Abstract
This article provides an overview of the nature and scope of the minimum standards for freedom of religion or belief in the international community, as regulated by the principal international norms. Although the international community had already addressed racial discrimination, racial hatred, and other human rights issues, the United Nations did not address racial and religious discrimination and intolerance until the early sixties, following a series of anti-Semitic outbreaks. The United Nations separated the issues and promptly drafted a declaration and convention against racial discrimination. However, the United Nations did not draft a declaration regarding religion and belief until 1981. Moreover, it does not appear the United Nations will draft a convention regarding religion and belief any time soon, for reasons discussed hereafter.1
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Reference
See part IV.C.4. Scholarly literature regarding human rights was criticized for similarly failing to sufficiently address religion, belief, and related issues. This deficiency has been remedied in recent years. Today, there are a fair number of books and articles available that address religion and beliefs and the minimum standards and norms that prevail in the area. See Malcolm D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997); Natan Lerner, Religion, Beliefs and International Human Rights (Maryknoll, N.Y.: Orbis Books, 2000); Ted Stahnke and J. Paul Martin, eds., Religion and Human Rights: Basic Documents (New York: Columbia University, 1998); Johan D. van der Vyver and John Witte Jr., eds., Religious Human Rights in Global Perspective: Legal Perspectives (Boston: Martinus Nijhoff, 1996 ); Bahiyyih G. Tahzib, Freedom of Religion or Belief Ensuring Effective International Legal Protection ( Boston: Martinus Nijhoff, 1996 ).
See Susanne Hober Rudolf and James Piscatori, eds., Transnational Religion and Fading States (Boulder: Westview Press, 1997), 3–4. See also Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon and Schuster, 1996), which caused considerable controversy.
See US Department of State, Annual Report on International Religious Freedom (1999); International Religious Freedom Act of 1998, Public Law No. 105–292, 112 Stat. 2787 (codified at 22 USC ¡ì 6401 [1998]).
Problems exist with regard to new religious movements and sects, an issue that sparked emotional debates in many countries and led some to enact special provisions. The United Nations Rapporteur on Religious Freedom has dealt with this subject in his recent reports. See the reports submitted by Abdelfattah Amor to the Commission on Human Rights since his appointment in 1987, the last of which is, before this writing, UN Doc. E/CN.4/58 (1999). On June 22, 1999, the Council of Europe adopted the Parliamentary Assembly Recommendation 1412 (1999) on the illegal activities of sects. The Council considered it “undesirable” to enact major legislation on sects and reaffirmed its commitment to freedom of conscience and religion (ibid.).
I have listed judicial attempts to define religion and references from legal dictionaries in my book, Lerner, Religions, Beliefs and International Human Rights, 3–4. See also Tahzib, Freedom of Religion or Belief 1–3; van der Vyer and Witte, Religious Human Rights in Global Perspective.
See John P. Humphrey, “Political and Related Rights,” Human Rights in International Law, vol. 1, ed. Theodor Meron (Oxford: Clarendon Press, 1985), 171, 176; Karl Josef Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” The International Bill of Rights, ed. Louis Henkin (New York: Columbia University Press, 1981), 209; Paul Sieghart, The International Law of Human Rights (New York: Oxford University Press, 1983).
At this stage (the sixteenth century) the abandonment of this traditional rule¡ªthat the sovereign’s religion should be the religion of everyone under his jurisdiction¡ªdid not imply the establishment of a general freedom of religion.
On these early developments, see Alessandra Luini del Russo, International Protection of Human Rights (Washington: Lerner Law Book Co., 1971). See also Evans, Religious Liberty and International Law in Europe, 42. On religious rights and minorities, see generally Lerner, “The Evolution of Minority Rights in International Law,” Peoples and Minorities in International Law, ed. Catherine Brolmann et al. (Boston: Martinus Nijhoff, 1993), 77–101; Patrick Thornberry, International Law and Rights of Minorities (New York: Oxford University Press, 1991).
On religious rights under national law, see Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, UN Doc. E/CN.4/Sub.2/200/rev. 1, UN Sales No. 60.XIV.2 (1960).
