" Advancing Freedom of Religion or Belief: Agendas for Change
It is far easier to speak of the freedom of religion or belief than it is to understand what, exactly, this freedom means; what, if anything, it requires; and of whom it might be required. The meaning to be ascribed to each of the words which comprise that phrase – the words ‘freedom’, ‘religion’, ‘belief’ - is strongly contested. When considered as a phrase, the difficulty of discerning their meaning is magnified many fold, and is multiplied many times more when account is taken of the myriad viewpoints from which such meaning might be sought. Yet there is a near universal consensus that ‘the freedom of religion or belief’ encapsulates an idea of worth, and a goal to be realised. This is despite there not being a consensus on what realising that idea and that goal might actually mean in practice.
So what can be done to further the freedom of religion or belief? In this lecture I wish to focus attention on the manner in which that freedom is currently being engaged with, in order to highlight what I consider to be a singularly significant opportunity to advance the realisation of at least some elements of that freedom.
As an academic public international lawyer, I am concerned with the manner in which the freedom of religion or belief is currently being addressed as a matter of international human rights law. Perhaps I should also add that although I tend not to draw a great deal on legal and human rights theory, I fully recognise that human rights-thinking is merely one way of approaching the subject, and that many people– possibly including some in this room – might have significant difficulties with taking a human rights approach to it. Whilst human rights law most certainly does offer legal protection to the freedom of religion or belief, it does so in a way which many religious believers find difficult to accept – for example, by the way in which it legitimises restrictions on some forms of religious activities in pursuit of other rights, goals or values. On the other hand, there are many who contest the legitimacy of religion or belief being accorded any special recognition as a human rights at all, and who consider that the interests of believers are adequately protected by the more general freedoms of expression, association, family life and others. This has lead to a particularly rich ‘debate’ of late on the role of religion in public life, a debate which is set to run and run. We should be glad that it may do so. But such discussions need to be put in a broader factual context.
Whilst debate continues over the rightful place of religion in the public life of a liberal democracy, day in, day out, around the world untold numbers of people continue to face the risk or reality of restriction, hostility, violence or death - on an individual or on a communal basis - because of the beliefs that they hold, or as a result of their real or perceived religious identities. Recent surveys suggest that over 70% of the world’s population live in countries where there are high or very high levels of restrictions on religious freedom.
At one level, there is something quite astonishing at the complacency of the international community when faced with the evidence of such levels of repression. It is almost as if such repression is ‘only to be expected’ or is something which believers ‘bring upon themselves’ by choosing to believe what they believe, or by believing what they believe in that particular place or at that particular time: – in short, that since they are, by and large, the authors of their own misfortunate, the remedy for their problems lies within their own hands. Behind this, however, lies a far deeper and more serious reason for this relative inertia: the entire conceptual apparatus of the ‘modern’ state, and of the structure of the international community, still remains grounded upon the political settlements arising from the 17th Century Wars of Religion. The idea of one group of states exerting itself against another group of states for the purposes of propagating religion or in order to protect religious believers takes us to a place where we have been, and to which few wish to return. As we know, the easiest way to undermine the legitimacy of any military intervention in the affairs of another state is to label it as a form of ‘jihad’ or ‘crusade’.
The same holds true of interventions of a more political or diplomatic nature. There is a very fine line between raising legitimate concerns about the treatment of religious believers and being seen as championing the cause of forces antithetical to the interests of the state – not least because it may happen to be true! It is also true that States tend to raise issues of religious freedom largely in respect of, and in response to pressure from, the religious groups which have influence within their own jurisdictions. This adds to the sense of partiality or instrumentality. I shall return to this point later, but for now we just need to acknowledge that there are a whole host of deep-seated reasons why it is not very easy for the international community to respond to the situation faced by many believers. As a result, the reluctance to do so, whilst dispiriting, is not irrational.
It is, then, all the more remarkable that there is a potential tool that can be used by the international community to address these issues –this tool being is the language of international human rights. Being realistic, I see no other way of making significant and sustainable progress in addressing the practical predicaments of religious believers other than by developing the framework of international human rights protection. This may not seem particularly controversial – but it is. There is, however, more. I think it is not only an option, but it is fast becoming a necessity in order to prevent the further erosion of the position of religious believers in many countries.
