Brett G. Scharffs
International Center for Law and Religion Studies J. Reuben Clark Law School
of Brigham Young University, USA
A. Introduction
This chapter is an introduction to Article 18 of the Universal Declaration of Human Rights (UDHR) and other human rights institutions and provisions that bear directly upon freedom of religion and belief. This chapter should be read in conjunction with Chapter __, which is a more general introduction to the history, drafting and key provisions of the UDHR.
B. Article 18 of the Universal Declaration of Human Rights
The foundational text for the international human rights approach to freedom of religion is found in Article 18 of the UDHR, adopted by the United National General Assembly in 1948.
Article 18 states:
Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and 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.
Examining the Article word by word sheds valuable light on the meaning and scope of the right to religious freedom.
Everyone:
This means all human beings, not only citizens or permanent residents but nonresident aliens and stateless persons as well, have the right to freedom of religion or belief. So do foreign religious leaders, religious personnel, and missionaries. Human beings do not lose their rights by taking on religious roles.
Has:
The state does not bestow religious freedom, freedom of thought or freedom of conscience. Legislation may implement, but it does not create these freedoms. Individuals and religious groups possess these rights simply by virtue of their human nature and their status as human beings. The responsibility of the state is to recognize and protect these freedoms.
Right:
Religious freedom is a right. It is neither a privilege nor a gift, nor a mere interest. A right is something that the state has a responsibility to respect and protect.
Freedom:
Religious liberty is a freedom. It is not reducible to equality or equal treatment, although equal treatment is certainly important. Article 18 does not permit states to treat all religion equally poorly. Freedom of thought, conscience, and belief is a freedom that states are obliged to protect.
Thought, Conscience and Religion:
This formulation indicates that the scope of protection is broad rather than narrow. The scope of coverage encompasses more than freedom of religion. It includes freedom of thought, conscience, and religion. The Universal Declaration’s drafters wrote this section intentionally broadly to encompass a wide spectrum of religious and nonreligious beliefs, including agnostic and atheistic beliefs. While the sophisticated and important arguments that exist concerning what is and is not a religion can be important, for example, for determining whether or not an organization is eligible for a tax exemption, from a human rights perspective, whether a set of beliefs qualifies as a religion or not does not matter because the protection is the same for thought, conscience, and religion. In comment number 22, discussed in greater detail below, The Human Rights Committee stated, ‘Article 18 protects theistic, nontheistic 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.’
Change:
Most religious human rights experts consider the right to convert from one religion to another, or to have no religion, as fundamental to the freedom of religion and belief. Not all traditions recognize conversion as a fundamental right, however. Article 18’s recognition of the freedom and right to change one’s religion divided nations with large Muslim populations as the United Nations voted on the Universal Declaration. Saudi Arabia eventually abstained from the vote on the Universal Declaration, and one of its primary reasons was the inclusion of the word ‘change’ in Article 18.
Importantly, other Muslim countries did not object to the inclusion of the right to change religion or belief. For example, Muhammad Khan, the foreign minister of Pakistan and a Muslim, promised the full support of his country. Noting that Islam itself is a proselytizing religion, Khan expressed his view that the freedom to change one’s religion was consistent with Islam and that faith could not be obligatory. Khan quoted a passage from the Quran, ‘Let him who chooses to believe, believe, and let him who chooses to disbelieve, disbelieve,’ while making his case. This illustrates that the right to change one’s religion from an Islamic perspective may most persuasively be advocated by Muslim scholars interpreting and understanding their own tradition.
In Community with Others:
Freedom of religion or belief protects activities that have a social or communal dimension. Religious freedom is not something the Universal Declaration envisions as a private or individual right only, but also a right that necessarily includes community. Article 18 explicitly protects this communal dimension.
Manifestation:
The UDHR includes the protection of manifestations, not just the protection of belief. This means there is also a protection of actions motivated by belief. Freedom of religion or belief includes the freedom to manifest one’s religion in teaching, practice, worship and observance. This protection is broad, and intentionally so, and it is more than freedom to worship. This includes the freedom to teach, practice, worship, and observe one’s religion, and intentionally or unintentionally reducing freedom of religion to only one of these components threatens freedom of religion. These terms describe in an expansive way general types of conduct embraced within the general category of religious activity. They should be viewed as being representative rather than exhaustive.