The literature on the minority treaties is immense and cannot be listed here. Recent works include Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (New York: United Nations, 1991), especially ch. 4; Felix Ermacora, “The Protection of Minorities Before the United Nations,” in Recueil des Cours 182, no. 4 (1983): 247, 347; Lerner, Group Rights and Discrimination in International Law, 2d ed. (The Hague: Kluwer Law International, 2003); Thornberry, International Law and Rights of Minorities, Yoram Dinstein and Mala Tabory, eds., The Protection of Minorities and Human Rights (Boston: Martinus Nijhoff, 1992). On the interwar experience, see Jacob Robinson et al., Were the Minorities Treaties a Failure? (New York: Institute of Jewish Affairs, 1943).
See Lerner, “The Evolution of Minority Rights”; Warwick McKean, Equality and Discrimination Under International Law (Oxford: Clarendon Press, 1983).
See Lerner, “The Evolution of Minority Rights”; Thornberry, International Law and Rights of Minorities; Lerner, “Religious Human Rights under the United Nations,” in van der Vyver and Witte, Religious Human Rights, 79, 85–86.
For the text of the Genocide Convention, see Richard B. Lillich, ed., International Human Rights Instruments, 2d ed. (New York: W. S. Hein, 1990), 130.1. On the subject generally, see Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960).
Lillich, Human Rights Instruments,130.1. Article II refers to “national, ethnical, racial or religious groups, as such” (ibid.).
On the international community’s response to ethnic cleansing in the 1990s, see part IV.D.
See Lillich, Human Rights Instruments, 440.1. On the Universal Declaration, see generally John P. Humphrey, “The Universal Declaration of Human Rights: Its History, Impact and Juridical Character,” Human Rights, Thirty Years After the Universal Declaration, ed. B. G. Ramcharan (Boston: Martinus Nijhoff, 1979), 21; Nehemiah Robinson, The Universal Declaration of Human Rights: Its Origin, Significance,Application, and Interpretation (New York: Institute of Jewish Affairs, 1958); and Asbjorn Eide and Gudmundur Alfredsson, eds., The Universal Declaration of Human Rights: A Commentary (New York: Scandinavian University Press, 1992), particularly Martin Scheinin’s article contained therein at 263.
See Lillich, Human Rights Instruments, 180.1.
See ibid., 170.1.
See ibid., 490.1.
Ibid., 490.2.
See ibid., 440.4.
See ibid.
See ibid.
For a discussion of the 1966 Covenants and the 1981 Declaration, see part IV.C.3–4.
See Lillich, Human Rights Instruments, 440.4.
Krishnaswami was appointed as Special Rapporteur by the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
See Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices.
For a discussion of the 1981 Declaration, see part IV.C.4.
For a discussion of the Draft Convention, see part IV.C.4.
See Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, 13–14.
See ibid., 16–18.
See ibid., 15, 18–19.
See ibid., 18–19.
See ibid., 26–36.
See ibid., 36–39.
See ibid., 39–46.
See Lillich, Human Rights Instruments, 180.1.
See ibid., 170.1. Some of the many works on the 1966 Covenants are: Philip Alston, “The Commission on Human Rights,” The United Nations and Human Rights,ed. Philip Alston (New York: Oxford University Press, 1992), 126; Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (New York: Oxford University Press, 1991); Theodor Meron, ed., Human Rights in International Law (Oxford: Clarendon Press, 1991); and Manfred Nowak, U.N. Covenant on Civil and Political Rights (Arlington: N. P. Engel, 1993); Partsch, “Freedom of Conscience and Expression,” 209.
See Lillich, Human Rights Instruments, 160.1.
See part IV.C.1.
See Lerner, “Religious Human Rights Under the United Nations,” 79.
See Lillich, Human Rights Instruments, 170.1.
For its text, see Human Rights Committee General Comment 22 (1994), art. 18, UN Doc. HRI/GEN/ 1/Rev.1, 35.
See Lillich, Human Rights Instruments, 170.7–170.8, 170.10.
See ibid., 170.7.
See ibid.
Ibid.
See Partsch, “Freedom of Conscience and Expression,” 210–11; Martin Scheinin, “Article 18,” in Eide and Alfredsson, Universal Declaration of Human Rights,263; J. A. Walkate, “The Right of Everyone to Change His Religion or Belief,” Netherlands International Law Review 30 (1983): 146, 153.
Lillich, Human Rights Instruments, 170.8.
On limitations in the 1966 Covenant on Civil and Political Rights, see Thomas Buergenthal, “To Respect and to Ensure: State Obligations and Permissible Derogations,” in The International Bill of Rights, 72, 78–91, and Alexandre Charles Kiss, “Permissible Limitations on Rights,” in The International Bill of Rights, 290, 295–310.
