Brett G. Scharffs
International Center for Law and Religion Studies J. Reuben Clark Law School
of Brigham Young University, USA
Introduction
This chapter is a basic introduction to the Universal Declaration of Human Rights (UDHR). It focuses on the aims of the document, its background context and the drafting process, as well as certain key provisions. The chapter also includes a brief introduction to other international human rights instruments that were built upon the foundations of the UDHR as well as the role of UN and non-governmental organizations (NGO’s) in the promotion and protection of human rights, including freedom of religion and belief.
On December 10, 1948, the United Nations General Assembly unanimously adopted the UDHR. Harvard law professor Mary Ann Glendon has described the significance of this event in her book, A World Made New. She states that ‘[t]he Moral terrain of international relations was forever altered late one night in Paris…when the General Assembly of the United Nations adopted the UDHR without a single dissenting vote.1 In fact, by the time the representatives of all the countries had made their statements highlighting the significance of what was about to happen, it was actually early in the morning of December 11th when the document was adopted.
1 Mary Ann Glendon, A World Made New xv (2001).
There are several important things to understand about the history and the background of the UDHR. First, this process was undertaken at the insistence of small countries and non-governmental organizations. Today, some observers try to characterize human rights as a Western imposition upon developing countries, but as will be explained in more detail below, that is not congruent with the history of why the human rights instruments came to be drafted. If anything, the exact opposite is closer to the truth.
Second, the window of opportunity for the Declaration’s implementation was frightfully small. The time between the end of World War II and the onset of the deep freeze of the Cold War was brief. In an important sense, December 1948 represented a brief interim moment when such an agreement was politically possible.
Third, this was not an exercise in high theory, but rather an identification of widely shared practices and norms. The drafting of the Universal Declaration began and was most influenced by surveys of existing rights instruments, going back to the Magna Carta, the French Declaration of the Rights of Man, the early amendments to the U.S. Constitution, among many other rights instruments. By the time the first draft was completed, it was 500 pages long and was almost entirely footnotes that referenced a broad range of existing rights instruments from around the world.
The adoption of the UDHR was one of the crowning achievements of Eleanor Roosevelt’s remarkable public life, although biographies and documentaries of her life often barely mention her involvement in this process as chair of the committee that drafted the Universal Declaration of Human Rights.
Aims of the UDHR
The key aim of the declaration was to establish a standard of globally respected rights. The document was designed to identify a set of standards so obvious, so basic, and so widely recognized, that no self-respecting state could resist the call to protect these rights. And thus, to deny these rights to their own citizens and to people living within their jurisdiction would be a great embarrassment.
Sometimes international human rights norms are discussed as grand ideals or vague and esoteric principles. However, the Declaration was not the work of starry-eyes idealists. It was the work of statesmen and stateswomen who had come through the fiery crucibles of not only World War II, but World War I. They had seen the horrors of Japanese imperialism, Nazi Germany, and the effort to extinguish the Jewish race. This was a group of people who had been through an ordeal unlike anything most of us have experienced today, thus to say that this is the work of unrealistic romantics does a tremendous disservice to this group of people. However, while these individuals were not naïve idealists, there was indeed a profound idealism involved: an earned idealism that arose from the ashes of World War I and II.
The drafting and debate was diverse and inclusive. It is important to recognize that this was not just a group of elite drafters, it was a process that was very inclusive and wide-raging. The key aims included amplifying the voice of the weak. After all, the UDHR highlights rights that individuals can claim against their own states or governments. It primarily places limitations on the way states and those in power can treat those subject to their jurisdiction. Importantly, it introduces the idea that human beings, and not just states, are the subjects of international law.
Since the treaty of Westphalia, international law had largely been viewed as a matter of the relations between states and a secularization of relations between states began to emerge. However, the Declaration not only introduced human beings as subjects of international law, but challenged that long-held assumption that international law is primarily a matter of state-to-state relations, and explicitly rejected the claim that human rights are only a matter of domestic concern.
Background and Drafting of the UDHR
When the U.N. Charter was drafted in 1945, the great Powers—United States, Great Britain, and the Soviet Union—showed little interest in the human rights project. The U.N. Charter briefly mentions, but does not give content to the idea of human rights. But the Allied Powers had described the war as a fight for freedom and democracy and those who longed most for such freedom were slow to forget the world they envisioned.