Human rights, however, are not without limitation, and in the UDHR the limitations clause is found in Article 29. Its text states that, ‘in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’ In later instruments, the limitations clause with respect to religion occurs within the provision itself, but in the Universal Declaration, the grounds for limitations are found in Article 29, which applies generally to the rights and freedoms identified in the UDHR.
The limitations clause envisions that, in the exercise of rights and freedom, everyone shall be subject only to such limitations as are determined by law (a rule of law constraint), solely for the purpose of (there are limits on the purpose for which rights may be limited, and these are) securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements (limitations must be required by principles of justice) of morality, public order and the general welfare in a democratic society. The limitations clause not only identifies the legitimate bases for limiting freedom of thought, conscience and belief, it also articulates the limits that apply to those limitations. Most importantly, the bases for limitation are carefully enumerated, and those bases for limitation are limited by what is genuinely needed to meet the ‘just requirements’ of these legitimate bases for limitation.
C. Other International Human Rights Instruments on Freedom of Religion and Belief
1. European Convention on Human Rights (ECHR), 1950
As discussed in Chapter __, the ECHR, adopted in November 1950, is very similar to the UDHR in its content and tone. The European Court of Human Rights’ jurisdiction applies to Council of Europe members. This includes forty-seven member states in Europe, Turkey, and the former Soviet Union.
Article 9 of the ECHR addresses freedom of thought, conscience and religion. It states that ‘everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.’ Its language closely parallels the language of the UDHR, as do its articulated grounds for limitations on freedom of religion. ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’
Analytically, the rights under Article 9 are divided into what are sometimes called ‘first tier’ or ‘paragraph one’ rights, and ‘second tier’ or ‘paragraph two’ rights. The first tier rights are sometimes referred to as relating to the forum internum, or internal forum. They include freedom of thought, conscience, and religion and the freedom to change religion or belief. The second tier rights, relating to the forum externum, or external forum, relate to manifestations of religion or belief. This distinction is similar to the belief/action distinction found in US Constitutional law jurisprudence. The important point is that the internal forum may not be subject to limitation legally. The key inquiry often becomes, ‘What is included in the internal forum?’ While the boundaries may be indefinite, under the terms of Article 9, it includes freedom of thought, and of conscience, and the right to change religion and belief.
The external forum, on the other hand, is subject to limitation. The forum externum includes actions and manifestations of belief. The permissible bases for limitation are carefully defined. We may say there are strict limitations on the legitimate limitation of freedom of religion and belief.
The Convention recognizes that religious freedom rights may be exercised either alone or in community with others; there is a communal aspect to the rights, which may be manifested in public or private. The structure of this right rejects a stark dichotomy between public life and private life, which might result in religion being relegated to the private realm. The definition of what counts as a manifestation of thought, conscience and religion is explicitly and intentionally broad. Permissible manifestations include not just expressions of belief, but also worship, teaching, practice, and observance. This language is intended to be quite encompassing of various types of religious expression and exhibition.
Clause two or ‘paragraph b’ is known as the ‘limitations clause.’ Unlike the nonderogable or ‘first-tier’ rights of clause one, this clause, beginning ‘freedom to manifest one’s religion or beliefs,’ underscores that state limitations must be imposed only on manifestations of belief. Clause two then provides an exclusive list of the permissible bases for limitation. First, those limitations must be prescribed by law. Second, they must be ‘necessary in a democratic society’ and be based upon one of the legitimate grounds for limitation, namely public safety, protection of public order, health and morals, and the protection of the rights and freedoms of others. Almost all of the action in the Article 9 jurisprudence of the European Court of Human Rights focuses on the phrase ‘necessary in a democratic society.’ Not every case, but virtually every case in the freedom of religion and belief jurisprudence of the Court, turns on that part of paragraph two.
In the European Court of Human Rights’ jurisprudence, analyses of religious freedom claims almost always take the same form. On their face, the Court’s decisions are very formulaic and almost always follow an identical template for analyzing religious freedom claims. As a practical matter, this means that the particular facts and circumstances of each case are very important in determining the outcome of the cases.
