Lee Boothby, International Academy for Freedom of Religion and Belief
delivered at the
International Coalition for Religious Freedom Conference on
"Religious Freedom in Latin America and the New Millennium"
October 10-12, 1998, Sheraton Mofarrej Hotel, Sao Paolo, Brazil
I have been assigned the sub-topic of "International Agreements and the Protection of Religious Freedom." As is self-evident, time will permit me to touch only on the important topic I have been asked to talk about. But I wish first to mention and briefly analyze the protections involved in a few relevant international agreements and one regional agreement; second, to discuss their importance; and third, to offer a few suggestions.
The first global instrument was, of course, the United Nations Charter. It is not per se human rights law, but in 1945 it established an institution by which positive law could be formed and effectuated. As was mentioned last night by Bruce Casino, the UN 50 years ago gave specific expression to religious human rights when it adopted the Universal Declaration of Human Rights. At the time of its adoption, it was intended to be a common standard of achievement for all peoples and nations. In other words, a standard to be sought, not a law to be obeyed. But over time it has become part of a fabric of international law. The Declaration is not to be viewed a new right; rather, it was the recognition of a pre-existing right that all humankind inherently possesses.
In 1966, the UN General Assembly adopted the International Covenant on Civil and Political Rights. This instrument established positive legal protection for religious human rights. It included and expanded on the concept of the religious freedoms set forth in Article 18 of the Universal Declaration. It has, in fact, been called the International Bill of Rights.
Article 2 of the International Covenant provides for nondiscrimination together with equality before the law. Article 18 of the International Covenant in its first of three subsections provides,
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom either individually or in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
The second subsection states,
"No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice."
And the third subsection states,
Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety or health or morals or the fundamental freedoms of others.
Now perhaps the first important point that might be made about Article 18 is that it recognizes that freedom of thought, conscience, and religion is recognized as extending to everyone. Thus, non-citizens and individuals such as missionaries who may be only temporarily within another country are to be equally protected as to the full enjoyment of this basic right. Many of the countries seem to ignore the fact that this basic right extends to everyone within their borders, although the term "everyone" might be viewed as applying only to natural persons and not religious associations. It is my own belief that it is the current contemporary view that this term is not restricted to natural persons. This view is strengthened, I believe, by the language in the articles stating that freedom of thought, conscience, and religion is ensured whether "manifested individually or in community with others."
The UN Human Rights Committee’s General Covenant, No. 22-48, makes clear that the term "belief in religion" ought to be broadly construed.
Article 18 is not limited in its applications to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established or represent religious minorities that may be the subject of hostility by a predominant religious community.
The next point is that the right to believe is absolute and without any limitation. The UN Human Rights Committee’s General Comments on Article 18 distinguishes the freedom of thought or religious belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or the freedom to have or adopt a religion or belief of one’s choice. Thus, there can never be any justification for any governmental activity which assists or condones the activity of religious deprogramming. In fact, Article 18, sub no. 2, prohibits coercion aimed at impairing a person’s freedom to have or to adopt a religion or belief of his choice. The right to believe is not subject to any limitation whatsoever, and any governmental action that impairs or infringes upon that is a clear violation of Article 18.
Article 18 also recognizes the right to change one’s own religious belief, free from state-imposed or state-sanctioned impediments. The Human Rights Committee’s General Comments states that Article 18-2 bars coercion that impose burdens on the right to have or adopt a religion or belief, including:
the use of threat or physical force or penal sanctions to compel believers, or nonbelievers, to reject their religious beliefs and congregations, to recant their religion or belief, or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment, or the right guaranteed by Article 25, in other provisions of the Covenant, are similarly inconsistent with Article 18.
Now Article 25 of the Covenant referred to by the Human Rights Committee General Comments includes 1) the right to take part in public affairs, 2) to be elected to public office, and 3) to have access on general terms of equality to public service positions. Although Article 18 may be adhered to by a given state, many times it has been observed only partially. In its full application, it has ignored this particular right. For example, labor legislation will many times require accommodation for particular religious views, such as Sabbath observance, held at the outset by a particular individual who seeks employment, but may not require accommodation when one changes one’s religion. The right to change religion should not be impaired by such an interpretation.
Article 18 provides for a broad understanding as to protected religious activities. It recognizes the right to manifest one’s religion individually or in community with others, and in public or in private. This manifestation may take the form of worship, observance, practice, and teaching. Thus, the right is not confined to simply singing, praying, and preaching within a church, temple, or synagogue. It took a considerable period of time before those in my country completely understood that the right to manifest one’s religious belief wasn’t to be confined within the four walls of a church, a temple, or a synagogue. For instance, in Alexandria, Virginia, when a group of churches, Protestants and Catholics, combined together to provide shelter and food for homeless people, the zoning authority felt constrained to hold that this was not part of the religious activities of the churches involved. It was ultimately resolved by the county council. This same type of opposition has appeared in other parts of the country.