In the post-World War II period, the United States was not especially interested in human rights because of its own domestic issues surrounding race. The United States had widespread segregation and racial discrimination. The promulgation of human rights at the time could have served as a basis for uncomfortable claims of racial equality. The Soviet Union also was uninterested in human rights because the collectivist ideology of communism prescribed that the individual’s interest must be subordinate to the community’s interest. Additionally, Great Britain was uninterested in the human rights project because it was desperate to preserve what it could of its empire. Thus, the most vocal proponents of the human rights project were countries that were subject to imperial powers.
Carlos Romulo of the Philippines, a statesman, diplomat, and journalist, for example, said that he would not be deterred from pressing issues of human dignity. He wrote that he became ‘a nuisance, a gadfly, a pest. I prowled corridors, buttonholed delegates, cornered unwilling victims in hotel lobbies and men’s rooms. 2 This quotation demonstrates the sentiment that there was an adamancy, an advocacy, an insistence that encouraged the Great Powers to live up to the promise of what they said the war had been about. In addition, appalling photographs from the Nazi concentration camps were becoming widely circulated, and the United States agreed, somewhat reluctantly, to the creation of a special commission on human rights.
President Harry Truman insisted that Eleanor Roosevelt, the still-mourning widow of President Franklin Delano Roosevelt, join the U.S. delegation to the United Nations. Many opposed Eleanor Roosevelt’s appointment because of her inexperience in international relations. Others opposed her appointment because of her liberal and outspoken nature. Interestingly, Eleanor Roosevelt was a columnist who wrote a weekly piece in the leading women’s magazine of the day. In her column she promoted her liberal, pro-union, pro-worker, pro-women agenda and often criticized her husband’s administration and his policies. Rather than try to control her, Franklin Roosevelt’s daily prayer was said to have been, ‘Dear God, please make Eleanor tired. 3
Ultimately, Eleanor Roosevelt was a force of nature. She was a remarkable, strong-willed, savvy, and diplomatic person who faced down the opposition regarding her appointment. In point of fact, Eleanor Roosevelt herself doubted her capacity to tackle such a project as human rights. She was in grief after the recent death of her husband and she had children who needed her since she was the rock of her family. Furthermore, the family finances were not in great shape coming out of the presidency.
Nevertheless, when she agreed to spearhead the human rights project, she threw herself into the task with tremendous energy and hard work. She used preparation and organizational skills to compensate for what she lacked in ready knowledge and experience. She proved to be a powerful and valuable asset to the U.S. delegation as well as to the U.N.’s efforts to create the UDHR.
Her most effective diplomatic strategy involved inviting key participants into her home. She had a townhouse on Washington Square Park in Greenwich Village to which she would invite Commission members to come, enjoy tea, discuss the relevant issues, and eventually engage in preliminary negotiations. By the time the formal negotiations commenced, several views had already been vetted during the social aspects of the delegates’ visit, and thus the group could focus on making progress.
There were representatives of 18 nations appointed to the Commission on Human Rights, who were tasked with drafting the Universal Declaration. These included Australia, Belgium, Byelorussia, Chile, China, Egypt, France, India, Iran, Lebanon, Panama, Philippines, Ukraine, the Soviet Union, the United Kingdom, the United States, Uruguay, and Yugoslavia. The careful composition of this list is rather remarkable. It includes nations aligned with the western democracies as well as with the Soviet Union; countries from the north and the south; developed as well as developing countries; and both Christian and Islamic majority countries. Indeed, it would have been difficult to come up with a more careful, nuanced, and balanced group of countries than those that were identified and appointed to the Human Rights Commission.
Eleanor Roosevelt was elected chair of the Human Rights Commission and the 18-member delegation almost immediately found that drafting an international bill of human rights was difficult as a committee of the whole. Therefore, a drafting committee was organized. That committee was comprised of Eleanor Roosevelt, Charles Malik, Lebanese philosopher, diplomat, and secretary of the commission, and P.C. Chang, Chinese philosopher, diplomat, and playwright who served as vice-chairman of the commission. The three were assisted by John Humphrey, a Canadian international law expert assigned to act as the director of the Human Rights Division of the U.N. Secretariat. In time, the drafting committee was expanded to include Rene Cassin, the legal genius of Free France; Colonel Hodgson of Australia; Hernan Santa Cruz of Chile; Geoffrey Wilson representing the United Kingdom; and Vladimir Koretsky as the representative of the Soviet Union. 4
Over a span of nearly two years, the drafting committee and the Human Rights Commission as a group repeatedly revised and debated the document that eventually came to be known as the Universal Declaration of Human Rights. The document passed through multiple committees and votes, eventually earning the approval of the United Nations General Assembly.