The first step is to ask whether is to ask whether or not there has been an interference with religion, thought, or conscience by the state. This is a threshold question, and if there has been no interference with the right to manifest one’s thought, conscience or religion, then the case is dismissed.
If the answer is, ‘yes, there has been an interference,’ then the second step is to ask whether or not the limitation is ‘prescribed by law.’ This imposes a rule of law constraint upon limitations. The legal prohibition must be accessible, sufficiently precise, and sufficiently foreseeable in order for people to plan their activities. If the limitation is not prescribed by law, then the state loses and the applicant wins. A law that is unduly vague may fail the ‘prescribed by law’ test.
If the answer is ‘yes, the limitation was prescribed by law,’ then the third question is whether one of the legitimating grounds are present as a basis for justifying the limitation. The legitimate bases for limitation are set out in paragraph b of Article 9, and include the ‘interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ These bases for limitation appear to be quite broad, and there is a legitimate concern that if these grounds for limitation are construed broadly, then Article 9 will afford very little protection of freedom of thought, conscience and religion. The exception we might fear will swallow the rule. Furthermore, although the Court is usually quite clear about which legitimating aim justifies the limitation, the Court often is quite deferential to the state’s assertion of a legitimate aim. Thus, step three in the analysis does not result in many defeats for the state.
The important point, however, is found in the final step of the analysis. If the answer is ‘yes, there is a legitimating ground for the limitation,’ then the fourth and final enquiry is whether the limitation is ‘necessary in a democratic society.’
This final step of the analysis is by far the most important in European Court jurisprudence. The majority of the analysis occurs at this final step. Of the more than forty cases that have been decided interpreting Article 9 by the European Court, the vast majority are decided based on whether the limitation is necessary in a democratic society. Therefore, the issue of whether a limitation is or is not genuinely necessary is of great importance.
‘Necessity’ results in a multi-part enquiry that represents the gravamen of most Article 9 jurisprudence. There is some debate about whether the addition of the words ‘in a democratic society’ results in a narrower or wider set of limitations than under, for example, the UDHR, where there is a necessity limitation, but it is not tied specifically to democratic society. Because it is possible to argue that, in order to guarantee the perpetuation of democracy, certain types of limitations (on religious political parties, for example) may be especially needed, perhaps there is a sense in which democratic necessity broadens the scope of what is a permissible limitation. But in another sense, we would expect a democracy to be less tolerant of limitations on fundamental rights than other forms of government, so the modifier ‘in a democratic society’ may at times broaden the scope of what is a protected right.
An important component of the determination of whether a limitation is really ‘necessary in a democratic society’ is the idea of a ‘margin of appreciation’ that is afforded by the Court to member States for protecting human rights. ‘Margin of appreciation’ is a term of art that reflects a recognition that there may be permissible cultural and legal variations with respect to human rights issues. The margin of appreciation is a kind of zone of deference that the Court affords to states in determining whether or not limitations are really necessary or not. Critics have noted that it is difficult to ascertain in advance whether or not a state is operating within its margin of appreciation in a particular case. The Court almost always will go to great lengths to acknowledge the margin of appreciation that they have taken into account, perhaps especially when the Court is in the process of finding a country to be in violation of Article 9.
In analyzing necessity, the Court typically – though not always – asks two questions: first, is the limitation justified in principle, i.e., does it correspond to a pressing social need? Second, is it proportionate to the legitimate aim pursued? The large majority of Article 9 cases ultimately turn on this question of proportionality. This enquiry resembles, though is not identical to, the familiar American constitutional questions of whether a restriction on a fundamental rights reflects a ‘compelling state interest’ and represents the ‘least restrictive means’ of achieving the end in question. Thus, the Court engages in conscious and explicit balancing and almost all of its decisions come down to a discussion of proportionality.