Lillich, Human Rights Instruments, 170.8.
See ibid., 170.2. Articles 29(2) and 29(3) of the Universal Declaration on Human Rights are also relevant.
Lillich, Human Rights Instruments, 170.8.
For an examination of these issues, see Leon Sheleff, “Tribal Rites and Legal Rights,” Israel Yearbook on Human Rights 18 (1988): 153; Aviam Soifer, “Freedom of Association: Indian Tribes, Workers, and Communal Ghosts,” Maryland Law Review 48 (1989): 350; Donna J. Sullivan, “Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution,” NYU Journal of International Law and Politics 24 (1992): 795.
See Lillich, Human Rights Instruments, 170.8.
See ibid., 330.1.
See ibid., 490.1.
See ibid., 423.1.
See ibid., 170.8.
See ibid.
See Sieghart, The International Law of Human Rights, 450, for details of reservations and interpretations entered to article 20.
See Lillich, Human Rights Instruments, 160.3–160.4.
See Human Rights Committee General Comment 11 (1994), art. 20, UN Doc. HRI/GEN/l/Rev.1, 12.
See Lillich, Human Rights Instruments, 170.10.
The controversy primarily concerns whether article 27 protects only individuals or minority groups as well. Tomuschat takes the first view, while Ermacora, Dinstein, and Capotorti are in favor of a more group-oriented interpretation. See Lerner, Group Rights and Discrimination in International Law, 14, 15.
See United Nations, Human Rights: A Compilation of International Instruments, vol. 1 (New York: United Nations Publications, 1994), 140.
See Lerner, Religion, Beliefs and International Human Rights, 15.
See General Comment 22.
Ibid.
See ibid.
See ibid.
See ibid.
Ibid.
See ibid.
See ibid.
Ibid.
Ibid.
See ibid.
See ibid.
See Lillich, Human Rights Instruments, 490.1.
General Assembly Resolution 1510 (XV) (1960), dated 12 December 1960. For the work of the Sub- Commission on Prevention of Discrimination and Protection of Minorities after the incidents, see UN Doc. No. E/CN.4/800, para. 163 (1960); and Resolutions 3 (XII) and 6 (XVI) on the Commission of Human Rights (1960). For an analysis of the 1981 Declaration, see Lerner, Group Rights and Discrimination in International Law, 84–108; Sullivan, “Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Intolerance and Discrimination,” American Journal of International Law 82 (1988): 487.
See Lerner, Group Rights and Discrimination in International Law,85. For the reasons why the United Nations treated religious issues differently than other human rights issues, see also Antonio Cassese, “The General Assembly: Historical Perspective 1945–1989,” in The United Nations and Human Rights,37.
See Lerner, Group Rights and Discrimination in International Law, 89.
See ibid.
Webster’s New International Dictionary of the English Language (1971) defines “intolerant” as “refusing to allow others the free enjoyment of their opinions or worship ” Elizabeth Odio Benito in Study of the Current Dimensions of the Problems of Intolerance and Discrimination Based on Religion or Belief UN Doc. E/CN.4/Sub.2/26 (1987), 3, states that manifestations of intolerance, often extending far beyond discrimination, include stirring up hatred against or even persecuting individuals or groups of a different religion or belief.
See Lillich, Human Rights Instruments, 490.2.
See ibid.
See Partsch, “Freedom of Conscience and Expression”; General Comment 22.
See Lillich, Human Rights Instruments, 490.3–490.4.
See ibid., 490.2. On several occasions, the Human Rights Committee and the European Court on Human Rights dealt with the scope of permissible limitations. The European Court clarified the meaning of “morals” in Handyside v. UK, 1 EHRR 737 (ECtHR 24, 7 December 1976).
See Lillich, Human Rights Instruments, 490.3–490.4.
See ibid. However, rights considered but omitted include the rights to observe dietary practices, to make pilgrimages, and not to be coerced to take an oath of a religious nature.
See Council of Europe, Human Rights in International Law (1995), 403 (emphasizing the rights of religious communities in Principle 16.4); see also W. Cole Durham, Jr., Freedom of Religion or Belief Laws Affecting the Structuring of Religious Communities (Warsaw: Organization on Security and Co-operation in Europe, 1999).