Key Provisions
The Introductory Proclamation says that, the UDHR declares itself 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….5
Virtually every word of this quotation is important. The declaration is a ‘common standard of achievement’ for everyone, peoples and nations. This language demonstrates that there is a responsibility of individuals to be aware of and understand what these rights are. Furthermore, this section insists that education surrounding human rights must be promulgated both through international as well as national efforts.
The Preamble is also noteworthy, providing:
Whereas 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
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outranged the conscience of mankind….
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights be protected by the rule of law….6
This first selection identifies key ideas, the second looks backwards, and the third looks forward.
One of the key ideas is the recognition that the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world. This is a profound statement. The preamble holds that the dignity of people is not something bestowed by states to individuals, but is inherent. Similarly, these equal and inalienable rights are not granted, but are traits and endowments with which we are born. Finally, there is acknowledgment that all are members of the human family, which recognizes mankind’s common humanity and relational status. These ideas are important because, the preamble declares, because they are the foundation of freedom, justice, and peace.
Looking backwards, the preamble notes the ‘disregard and contempt for human rights that has resulted in barbarous acts which have outraged the conscience of mankind….7 The references to the horrors of World War II are unmistakably evident in this language.
Looking forward, the preamble expresses that ‘it is essential, if man is not to be called to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights be protected by the rule of law.8 This is the forward-looking reason why human rights are important, because otherwise, people will have no recourse but to rebel against tyrannical and oppressive governments. This is a strong warning to countries and regimes that fail or refuse to protect human rights.
Article 1 is an extraordinarily carefully crafted statement about the character of human rights, and it sets the basic framework for understanding what human rights are and how they should be understood. It creates the basis for what might be described as ‘human rights discourse.’ Article 1 reads, ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.9 The most essential parts of the declaration necessary for engaging in discussions with governments, religious leaders, and politicians about religious freedom are almost entirely summarized in this article. Freedom, equality, dignity, and rights are the basic things that human beings have as a result of general human capacities and status. Individuals are endowed with reason, with conscience, and every person has an obligation to treat others as brothers and sisters. That is the foundation for human rights: human dignity, equality, and freedom, and the idea that we as human beings have reason, conscience, and an obligation to treat each other with the spirit of brotherhood.
Article 1 creates a framework for human rights discourse. It provides a vocabulary, a set of concepts; it is a way of communicating about human rights. When we are trying to promote human rights, we are almost always best to go back to these most simple, most clear, most pure ideals. This is rather idealist, but it is also a set of deeply profound statements about the character of human beings and our relationships with each other. Almost everything of importance that takes place in human rights law grows from the roots of this Article 1.
The idea of conscience is also something interesting about Article 1. The inclusion of conscience was at the suggestion of the Chinese delegate, P.C. Chang.10 He wanted to include, in addition to reason, the idea of ren (仁), which is a Chinese concept that is created from the Chinese character for man. Literally, ren means two-man mindedness, a composite of man (人) and two (二), so it implies ideas of empathy, consciousness of one’s fellow men, humanity, or benevolence. This was translated as conscience, but, unfortunately, this translation does not quite capture the meaning of ren. Conscience, like reason, is an inward capacity. Metaphors for conscience include things like inner light, still small voice, and spirit. But these all indicate an inward illumination, an inward whispering; whereas, ren is outward and other-directed in its orientation.
While something was lost in the mistranslation, a closely related concept was captured in the idea at the end of the sentence where the notion of treating each other with a spirit of brotherhood is expressed. This idea actually comes closer to capturing the idea of ren than the translation of conscience does.
Ren is an absolutely foundational principle in Confucian philosophy. Lo Chung-Shu said that ‘[t]he basic ethical concept of Chinese social political relations is the fulfillment of the duty to one’s neighbor, rather than the claiming of rights.’ He described ren as ‘a sympathetic attitude of regarding all one’s fellow men as having the same desires, and therefore the same rights, as one would like to enjoy oneself.’ It recognizes that social harmony comes from the sovereign fulfilling a duty of ren and citizens fulfilling a duty of filial piety or xiao (孝), also translated as loyalty. Xun Zi believed that ren was essential for good governance and unifying people.
