Berkley Center

The increase in international human rights standards and mechanisms over the last decades has considerably expanded the notion of a right to freedom of religion or belief meant to accommodate the specific needs of Indigenous peoples. Article 12 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) affords protections not only for the manifestation and practice of religious and spiritual traditions—which echoes that of the more conventional concept of religious freedom—but also for access to and maintenance of religious and cultural sites, ceremonial objects, and repatriation. This “material turn” in rights protection represents a significant departure from earlier generations of human rights, expanding the scope of protection for the religion of Indigenous peoples.

Importantly, however, the UNDRIP provides a different context and vocabulary for religious freedom than earlier instruments, notably the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and regional human rights treaties around the world. Where these instruments identify individuals as the primary rights-holders, the provisions of the UNDRIP oscillate between the phrases “indigenous peoples” and “indigenous peoples and individuals” to identify the holders of the rights it enumerates [1]. This distinction is vital, as it goes to the heart of the modern human rights project and the perpetual struggles to determine who can be legitimate rights-holders under international law—groups or individuals. Article 12 mandates that rights-holders to the manifestation and practice of spiritual and religious traditions are “indigenous peoples”—not the more expansive “peoples and individuals.” This is a clear break with the terminology of earlier instruments, like ILO Convention no. 169 article 5 and article 27 of the ICCPR, both of which juxtapose groups and individuals as rights-holders. 

The decision to make peoples not only the primary but sole rights-holders to religious freedom represents an important and overlooked shift in the ways in which international human rights law frames and governs religion. While a collective dimension to religious freedom has long been recognized as a corollary to the individual right to freedom of religion, it has always been secondary to the individual dimension. With the formulation chosen in the UNDRIP, on the other hand, the individual is not only dethroned from its position of primacy, but excluded as a legitimate rights-holder in this specific area. The choice of wording is not coincidental, but the result of an effort to make the right more efficient in the struggle to protect Indigenous peoples’ collective rights. Legal scholar Alexandra Xanthaki has argued that the individual nature of religious freedom in established instruments has made it “of limited use” to Indigenous peoples. Xanthaki considers article 12 to be “an important step forward” that “may have a considerably positive effect on Indigenous peoples’ rights.”

The decision to make peoples not only the primary but sole rights-holders to religious freedom represents an important and overlooked shift in the ways in which international human rights law frames and governs religion.

While the formulation of article 12 may well prove efficient to some Indigenous peoples, it is difficult to overestimate the conceptual change such a turn would require upon implementation in domestic law: The very notion that religious collectives can be sole rights-holders in themselves—in particular without some form of established, recognizable organization, institution, or other legal entity—is foreign and unfamiliar to most modern, liberal legal systems, whether common or civil. To make such a legal category workable will require a fundamental rethinking of the boundaries between law, religion and state. In particular, it will be difficult to reconcile the collective right envisioned for Indigenous peoples in UNDRIP article 12 with the individual right to freedom of religion or belief for Indigenous and all other individuals—protected under article 18 of the UDHR and ICCPR [2]. Although the emphasis on the group over the individual may represent an important step in the struggle to recognize different forms of sovereignty, thereby establishing an entirely new framework for who can be legitimate holders of rights, the difficulties in ironing out these differences may prove challenging to the ongoing work to implement the UNDRIP in domestic law around the world. As human rights scholar Nazila Ghanea has observed for minority rights, the primacy and relative longevity of the “freedom of religion or belief” umbrella has all but sidelined competing rights conceptions regarding religion.

To make such a legal category workable will require a fundamental rethinking of the boundaries between law, religion and state.

Parallel to the drafting and adoption of the UNDRIP, increasing numbers of Indigenous peoples and Indigenous rights groups have turned towards the conventional notion of religious freedom to stake their religion-based claims in the face of government incursions. The right cannot possibly offer full accommodation and recognition to the religious and spiritual traditions of Indigenous peoples, nor can it offer such protection to any other religion. As a right framed by ideological, political, and legal struggles following World War Two and tempered by the stalemate of the Cold War, the terms and conditions that apply to the freedom of religion or belief will always only offer partial protection and incomplete translation of core concepts of religious traditions.

Importantly, similar limitations will inevitably haunt the UNDRIP as it makes its difficult way from international ambition to domestic reality: No legal rule can offer a complete solution for every instance it is set to regulate. Nevertheless, by excluding Indigenous individuals from the scope of article 12, the drafters of the UNDRIP may have made an already arduous process even more daunting. 

1. This is with the exception of the Banjul Charter, which offers protections for “human and peoples’ rights.” Article 9 on religious freedom, however, is framed as an individual right.
2. Xanthaki has pointed to article 1 and 46 of the UNDRIP as a way out, because they “…place the text of the Declaration within the general standards of international law, including its well-known principles of solving conflicts between human rights.”
   

   This, however, is too simplistic—conflicts between human rights are not solved by limitation clauses. Rather, limitation clauses provide a battleground for the establishment of the proper boundaries between rights, such as the boundaries between the collective right to freedom of religion in UNDRIP article 12 and the individual right to freedom of religion in ICCPR article 18.