Not being a treaty, the 1981 Declaration did not establish such a mechanism. The reports submitted by the Special Rapporteurs do not differ, however, from similar documents to be submitted under treaty obligations.
See Lillich, Human Rights Instruments, 130.1. See part IV.0 and part IV.E for discussions of the Genocide Convention.
See Lillich, Human Rights Instruments, 70.1, 80.1, 90.1, 100.1, 200.1, 210.1.
See ibid., 160.1.
See ibid., 220.1. On the Convention generally, see Theodor Meron, Human Rights Law-Making in the United Nations (New York: Oxford University Press, 1986), 53.
See Sullivan, “Gender Equality and Religious Freedom,” 795. This article contains an extensive bibliography on women’s rights. See also Kathleen E. Mahoney and Paul Mahoney, eds., Human Rights in the Twenty-First Century (Boston: Martinus Nijhoff, 1993), 71–117.
See Lillich, Human Rights Instruments, 330.1.
See ibid., 330.2.
See ibid., 423.3.
See Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium, App. Nos. 01474/62, 01677/62, 01691/62, 01769/63, 01994/63, 02126/64 (ECtHR 6, 23 July 1968); Kjeldsen, Busk Madsen and Pedersen v. Denmark, 1 EHRR 711 (1979–80) (ECtHR 23, 7 December 1976); Angelini v. Sweden, 10 EHRR 123 (EComHR, 1988).
See Lillich, Human Rights Instruments, 320.1.
For the work of the ILO and its struggle against discrimination, see generally N. Valticos, “The International Labor Organization,” The International Dimensions of Human Rights, vol. 1, ed. Karel Vasak (Westport, Conn.: Greenwood Press, 1979), 363.
See United Nations, Human Rights 1, 475. For an analysis of the 1989 Convention (No. 169) concerning Indigenous and Tribal Populations or Peoples, see Lerner, Group Rights and Discrimination in International Law, 111–124.
See United Nations, Human Rights, 475.
See ibid., 554.
See ibid. For a critical analysis, see Ved P. Nanda, “The Protection of the Rights of Migrant Workers,” Asian and Pacific Migration Journal 2 (1993): 161.
See United Nations, Human Rights, 140. For a comparison with other provisions on minorities, see Lerner, Religion, Beliefs and International Human Rights, 33–35; also Lerner, Group Rights and Discrimination in International Law, 18–25.
See Abdullah Ahmed An-Naim, ed., Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Philadelphia Press,1992), 6; Fernando R. Teson, “International Human Rights and Cultural Relativism,” in Human Rights in the World Community, 2d ed., ed. Richard Claude and Burns H. Weston (Philadelphia: University of Philadelphia Press, 1992), 42–51; Jack Donnelly, “Cultural Relativism and Universal Human Rights,” Human Rights Quarterly 6 (1984): 400. Human Rights Quarterly 16, no. 2 (1994) carries several articles on the subject, see 235 in particular.
An in-depth discussion of the protection of religious rights by regional instruments is beyond the scope of this article.
See 213 UNTS 211 (1993). There is vast literature on the protection of human rights in Europe. For a recent comprehensive book, see Evans, Religious Liberty and International Law in Europe.
See 9 ILM 673 (1970). On the American system generally, see Thomas Buergenthal et al., Protecting Human Rights in the Americas (Arlington: N. P. Engel, 1995); Scott Davidson, The Inter-American Human Rights System (Brookfield, Vt.: Dartmouth, 1997).
For the Organization on Security and Co-operation in Europe (“OSCE”) documents, see Council of Europe. For a discussion of the OSCE’s work in general, see Arie Bloed, ed., The Conference on Security and Co-operation in Europe (Boston: Kluwer Academic, 1993). See also Durham, Freedom of Religion or Belief.
For the African Charter on Human and Peoples’ Rights, see 21 ILM 58 (1982). See also U. Oji Umozurike, The African Charter on Human and People’s Rights (Boston: Martinus Nijhoff, 1997).
See Evans, Religious Liberty and International Law in Europe.
See “Official Press Release of the Council of Europe,” Official Gazette of the Council (June 1999).
See Council of Europe, Human Rights in International Law.
See Alberto de la Hera and Rosa Maria Mart¨ªzez de Codes, eds., Spanish Legislation on Religious Affairs (Madrid: Ministerio de Justicia, 1998).
See “Holy See¡ªIsrael: Fundamental Agreement,” 33 ILM 153 (1994).