When discussing human rights, and especially in Asian contexts, highlighting the concept of ren and acknowledging the mistranslation can be a helpful way of breaking down some of the suspicion towards human rights. But the idea captured by ren is a concept that resonates deeply not only in Asian cultures, but in other societies as well, including African and South Pacific cultures. The South African concept of ubuntu expresses a similar idea as the Chinese concept of ren. Ubuntu is similarly hard to define and translate. For Africans, ubuntu is what makes human beings human; it connects humans to all other beings. Ubuntu reflects not just human kindness, but the deep interconnectedness of human beings; literally translated, it connotes ‘human-ness.’ Additionally, for Samoans, concepts like fa’aaloalo (respect) or alofa (love) are very similar to the concept of ren. They shape social interactions, social norms and views on human rights.
Some consider the Confucian emphasis on relationships and duties to be incompatible with a rights-based legal system. However, it may be important to recognize that the Bible has been described as not a system of rights, but rather a system of duties. Thus, for people from the Judeo-Christian tradition, thinking in terms of duties can be as useful and fruitful as thinking in terms of rights. As Gandhi said, ‘I learned from my illiterate but wise mother that all rights to be deserved and preserved come from duty well done.’
There are a variety of implications that stem from focusing on and recognizing ren when legislating in the area of human rights, and in particular with respect to religious freedom. This notion encourages us to keep the treatment of the other in mind, including religious minorities, when forming and implementing policies. It reminds us that we are all part of a minority. One of the deep truths is that there is no majority religion in the world, and it is easier to maintain an attitude of two-man-mindedness when we continually remember that we are all a part of a minority.
Having a majoritarian framework or attitude makes it more difficult to think in terms of the rights and interests of the minority. It is important to constantly maintain the recollection that even if one group is a temporary majority somewhere, that same group is a minority elsewhere. The largest group in the world is probably Christians (after that, Muslims; and after that it is unbelievers or non-believers in religion) and even with its billion, or billion five, that is a small percentage of a world that consists of seven billion people.
Additionally, human rights are inseparably connected to relational duties. The freedom, for example, to choose, have, and manifest religion must be considered in conjunction with social duties to uphold and sustain the law. Rather than focusing on rights in isolation, a better approach is to focus on the relationship of rights and duties, and in this regard the concept of ren effectively encourages just that.
Article 2 is another key provision of the UDHR. It states that ‘[e]veryone is entitled to all of the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status….’ Human rights do not belong solely to citizens, but rather, to all human beings who are subject to the jurisdiction of governments. Everyone has all of the rights, notwithstanding their differences, including religious differences.
Article 7 discusses equality and equal protection, when it declares that ‘[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law….’ We may not be equal in every sense, but from a human rights perspective we are all equal in one important way: we are equal before the law.
Article 18 holds provisions that are the most relevant to religion and religious freedom. It states that ‘[e]veryone 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.’ Again, every word is thoughtfully considered. This specific article went through about seven different drafts and the settling upon this language was careful and deliberate. Article 18 will be discussed in detail in Chapter __.
Article 29 contains parameters, or the bases of limitations on the human rights identified in the UDHR. Article 29 states:
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.
Opinions regarding the acceptable extent of limitations vary widely. Thus, human rights discussions frequently focus on limitations, the grounds for limitations, and whether the limitations are necessary.
Other International Human Rights Instruments
In the years since the adoption of the UDHR, there have been a number of other international and regional human rights institutions and instruments that address human rights, including freedom of thought, conscience, and religion. These include the Council of Europe and the European Union (EU), the Organization for Security and Cooperation in Europe (OSCE), the Organization of American States (OAS), the African Union (AU), the Association of Southeast Asian Nations (ASEAN), and the Organization of Islamic Cooperation (OIC).
Here I will focus on the most influential of these institutions, the Council of Europe, and the European Convention of Human Rights (ECHR) adopted by the Council of Europe. I will also note several important developments in the United Nations, the adoption of the International Covenant on Civil and Political Rights (ICCPR), and the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (the 1981 Declaration).
