions (with an “s” at the end of the word). Apart from the existence of most different religions, there are also different viewpoints and interpretations even within one the same religious traditions. Taking religious seriously thus leads us to realizing the existing broad diversity between and within religions.
This insight has far-reaching consequences for the conceptualization of FoRB. Let us assume we would want to provide legal protection directly to religions. In that case, we would, first of all, have to define which of the competing religious convictions, interpretations, readings and practices are worthy of such protection. This would necessarily amount to singling out certain religions at the expense of others. The result would be discrimination, resentment, stigmatization and increasing polarization. Numerous examples from different parts of the world sadly illustrate that this danger is not merely hypothetical. Now, the decisive point is that the human rights approach takes an entirely different path by focusing consistently on human beings rather than on religions in themselves. What all the various religious traditions, confessions and sub-confessions, interpretations etc. have in common is the fact that they held by human beings – as individuals as well as in community with others. Human beings are the ones professing and practising religion in various ways, and at the same time, they are the ones entitled to human rights protection when doing so. The focus on human beings as right holders is the only way to appreciate and accommodate the broad diversity that exists in the area of religious convictions and practices.
This consistent focus on human beings as right holders of FoRB broadens the scope of respected convictions and practices far beyond any lists of “established religions”, “traditional religions”, “classical religions” as they exist in many countries. Some Middle Eastern States promise respect for religious freedom in their constitutions while limiting the number of recognized religions to just two or three: Islam, Christianity and (in theory) Judaism. Other States recognize five or six different religions or limit respect to those religions which have received an official status position. However, one again this has nothing to do with FoRB. Instead, it displays a fundamental misunderstanding. In keeping with the logic of human rights, FoRB respects the most diverse self-understandings and self-definitions of human beings in the area of religion – way beyond any State-defined list of recognized or official religions. What matters, above all, is the self-understanding of human beings in this broad area. The self-definition of human beings concerning matters of faith must always be the starting point (albeit not necessarily the end of the story) when it comes to conceptualizing FoRB. However, this opens up a broad variety of options.
The UN Human Rights Committee, i.e. the expert body in charge of monitoring the implementation of the ICCPR has explicitly corroborated such a wide and inclusive understanding of FoRB. In its General Comment No. 22 on article 18 (i.e. the article concerning FoRB), the Committee points out: “Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed.” These are clear words. The General Comment goes on: “Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.” One should add that FoRB likewise covers members of large or small communities, minorities as well as minorities within minorities, converts or re-converts, dissenters or other critical voices and, last but not least, people belonging to movements deemed “deviant” by members of some mainstream religious organizations. The various UN Special Rapporteurs on FoRB (including myself) have endorsed this open, inclusive understanding.
C. Dimensions and limitations of freedom
FoRB protects different dimensions of human freedom in the area of religion and belief. For example, it includes everyone’s freedom to search for meaning in life; to communicate convictions or doubts openly; to join a religious group or to stay within the community, in which they have grown up; to change or abandon their faith; to invite others to reconsider their religion or belief; to exercise rituals alone and in community with others; to express public criticism of a religion or to defend religion against such criticism; to initiate and educate their children in conformity with their own religious traditions; to receive and impart information on religious issues; to import religious literature from abroad and circulate it; to shape their lives in conformity with religious prescripts; to establish a religious infrastructure, including houses of worship, schools and charity organizations; to recruit clergy in conformity with the self-understanding of the community etc. Any list of the various components belonging to that right will necessarily remain non-exhaustive, since FoRB receives its practical contours in response to ever-new challenges, which may lead to a “discovery” or “re-discovery” of aspects that had been previously ignored.
Rights of freedom leave the decision as to whether and how to make use of that freedom to the rights holders themselves. That is why FoRB also includes the right not to profess a religion or belief, not to show any interest in such issues, not to participate in any religious ceremonies, not to observe any dietary or other religious rules, not to have one’s children educated in a particular religion etc. Freedom from religion is a logical ingredient of freedom of religion or belief itself, because it follows from the nature of a right of freedom.
Many critics of human rights have pointed out that these rights one-sidedly privilege the individual – possibly at the expense of community interests. This objection warrants a word of clarification. What is true is that all human beings should be able to benefit from these rights, prior to and independent of, any particular group membership. To cite again from the preamble of the UDHR, human rights are rights of “all members of the human family”. In this sense, one can say they are rights of every individual person. However, rights of individual persons do not per se privilege an “individualistic” life-style, i.e. a way of life detached from community commitments. The amalgamation of rights of the individual with a particular “individualistic” way of life has become a major source of confusion. In fact, human rights do appreciate the communitarian dimensions of human life. To mention just a few obvious examples, freedom of expression can only flourish in a discourse community of speakers and listeners; the rights to assembly and association are per definition exercised jointly with others; habeas corpus rights provide for the preservation of elementary social ties even in situations of arrest and detention; the right to form trade unions facilitates practical solidarity among colleagues at the work place; and the perhaps most obvious example is the right to marry and found a family. As the wording of articles 18 of the UDHR and ICCPR shows, freedom of religion or belief, too, has an explicit community dimension; it protects religious or belief manifestations “in worship, observance, practice and teaching” exercised “either individually or in community with others and in public or private”.