In addition to the rights to manifest one’s religious beliefs in community with others, as recognized by Article 18, Article 22-1 provides that everyone shall have the right to freedom of association with others. Also, Article 19 of the Covenant recognizes that:
Everyone shall have the right to freedom of expression. This right shall include freedom to seek, receive, and input information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print; in the form of art, or through any other media of its choice.
Many countries of the world feel that they can so classify various organizations that, at least for a period of their existence within the country, they should not be able or permitted to print or distribute their own literature. This is a violation of Article 18 read in connection with Articles 19 and 22.
Significantly, it must be said, however, that Article 18 is subject to some restrictions. Article 18-3 permits restrictions on the freedom to manifest religion or belief. As the Human Rights Committee points out, however, such restrictions must be prescribed by law and necessary to protect health or morals or the fundamental rights of freedom of others. According to the Committee’s General Comment any restrictions imposed on the right to manifest one’s religion in a manner that would violate Article 18 must be strictly interpreted.
Restrictions on religious practice are not allowed on grounds not specified in Article 18-3, even if they would be allowed as restrictions to other rights by the Covenant. For example, other provisions of the Covenant permit limitations based upon national security. But such a limitation may not be applied to the right to manifest one’s religious beliefs. Also of extreme importance is the fact that limitations may be applied only for those purposes for which they were described and must be directly related and proportionate to the specific need on which they are predicated. This somewhat ties together with the concept which we recognized in the U.S. for a long period of time: that in order for the government to limit the manifestation of religion there must be some type of compelling state interest and no less restrictive means by which the government could carry out its purpose.
Furthermore, any limitation on the manifestation of religion may not be predicated upon any discriminatory purpose or applied in a discriminatory manner. The interpreting of Article 18 of the Covenant is given further instruction by another significant UN Document. In 1962, the UN General Assembly called for the preparation of a draft of a declaration on elimination of all forms of religious intolerance. On November 25, 1981, the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief was accepted by the United Nations.
This Declaration serves as a valuable guide since it contains specific provisions detailing the content and right to religious human rights. Article Six of this declaration suggests that religious human rights included but are not restricted to the following freedoms:
to worship or assemble in connection with a religious belief and to establish and maintain places for these purposes
to establish and maintain the proper charitable or humanitarian institutions
to make, acquire, and use to an adequate extent the necessary articles and materials related to the rights or customs of the religion or belief
to write, issue, and disseminate relevant publications in these areas
to teach religion or belief in places suitable for these purposes
to solicit and receive voluntary financial and other contributions from individuals and institutions
to train, appoint, elect, or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief
to observe days of rest, to designate holidays and ceremonies in accordance with the precepts of one’s religion or belief
to establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels
It is clear that the nations accepting these international religious human rights are not yet fully meeting these standards. One could go through a list of many countries of the world and designate where they have fallen short. Let me give you several examples:
In Lithuania, which requires a new religion to wait for 25 years before being fully recognized and accorded the right to function as a church in that country, new religions are not able to fully conduct their religious activities, and individuals within the religious organization are not able to manifest their religion as it is intended.
In Bulgaria the government has refused most requests for visas for foreign missionaries, and religious organizations are not able to fully function.
Burma, which prohibits Christian Bibles that are translated into indigenous languages from being imported, reduces the rights of religious organizations wishing to provide those materials.
In Germany, the Jehovah’s Witnesses have been denied public body status because the church did not offer indispensable loyalty toward the state. This violated the requirements of the international standards.
In some parts of the world, people are still killed for changing their religion or adopting a particular religious belief.
There are several regional human rights documents that recognize religious human rights. They include the European Convention for Protection of Human Rights and Fundamental Freedoms, the Helsinki Final Act, the Concluding Document of the Vienna meeting, the African Charter on Human and People’s Rights, and the American Convention on Human Rights.
I just want to say one word about the American Convention on Human Rights. This was adopted on November 22, 1969, and became fully effective on July 18, 1978. It constitutes a binding international law. Article 12 closely parallels Article 18 of the International Covenant, but it is perhaps a bit broader in scope and more specific. For example, it provides for public dissemination of one’s religious belief, which is a clearly stated protection for evangelization.
One might ask, "What is the importance of the international and regional instruments that have been drafted and promulgated? We have already seen that they are still violated today throughout the world." Theo Van Bohven, in his outline of general courses on the protection of human rights has suggested that there are six major purposes for the United Nations documents:
They provide a policy instrument for international compliance.
They provide a yardstick to measure compliance with international standards.
They provide terms of reference for bodies established by these instruments.
They serve as models for framing national legislation.
They establish norms for judicial review by domestic courts insofar as legally possible.
They constitute tools to be invoked by groups and individuals before national and international forums both legal and political.