European Convention on Human Rights (ECHR), 1950
The European Convention on Human Rights, adopted in November 1950, is very similar to the Universal Declaration of Human Rights 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. Its governing institutions include a committee of ministers and a parliamentary assembly, and its foundational documents include the European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR includes the right of individuals to file complaints claiming human rights violations by their government. At first, this right of individual petition was optional for member states, but since 1998, it has been mandatory.
The European Court of Human Rights implements and interprets the provisions of the ECHR. It is an international judicial body established under the European Convention to monitor the respect of human rights by participating states. All 47 members of the Council of Europe have adopted the ECHR. Applications against Contracting Parties for human rights violations can be brought before the Court by other states, other parties, or individuals. Applications may be made in the language of the party, but all Court proceedings are conducted in one or both of the Court’s official languages, English or French. The Court sits in Strasbourg, France.
The Court is distinctive, if not quite unique, as an international law body in that it provides a mechanism for individuals – citizens, nations and even visitors – to bring a claim in a transnational court that the host country has violated their basic human rights. At times, the Court is tentative and may seem to be overly deferential to nation states. But it is important to remember that the Court represents a relinquishment of national sovereignty that seems quite remarkable when viewed from a global perspective.
The member states of the Council of Europe are notable for their historical, political, cultural, religious and legal diversity. The geographic and ethnographic scope alone is breathtaking. The Court’s jurisdiction encompasses all 47-member states of the Council of Europe, eight-hundred million people in eighteen time zones, and the Court has issued more than ten thousand judgements since 2008. There is one judge on the Court from each of the forty-seven countries in the Council, but these judges are independent and do not represent their countries. They have expertise in the law of their respective countries, but usually broad additional expertise as well.
When cases are filed, they are reviewed initially by a three-judge committee that considers applications. Typically, cases are decided in seven-judge changers, although in some classes of important cases, seventeen-member panels meet in Grand Chamber.
The Court receives approximately fifty-thousand submissions per year. Application to the Court requires an applicant to exhaust his or her domestic remedies, not substantially touch upon a matter already examined, and to not be ‘manifestly ill-founded.’ There is no review of national laws and the determinations of courts under national law, and the asserted violation must be caused by a responsible state party. Applicants cannot bring a complaint against another private or corporate party. States are not liable for events that occurred before their ratification of the treaty.
Standing before the court initially excluded religious groups, but the Court revised its position after its opinion in Church of Scientology v. Sweden.
Remedies afforded by the Court most commonly include damages and compensation, though sometimes states are ordered to enact new laws. A Committee of Ministers made up of the Foreign Ministers of each of the countries in the Council of Europe meets regularly to oversee the execution and enforcement of the Court’s judgements.
The European Convention protects a long list of personal freedoms, including religious freedoms. Its key provisions protect the right to life, a fair hearing in criminal and civil cases, the right to respect for private and family life, freedom of expression, the right to an effective remedy, the right to peaceful enjoyment of one’s possessions, the right to vote and to stand for election, and Article 9’s protection of thought, conscience, and religion. The Convention also prohibits torture and inhuman or degrading treatment or punishment, slavery and forced labor, slavery and forced labor, discrimination in the enjoyment of the rights and freedoms set out in the Convention, the expulsion or removal by a State of its own nationals, the death penalty, and the collective expulsion of foreign nationals.
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.’ I will discuss Article 9 of the ECHR in greater detail in chapter __.
One of the Convention’s most important aspects is the right individuals possess to bring complaints against their governments. From 1959 to 2011, the Commission and then the Court heard forty cases in which a state violated an individual’s right under Article 9. Ten such cases originated in Greece, five from both Russia and Bulgaria, four in Turkey, and three each from Ukraine, Moldova, and Latvia. Overall, however, violations of Article 9 are comparatively few. For example, violations of Article 6, which protects a right to a fair trial, number 2725 compared to 40 violations of Article 9.
Early in its history, before individuals could appeal to the Court directly, the European Commission on Human Rights filtered applications. The Commission determined a given case’s admissibility, tried to reach an amicable out-of-court settlement, issued non-binding reports to the Committee of Ministers, and acted to award ‘just satisfaction’ when cases were not referred to the Court. Protocol 11, adopted in 1994, now allows individual applicants to bypass the commission and bring cases directly to a three-judge panel to determine admissibility.