Moreover, not only do human rights always relate to communities in order to become applicable in practice; they may also serve as a driving factor for reforming communities. They can contribute to transforming authoritarian regimes into democracies; they can help broaden the space for public critical discourse; they can play a crucial role in reshaping the understanding of marriage and family life by demanding respect for women’s rights and diverse gender identities; they can back up the development of trade unions, political associations and civil society organizations; they can support children in their rights to education and participation in public life; and they can serve as normative reference for the full inclusion of persons with disabilities in a gradually developing barrier-free society.
FoRB, too, harbours a potential for triggering healthy community reforms. Religious communities may learn to appreciate internal diversity as potential source of strength, and they may discover – or re-discover – a truth rooted in many traditions that authentic faith always requires respect for personal freedom. Moreover, the awareness that members have the possibility to abandon the community can motivate religious leaders to reach out to neglected followers, be more attentive to people’s real needs and yearnings and generally become more persuasive in their teaching and preaching. Respect for individual rights can thus at the same time be beneficial for the development of communities.
An issue, which always comes up in discussions on rights to freedom, is the need for some limitations. It is actually a truism that freedom cannot be completely unlimited, since making use of one’s own freedom may negatively affect the rights and freedoms of others. However, the general need for some sort of limitations can easily become a pretext for imposing arbitrary restrictions. Countless examples demonstrate that this also happens in the field of FoRB. In many countries overly broad “security”, “harmony” or “morality” interests have been invoked to curb religious criticism, discriminate against minorities and tighten control over independent religious communities. The question of how to draw limits and how to prevent the frequent abuse of limitation clauses is one of the most sensitive issues in human rights law. Few questions are of more immediate relevance for human rights practice.
A first step towards preventing the arbitrary invocation of limitation clauses by governments is by insisting that restrictions always require specific arguments. The decisive point is that the onus of proof falls on those who argue on behalf of limitations, not on those who defend or practise an internationally guaranteed right to freedom. FoRB and other human rights are rights of freedom, after all, and the thrust of the entire human rights systems aims at the facilitation of the maximum possible freedom that is compatible with everyone else’s equal freedom. The relationship between freedom and its limitations therefore must remain a relationship between rule and exception. In case of doubt, the rule prevails, and exceptions always require an extra burden of argumentation, both at the level of empirical evidence and at the level of normative reasoning.
Secondly, for limitations to be legitimate, they must meet a number of criteria. In the case of freedom of religion or belief, its internal dimension called “forum internum” even has an unconditional protection, according to article 18 paragraph 2 of the ICCPR which states that “[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice”. This even applies in extreme situations, such as a state of public emergency. Brainwashing or other forms of encroachment into the nucleus of a person’s moral or religious identity can never justified. With regard to external manifestations of a religious or philosophical conviction (in the “forum externum”), the situation is slightly different. However, limitations concerning external manifestations of religion or belief can only be permissible if they meet all the criteria set out in article 18 paragraph 3 of the ICCPR. Accordingly, limitations must be legally prescribed, and they must be clearly needed to pursue a legitimate aim – the protection of “public safety, order, health, or morals or the fundamental rights and freedoms of others”. In addition, restrictions must remain with the realm of proportionality, which inter alia means they must be limited to a minimum degree of interference and must be conducive to promoting the legitimate purpose they are supposed to serve. These criteria are prescribed with the purpose of safeguarding the substance of FoRB even in situations of a direct collision with other rights or important public interests. Again, the invocation of unspecific purpose like promoting societal harmony cannot count as a sufficient argument e.g. for limiting the rights of some minorities.
Thirdly, limitations must be connected with the provision of legal remedies. Everyone who thinks his or her rights have inappropriately been infringed upon must have access to courts, ombuds-institutions, national human rights institutions or other mechanisms. The availability of an accessible, efficient and independent system of legal remedies is of the essence in any attempt to safeguard human rights, including FoRB.
D. Equality and non-discrimination
According to article 1 of the UDHR, as quoted above, freedom and equality are two closely interconnected human rights principles. Without the principle of equality, rights of freedom could remain privileges for the happy few, and without reference to freedom, equality could be mistaken for sameness or even uniformity. In order to avoid such misunderstandings, freedom and equality should always be seen in close conjunction. This also applies to FoRB. Obviously, FoRB is a right to freedom, as indicated already in its title, but it is also a right to equality and non-discrimination. This dimension has received specific recognition through the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted by the UN General Assembly in November 1981. The Declaration employs strong language when proclaiming: “Discrimination between human beings on grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights […].”