The European Court of Human Rights’ jurisprudence recognizes three primary institutional norms that effect religious freedom- registration, autonomy, and equal treatment. In a series of cases decided over the past decade, the Court has made it clear that, while the ECHR recognizes registration requirements, state-created obstacles to registration violate Human Rights guarantees of freedom of religion and association. On the subject of institutional autonomy, religious institutions should have the right to control their own internal affairs, determine doctrine, choose and appoint leaders, and employ personnel based upon religious qualifications. The Court’s jurisprudence regarding equal treatment does not always entail identical treatment, but non-discrimination norms prevent states from discriminating among religious groups. Generally, when cooperation exists between some religions and the state the general trend is towards greater inclusiveness of other religions.
The European Court of Human Rights also recognizes three primary norms of individual religious rights-belief and expression, choosing and changing religious beliefs, and accommodations. At the core of freedom religion and conscience is the absolute protection of the internal forum of belief. Freedom of expression, the right to express and propagate religious beliefs, is also well defined and well protected. Improper proselytism is narrowly defined and focuses on coercion. Although controversial in some quarters at the time of the drafting of the UDHR, it is well established in European Court of Human Rights jurisprudence that freedom of religion includes the right to change one’s religion or belief, including the right not to believe. The right to conscientious objection is increasingly recognized as an important dimension of freedom of religion and belief. Claims of conscience should be accommodated when doing so is possible without incurring undue cost or difficulty, especially when it can be done without compromising public order, and the rights and freedoms of others.
2. International Covenant on Civil and Political Rights (ICCPR), 1966
As noted in chapter __, the UN Human Rights Commission planned to follow up the non-binding UDHR immediately with a binding, universal convention. However, ideological differences between the Western states and the Soviet bloc prevented progress on a single covenant. In 1951 the Commission decided to adopt the two-covenant approach championed by the Western states and resumed drafting work.
The process of hammering out the two conventions took an additional 15 years. The resulting covenants were titled the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Article 18 is the Covenant’s provision relating to freedom of religion or belief. It states, ‘[e]veryone 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…’ Unlike the UDHR, however, the word ‘change’ is missing. The drafters avoided the word ‘change’ to accommodate Muslim sensitivities, but they drafted it in such a way that the idea of the right to change is built into the text through the idea of having or adopting a religion or belief of one’s choice. Therefore, the Human Rights Committee interprets Article 18 as including the right to change, but it is important to note that this is the point of most sensitivity, and the right to change does not appear in that word in the binding legal instrument. It does, however, occur in other binding legal instruments, such as the European Convention. Article 18 goes on to say that ‘No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief…’ The limitations must be prescribed by law and must be necessary. This structure of limitations is very similar to the European Convention.
A number of other provisions of the ICCPR are related to freedom of religion, including Article 19 (freedom of expression, including the right to seek, receive and impart information and ideas of all kinds), Article 20 (which prohibits advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence), Article 21 (the right of peaceful assembly), and Article 27 (the right of ethnic, religious and linguistic minorities to enjoy their own culture, to profess and practice their own religion, and to use their own language).
As noted in Chapter __, the Optional Protocol to the ICCPR also has significant implications for freedom of religion.
3. Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, 1981
While work was underway to finalize the international covenants, efforts moved forward to adopt conventions on the elimination of racial discrimination and elimination of religious intolerance and discrimination. The first of these efforts was successful, resulting in 1965 in the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Politics and the complexity of the issues resulted in an inability to adopt a convention on freedom of religion, and a non-legally binding Declaration was adopted by the UN General Assembly in 1981, the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (the ‘1981 Declaration’).
While it lacks the same legal force as a treaty, it remains a persuasive legal document. It repeats a number of provisions from earlier binding documents, so to the extent that it repeats binding commitments, they remain binding. Article 6 of the Declaration also addresses freedom of thought, conscience, or belief specifically. The Article protects the right to worship or assemble, to establish and maintain places of worship, maintain appropriate charitable or humanitarian institutions, obtain religious articles such as clothing or books, to disseminate publications, and to teach a religion or belief in places suitable, to receive voluntary financial contributions. It also addresses the ability to train, appoint, elect or designate appropriate leaders, have and observe days of rest and holidays, and establish and maintain communications with individuals and communities in other nations.