After Protocol 11 allowed individual applicants to approach the Court directly, the Court experienced a dramatic increase in individual filings. From 1955 to 1998, for example, the Court handled 45,000 applications. In 2008 alone, the Court handled 49,900 applications. This number rose to 86,063 by 2014. Protocol 11 also resulted in a larger number of judgments. From 1955 to 1998, the Court issued 837 judgements. In 2008 and 2014, the Court released 1,543 and 891 judgements, respectively.
The caseload of the ECHR focuses heavily on criminal and procedural matters, with nearly half involving a violation of Article 6 (fair trial), whether on account of the fairness or the length of the proceedings, 14 percent involving Article 1 of Protocol No. 1 (property), 12 percent involving Articles 2 and 3 (right to life and prohibition on inhuman and degrading treatment), 10 percent involving Article 5 (right to liberty and security), and 8 percent involving Article 13 (right to an effective remedy). This means that fewer than 10 percent of the claims deal with freedom of religion, freedom of expression and a variety of other claims.
Nevertheless, the impact of Article 9 cases, involving freedom of thought, conscience and religion, all of which have been decided in the past few decades, has been disproportionately high. The important Article 9 issues decided by the Court include the wearing of religious symbols or clothing in public places, the process of registration and receiving recognition as a religious group, religious association where employment in religious organizations might depend on a person’s religious qualifications, proselytism, hate speech, and defamation of religion.
International Covenant on Civil and Political Rights (ICCPR), 1966
The UN Human Rights Commission planned to follow up the non-binding Universal Declaration of Human Rights immediately with a binding, universal convention. However, ideological differences between the Western states and the Soviet bloc prevented progress on a single covenant. Eastern states insisted that the covenant should provide for economic, social, and cultural rights, as well as civil and political rights. Western states refused to commit themselves to a framework with economic and social standards bearing the same legal force as the civil and political rights standards. 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). Surprisingly, despite the sharp divide in opinion over the content of the covenants, both were adopted unanimously (along with the first Optional Protocol) by the General Assembly in December 1966; they entered into force in 1976.
While the UDHR carries moral force and is often viewed as having the force of customary international law, the two covenants are binding, positive law. Compliance with the terms of the covenants is required by the Vienna Convention on the Law of Treaties. Further, whereas states can derogate from some duties acquired through treaties, human rights obligations that are ‘fundamental’ are nonderogable and cannot be avoided by reservation, objection, or declarations by state parties to the covenants. As a legally binding treaty, the ICCPR includes various enforcement mechanisms. The Covenant creates the Human Rights Committee, which administers the reporting system also established by the Covenant. As of early 2017, 164 states were party to the ICESCRR and 168 states were party to the ICCPR.
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…’ I will discuss Article 18 of the ICCPR, as well as other provisions relating to freedom of thought, conscience and religion, in greater detail in chapter __.
The Optional Protocol to the ICCPR also has significant implications for freedom of religion. Article 1 of the Optional Protocol establishes the Human Rights Committee, with the competence to ‘receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant.’ Subject to the requirements that the communication concerns a state party to the Covenant, that domestic remedies have been exhausted, and that the communication is not anonymous or abusive, the committee will bring the communications to the attention of the state party, which shall have time to prepare a written response, clarifying the matter and any remedies that have been taken by the state. The Human Rights Committee also is instructed to prepare annual reports of its activities under the Protocol.
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 led relatively rapidly to the adoption in 1965 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which entered into force in 1969. As a result of international politics and the greater complexity of freedom of religion issues, a convention in the religion are has never been adopted. Rather, when it became clear that there was insufficient consensus to create a legally binding treaty in this area, the decision was made to adopt a Declaration instead. Accordingly, in 1981 the United Nations General Assembly adopted its Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (the ‘1981 Declaration’). I will discuss the 1981 Declaration in more detail in chapter __.
United Nations Monitoring Institutions
Over the years, the United Nations has set up various institutions to monitor and promote state compliance with human rights commitments, including protecting the right of freedom of religion and belief. Here I will focus on the United Nations Commission on Human Rights and its 2006 replacement, the United Nations Human Rights Council, as well as on the UN Human Rights Committee, the treaty body charged with monitoring compliance with the ICCPR. Other UN institutions have a significant impact on the implementation of freedom of religion and belief, including the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labor Organization (ILO), and the World Health Organization (WHO).