See ibid.
See Silvio Ferrari, “Concordats were Born in the West,” La Porta D’Oriente 12/13 (1998): 37–44; Lerner, “Protecting Religious Human Rights by Bilateral Arrangements,” La Porta D’Oriente 12/13 (1998): 45–55.
The controversial International Religious Freedom Act of 1998, Public Law No. 105–292, 112 Stat. 2787 (codified at 22 USC ¡ì 6401 [1998]), calls upon the President of the United States to take a range of diplomatic and other actions against any country that engages in or tolerates violations of religious freedom. See ¡ì 6441. See also the detailed list of violations of religious rights in many countries included in the reports of Special Rapporteur Abdelfattah Amor in note 4. See also Kevin Boyle and Juliet Sheen, eds., Freedom of Religion and Belief A World Report (New York: Routledge, 1997), which covers persecution against various religious groups in different countries.
On this controversial issue, see, for example, Raphael Cohen-Almagor, “Harm Principle, Offence Principle, and the Skokie Affair,” Political Studies 41 (1993): 453; Kenneth Lasson, “Racial Defamation as Free Speech: Abusing the First Amendment,” Columbia Human Rights Law Review 17 (1985): 11; and Natan Lerner, “Group Libel Revisited,” Israel Yearbook on Human Rights 17 (1987): 184.
See Ian Brownlie, Principles of Public International Law, 4th ed. (New York: Oxford University Press, 1990), 513 n. 29.
See Lillich, Human Rights Instruments, 130.1.
Ibid., 170.8
See ibid.
Human Rights Committee General Comment 11.
European Convention for the Protection of Human Rights and Fundamental Freedom, 3 September 1953, 213 UNTS 222, art. 10(2).
American Convention on Human Rights, 18 July 1978, 9 ILM 673.
See Lillich, Human Rights Instruments, 490.3.
See United Nations, Human Rights, 132.
See United Nations, Human Rights: A Compilation of International Instruments, vol. 2 (New York: United Nations Publications, 1994), 406.
See Lillich, Human Rights Instruments, 160.1; see also Lerner, The UN. Convention on the Elimination of All Forms of Racial Discrimination (Alphen aan den Rijn: Sijthoff & Noordhoff, 1980); G. Tenekides, “L’Action des Nationes Unies Contre la Discrimination Raciale,” Recueil des Cours III (n.p., 1980), 269. See also the Reports of the Committee on the Elimination of Racial Discrimination (“CERD”), the most recent of which (at the time of publication of this article) is indexed as UN Doc. A/54/18 (1999).
See Lillich, Human Rights Instruments, 160.3–160.4.
See Jose D. Ingles, “Study on the Implementation of Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination,” UN Sales No. E.85.XIV.2 (1986).
Lerner, Religion, Beliefs and International Human Rights, 53.
See Lillich, Human Rights Instruments, 160.3–160.4.
Ibid.
See ibid.
See ibid., 130.1.
“Reservations to the Convention on Genocide Case,” ICJ Reports (1970): 23.
The United Nations General Assembly and Security Council, as well as other United Nations organs and treaty bodies, adopted numerous resolutions on ethnic cleansing. See, e.g., Natan Lerner, “Ethnic Cleansing,” Israel Yearbook on Human Rights 24 (1994): 103; Theodor Meron, “The Case for War Crimes Trials in Yugoslavia,” Foreign Affairs 72 (1993): 122; James C. O’Brien, “The International Tribunal for Violation of International Humanitarian Law in the Former Yugoslavia,” American Journal of International Law 87 (1993): 639.
UN Doc. E/CN.4/1993/62, at 119. A spokesman for the UN High Commissioner for Refugees accused Serbians of “erasing all traces of a Muslim religious and cultural presence.” Chuck Sudetic, “U.N. Says `Ethnic Cleansing’ by Serbs Intensifies,” New York Times, 30 January 1994, A13.
See 32 ILM 1159–1205 (1993), containing the Secretary General’s Report and Security Council resolutions.
See ibid.
United Nations, Security Council Resolution 955, 33 ILM 1598 (1994).
See UN Doc. A/CONF. 183/9 (as corrected by the proc¨¨s-verbaux of 10 November 1998 and 12 July 1999).
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Lerner, N. (2004). The Nature and Minimum Standards of Freedom of Religion or Belief. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_3
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