Nazila Ghanea is director of International Human Rights Law Programmes at the University of Oxford, where she is also deputy director of the Department for Continuing Education. She is vice chair of the Board of Governors of the Universal Rights Group. Ghanea has authored academic and UN publications, including the monograph Freedom of Religion or Belief: An International Law Commentary (2016).
In the last decade, there has been a rich build up in experience with “international religious freedom policy.” However, there are a number of flaws that keep being repeated in these policies and initiatives. Why should they be considered flaws?
Religion or Belief
The first thing that needs addressing is the term itself. Though invited to address “international religious freedom policy,” I will take a broader focus by addressing “international freedom of religion or belief policies.”
As far back as the late 1940s, the international community determined the scope of this freedom to include thought, conscience, religion, and belief. This was enshrined in Article 18 of the Universal Declaration of Human Rights (UDHR). The shorthand for this broad scope is “religion or belief.” This departed from the language of President Roosevelt’s 1941 Four Freedoms, where he posited the “freedom of every person to worship God in his own way—everywhere in the world.” It also departed from the First Amendment language of the U.S. Constitution and of the scope outlined in the American Declaration on the Rights and Duties of Man, which was adopted some six months before the UDHR. The UDHR was a turning point in this regard, and the European Convention on Human Rights, which opened for signature some two years after the adoption of the UDHR, also captured this broader scope.
Further to that turning point, the broad scope of this freedom has crystallized since the adoption of General Comment 22 of the UN Human Rights Committee; the Article 18 jurisprudence of the committee; 35 years of mandate practice of the UN Special Rapporteur on Freedom of Religion or Belief; and numerous regional human rights standards and national constitutions, as well as their respective case law. It is therefore surprising just how many foreign policies, networks, and appointments have still been adopted with the nomenclature of religious freedom instead of freedom of religion or belief. Many have subsequently either changed the nomenclature or explained that, despite the narrower language, the intent is to protect the full freedom as captured in international human rights law.
As the UN Human Rights Committee outlined in General Comment 22, this freedom “is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others.”. It “protects theistic, non-theistic 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. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions” (no. 1, 2).
Build on Hard-Won International Consensus
The above is only one instance where policy initiatives have failed to connect with international human rights law. There are many others, and a few examples will be raised of how painstaking international negotiations have been around some of these issues.
The international community has had experience in seeking to advance this freedom for over seven decades. The 79-page study carried out by the UN independent expert of the Sub-Commission on Human Rights, Arcot Krishnaswami, in 1960 remains surprisingly pertinent with detailed observations that still hold true today. The international community exerted effort over 21 years to have the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination on the Basis of Religion or Belief adopted. The 2012 Rabat Plan of Action also took much investment of effort by the UN Office of the High Commissioner for Human Rights, experts, and concerted diplomatic muscle. The plan reflects the international consensus that resulted after 13 years, on the prohibition of advocacy for national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence—the balance struck between freedom of expression and freedom of religion or belief.
In sum, it is certain that freedom of religion or belief can benefit from wise leadership, fair-minded international champions, and determined diplomatic commitment. However, it makes no sense at all for these to not draw from decades of established legal commitments and standards, especially since they were so hard won.
Enhance—Not Undermine—the Universality of Human Rights
If diplomatic initiatives do not purposefully connect with the international consensus developed around this right, the risk of splintering off becomes very real. At best, this will merely take energy away from a human right that needs all the support that it can get. At worst, it may risk undermining the international standing of a right whose description as the “stepchild of human rights” already attests to its need for robust support. It does not follow from the emphasis on such coherence that each and every appointment, mandate, network, or other policy initiative should only take on board the full remit of freedom of religion or belief.
The horizon and focus of policy efforts may relate, for example, to specific areas intersecting with freedom of religion or belief—including minorities, expression, and mass atrocities, for example. What we need is not uniformity, but clarity as to the relationship between these freedom of religion and belief policies and existing standards. We also need these policies to acknowledge the inclusivity and broad scope of this right. By laying this out clearly, the contribution of such initiatives can be magnified and their resources and partners extended. By doing so, such policy contributions will enhance—and not obfuscate—the universality of human rights.
Take Initiative on Solid Foundations
A final set of challenges relate to what may prove to sometimes be an uneasy fit between diplomatic exigencies and freedom of religion or belief. Firstly, these policy efforts need to result from support struck across party divides. Giving the impression, domestically, that this human right is conservative rather than liberal is very damaging to the fabric of human rights. Secondly, freedom of religion or belief, and indeed all human rights, should be judged as having been respected or violated on the basis of human rights standards. Their violation should not be deemed more tolerable when it is carried out by allies rather than by adversaries. To enjoy any kind of credibility, policies in this arena require honesty and consistency.
Link Domestic or Regional Experience with Foreign Policy
Finally, and perhaps most challengingly, credibility and sincerity will be much enhanced if a policy initiative looks both domestically and internationally. The words of a diplomatic appointee or body will enjoy far greater resonance if they share challenges in the field of freedom of religion or belief at home with diplomatic counterparts abroad.
It may be that the violations to freedom of religion or belief at home are not on par with those a government seeks to address with egregious violators abroad, yet linking domestic experience with foreign policy will have a far greater chance of opening doors and deflecting criticism of interference. This linkage will also protect those whom a government may be seeking to relieve from persecution. Building on sincere introspection allows for a policy position of authenticity and strength.