The first international human rights body was the UN Human Rights Commission, now known as the Human Rights Council. As the oldest such body, it had a profound impact on religious freedom jurisprudence in international law. The Commission’s history can be divided into three stages. The first, which lasted from 1946 to 1955, saw the commission playing a key role in drafting what later became the most important human rights instruments outlining freedom of religion or belief. The second period lasted until 1981 and culminated in the Declaration on the Elimination of All Forms of Intolerance and Discrimination. Since that time, much of the commission’s work has focused on the monitoring and implementation of human rights. This Commission and later Council appointed a Special Rapporteur to conduct site visits, respond to reports of violations, organize conferences on relevant issues, issue annual reports, and recommend remedial issues against violating states.
Towards the end of the body’s existence as the Commission, it faced significant criticism because its members included some of the world’s worst human rights offenders. The Commission’s members often used their positions to prevent the Commission from investigating human rights abuses. Reform efforts culminated in 2006, when the UN General Assembly replaced the Commission with a significantly restructured body, the Human Rights Council. The Council is now, according to the body’s website, ‘an intergovernmental body within the U.N. system made up of 47 States responsible for strengthening the promotion and protection of human rights around the globe.’ This involves reviewing the human rights records of all UN member states every four years.
The United Nations system also includes the Human Rights Committee, a ‘treaty body’ created by the International Covenant on Civil and Political Rights to oversee state compliance with that instrument. Prominent human rights experts comprise the committee, which functions independent of other institutions.
The Human Rights Committee has three primary functions: (1) reviewing periodic reports signatory states submit pursuant to the requirements of the International Covenant in order to assure compliance; (2) producing general comments that interpret specific Covenant provisions or address general procedural and substantive issues; and (3) reviewing individual complaints that arise through the Covenant’s Optional Protocol.
The Human Rights Committee has produced a number of general comments germane to freedom of religion or belief. The most important of these is its 1993 General Comment Number 22, on Article 18, which fleshes out the meaning of freedom of religion or belief in significant ways – stressing the importance of a broad understanding of the scope of rights entitled to protection, stating that internal forum matters are protected absolutely, and emphasizing the narrowness of the circumstances under which religious freedom may be limited. More recently, in General Comment Number 34, the Committee addresses Article 19, regarding freedom of expression. In General Comment Number 34, the Committee stresses its concerns about anti-conversion, anti-proselytizing, and defamation of religion laws. Paragraph 9 states that the freedom of opinion ‘extends to the right to change an opinion whenever and for whatever reason a person so freely chooses,’ and notes that ‘all forms of opinion are protected,’ including opinions of a ‘moral or religious nature.’ Paragraphs 22 and 48 clarify that, ‘prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant,’ except under specified circumstances where such advocacy constitutes an incitement to violence.
Conclusion
In conclusion, a brief look into Eleanor Roosevelt’s nightly prayer illustrates the strong faith that she (and likely many other contributors to the Universal Declaration) possessed and that drove her to pursue the creation of the declaration with such fervor. Commitment to human rights wasn’t secular for Eleanor, it was deeply rooted in her faith. The principles highlighted in her prayer perfectly indicate the ultimate goal of the Universal Declaration of Human Rights: a world made new.
Our Father, who has set a restlessness in our hearts and made us all seekers after that which we can never fully find, forbid us to be satisfied with what we make of life. Draw us from base content and set our eyes on far-off goals. Keep us at tasks too hard for us that we may be driven to Thee for strength. Deliver us from fretfulness and self-pitying; make us sure of the good we cannot see and of the hidden good in the world. Open our eyes to simple beauty all around us and our hearts to the loveliness men hide from us because we do not try to understand them. Save us from ourselves and show us a vision of a world made new.
- 1 Mary Ann Glendon, A World Made New xv (2001). ↩︎
- 2 Id. at 12. ↩︎
- 3 Id. at 22. ↩︎
- 4 The Soviet Representative changed multiple times throughout the drafting process and included: Valentin Tepliakov, Alexander Bogomolov, and Alexei Pavlov.
↩︎ - 5 Universal Declaration of Human Rights (UDHR) Introductory Proclamation, December 10, 1948.
↩︎ - 6 Id. Preamble. ↩︎
- 7 Id.
↩︎ - 8 Id. ↩︎
- 9 Id.art.1. ↩︎
- 10 Glendon, supra note 1, at 67–68. ↩︎