In the framework of human rights, equality can never mean sameness or identical treatment. This follows from the interrelatedness of equality and freedom, as emphasized above. Accordingly, human rights empower people freely to pursue their diverse life plans, freely to express their various political opinions or freely to manifest their different faith-related convictions and practices. Such respect for freedom, however, instead of privileging certain people of status and rank, is due to everyone equally. Hence, the guiding idea is equal freedom for all. Working for an equal implementation of human rights of freedom for everyone will thus make societies both more egalitarian and at the same time more diverse or pluralistic. A few years ago, the Council of Europe launched a pro-diversity campaign under the egalitarian motto “all different, all equal”. FoRB specifies this idea of an egalitarian diversity for the field of religions and beliefs.
This egalitarian understanding of FoRB has a bearing on the State. In order to be able to operate as guarantor of FoRB for everyone equally, the State should not exclusively identify itself with one particular religion or belief (or one particular type of religions) at the expense of equal treatment of the follower’s other faiths. Taking the human rights approach seriously requires providing an open framework in which religious and belief pluralism can unfold freely and without discrimination. This doubtlessly presents a challenge to countries in which religions and State institutions are closely intertwined, in particular countries with a tradition of an official religion or State religion.
The opposite of a system defined by an official religion seems to be a system where State and religion are “separated”. Rather than using the term “separation”, which has caused many misunderstandings, I prefer the language of “creating and uphold a distance” between State and religion. The concept of “separation” may conjure up ideas of a compartmentalization or fragmentation of the human life world, with the effect that religion ceases to play a positive role in public life. This cannot be in the interest of FoRB. For the sake of conceptual clarity, we should see the element of distance between State and religion as the negative flipside of a positive project, namely, the provision of an open space for the unfolding of religious and belief-related diversity, in a spirit of freedom and equality. Without the element of distance, such an open and equal space would be from the outset inconceivable, because a State, which understands itself as immediately linked to one particular religion or one belief-system cannot function as a trustworthy guardian of equal FoRB for all. However, when trying to fulfil the task of providing place for all the State has to do more than merely (negatively) refraining from getting involved with religion. Apart from maintaining the necessary distance, what is required are positive investments in all areas of society, such as education, media word, family laws, interreligious dialogue etc. A State dedicated to FoRB must pro-actively engage with religions and beliefs, for the simply reason they are part of the society, which the State is support so serve. Instead of protecting religious truth claims or collective religious identities, however, what the State ought to do is protect everyone’s human right to FoRB.
E. Not just a minority issue
FoRB is frequently seen as a right mainly concerning religious minorities. However, while not being entirely wrong, this perception is much too narrow. It is certainly true that religious minorities deserve special attention. Not only may their situation be marked by increased vulnerability; their fair or unfair treatment is also indicative of the general atmosphere in a society. Examples from all over the world sadly testify that many members of religious minorities suffer discrimination, stigmatization and sometimes even outright persecution. Minorities can become targets of hate-speech and hate-crimes and disproportionately figure as victims of human rights violations. When talking about minorities, one should always include minority movements in majority religions as well.
While the special attention given to the situation of minorities is justified, it would be wrong to forget the situation of majorities. FoRB has much to offer for members of majority religions as well. By proclaiming equal freedom for everyone in the broad area of religious diversity, FoRB challenges existing hegemonies, power asymmetries and questionable forms of entanglement with those in power. In this context, FoRB can serve as an efficient tool to tackle corruption and other pathologies, which often undermine the credibility of religions, especially in countries where they occupy a strong societal position. One example that comes to mind is the utilization of mainstream religion for purposes of national identity politics. The immediate victims of religiously colored identity politics are minorities, in particular those who do not fit into the predominant religious-political narrative. Yet such ways of employing religion for political gains, has consequences for members of the majority, too. The price which they typically have to pay, at least in the long run, is a loss of credibility and persuasiveness of their religious messages. Minorities and majorities can thus both – albeit in different ways – benefit from FoRB. For members of minorities under threat, FoRB can become an instrument in their struggle to survive and develop. The significance of FoRB for members of strong majorities may at first glance be less obvious. Yet this does not mean that it is less real. After all, FoRB is a right to the benefit of all “members of the human family”: traditional believers and non-traditional believers, members of majorities and minorities, mainstream and dissident movements. By institutionalizing respect for all, FoRB – in conjunction with other human rights – improves the conditions for fair cooperation, societal justice and sustainable peace.