As a practical matter, when dealing with specific difficulties, the 1981 Declaration is a helpful way of facilitating a conversation. While demanding these things as legally binding international treaty rights is often practically impossible and unwise, one can identify them as the widely held and recognized. The UN adopted and approved interpretations of what the scope and content of the freedom of religion or belief is. It can become a useful way of facilitating and progressing conversations. Therefore, attorneys who often work in this area who possess a real familiarity with the 1981 Declaration as a practical matter can be very effective.
D. The Role of Nongovernmental Organizations in Promoting Freedom of Religion and Belief
Nongovernmental organizations (NGOs) play a significant role in promoting freedom of religion and belief, as well as other human rights worldwide. NGOs that promote religious freedom are often established as nonprofit organizations and receive funding from membership dues, grants from foundations, and private donations from individuals, corporations, religious communities, governments, or intergovernmental or interchurch organizations. Individual religious communities, which also qualify as NGOs’, may also promote religious freedom directly or indirectly. Religious groups may also combine their efforts and form broader coalitions, or fellowships, such as the World Council of Churches or the Council of European Churches.
NGOs use a variety of methods to further religious freedom. These methods include ‘standard setting, violation reporting, providing technical advice, lobbying and agenda setting, conflict resolution, networking, facilitating interfaith cooperation, and education.’
In monitoring compliance with religious freedom standards and calling attention to violations, NGOs significantly supplement the work of states, and can sometimes focus on issues that states may not address. In some instances, NGOs contribute to state and international reports, such as those issued by the UN Special Rapporteur on Freedom of Religion or Belief and the US Commission on International Religious Freedom. In addition, NGOs often circulate their own reports on the status of religious freedom and problematic cases.
Elizabeth Clark notes that ‘NGOs have vast potential to promote freedom of religious belief.’ She writes, ‘Success in promoting socialization of human rights norms requires a combination of compliance monitoring, shaming, moral persuasion, use of leverage, academic research, policy-making efforts, and many other activities. While a view of the spectrum of human rights NGOs seems to reveal a multiplicity of organizations and perhaps mere chaos, the natural disorderliness inherent in the independent ordering of NGOs can prove to be extremely effective when they work together.’
E. The Value of Religion and Religious Freedom
Despite the restrictions most people and nations experience on freedom of belief, religious freedom yields instrumental and non-instrumental benefits. Religious freedom, for example, yields a wide variety of instrumental goods because it correlates with increased charitable giving and volunteerism, contributes to the development of democratic values such as reflective thinking, generosity, altruism, and reverence, and provides an important component of a nation’s social fabric. Religious freedom also builds set of norms, relationships, and institutions that strengthen a society’s ability to cooperate; it transcends self-interest and increases social capital, promotes democracy, assists in mediating an end to violent conflicts, providing social services, encouraging political moderation, and corresponds with higher income levels. Religious liberty further reduces violence associated with religion, increases national security by undermining self-reinforcing narratives of persecution by minority groups, and correlates with other freedoms and social goods. Moreover, as Brian Grim and Roger Finke document in their book, The Price of Freedom Denied, ‘religious freedom is associated with higher overall human development, as measured by the human development index published by the United Nations Development Program.’ Thus, religious freedom is part of a ‘bundled commodity’ of human freedoms that are associated with many positive outcomes.’
The non-Instrumental value of religious freedom address less tangible benefits. Hans Joas articulated this as following: ‘The question is not ‘Is religion useful?’ but ‘Can we live without the experience articulated in faith, in religion?’’ Non-instrumental benefits focus on things like the value of self-transcendent experiences and the pursuit of truth.
F. Conclusion
It is easy to think of human rights protections, including those directly addressing freedom of thought, conscience, and religion, as general abstractions. But they are also legally binding treaty obligations, as well as legal provisions that are instituted at every level of law. Many of the most effective mechanisms for the implementation and protection of freedom of religion exist in national laws, including Constitutional provisions, as well as state, provincial, and municipal law, such as zoning regulations. Likewise, the implementation of human rights norms does not always take place through the formal legal system.
As the preamble of the UDHR recognizes, it is intended to be ‘a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance….
Ultimately, human rights are most likely to be recognized and respected not just as the result of legal implementation, but through teaching and education. Only as human rights are internalized in the hearts and minds of human beings is their universal and effective recognition and observance likely to occur.