This will not be a comfortable message for those who do not like the way in which the application of human rights thinking has generated outcomes in some high profile domestic situations – such as those cases concerning the wearing of religious symbols in the workplace, in schools, in cases concerning attitudes to morality or those concerning issues of sexual orientation). I would, however, respectfully suggest that this may be something which is just going to have to be lived with (or, perhaps more positively, worked on). Without wishing to sound too apocalyptic, there is a lot at stake and, whilst certainly not trivial, matters such as these are not of an order to justify rejecting the contribution which human rights thinking can bring to the protection of religious freedom more generally.
Moreover, like it or not, international human rights law does now provide the framework within which issues concerning the enjoyment of the freedom of religion or belief are being addressed internationally, and this is going to continue for quite some time to come. It will do so well, less well, or badly – but as far as the international community is concerned, the question that counts is whether or not believers are being treated in accordance with international human rights standards.
In the time available, I will consider a number of recent developments which, in my view, suggest that there is both an opportunity and a need for new thinking on how best to proceed in order to advance the freedom of religion or belief within the international arena. Before doing so, there are two more general points which I wish to make.
First, and obviously, the rights of religious believers can and are protected by many other rights in addition to the ‘freedom of religion or belief’. Examples include the right to life, freedom from torture and inhuman or degrading treatment, the freedom of expression, of association, as well as the more procedurally oriented rights concerning detention, fair trial, the rule of law, etc, etc. These are all very valuable safeguards, and add to the attraction of human rights as a means of addressing the vulnerabilities of religious believers in many societies. At the same time, there is, in my view, a need for the freedom of religion or belief to be addressed as a human right: directly, and not merely as an adjunct to others. For those who adhere to forms of religion or belief, their beliefs represent foundational elements of their conception of life. A rights-based approach which fails to acknowledge and respect this reality is diminished and is inevitably going to lack legitimacy.
Secondly, when I speak of international human rights law as a ‘tool’, I am not only referring to its institutional machinery, such as its various Councils, Committees, Rapportuers, etc, (the strengthens and weaknesses of which need not detain us). I am also referring to the power of human rights approaches - when properly mediated through domestic, regional and international political processes - to influence the application of domestic law and administrative practice. Whilst this offers ‘no quick fix’ to the most egregious examples of abuse, it does offer real opportunities for worthwhile incremental development.
The first conclusion to be drawn from what I have said is that if faith communities wish to make a positive contribution to the protection of religious liberty they must be prepared to (a) fully engage with human rights approaches and (b) to fully engage with the relevant domestic, regional and international political processes in an informed and credible way.
The latter – credibility - is the more difficult of these two desiderata, as there is a certain asymmetry to be overcome. It is generally accepted, and expected, that States will work internationally in their own self-interest, and in the interests of their nationals. It is also generally accepted as legitimate for Non-Governmental Organisations to take an instrumental approach, aimed at the realisation of their organisational goals. But when organised Religions seek to act in precisely the same way, it is often seen negatively, and as exemplifying ‘the problem’ with religion, which is that believers are prone to act inappropriately by seeking to influence matters which are ‘not their business’.
Religious liberty is, however, the business of faith communities: the problem, perhaps, is that they are often seen as being interested only in the rights of their own, and not in the equivalent rights of others – and regrettably this is often the case. Many religious communities and organisations insist that they stand for freedom of religion or belief for all. Yet the number of religious communities and organisations which, as a central part of their work on the freedom of religion or belief, routinely defend of the rights of people of other faiths and beliefs is rather small. The predominant interest which faith communities show in the rights of their own is also quickly discerned by diplomats and others with whom religious communities seek to engage on human rights matters. Whatever the reason for it, there is a barrier here which religious communities need to overcome if they are to be listened to. Unless and until that barrier is overcome, the ability of the international community to engage effectively with the protection of the freedom of religion as a human right will be diminished for the want of those with a key stake in that process – the faith communities themselves – being able to find an effective way of fully engaging with the process. But what is there to engage with?
The Forgotten Process
The Freedom of Religion or Belief has not fared particularly well as a human right when compared to some other issues. The 1948 Universal Declaration on Human Rights sets out in Article 18 the basic approach which has been followed in most other international, and many other regional, human rights instruments. That approach is based on the idea that religion or belief is essentially a matter of individual choice and that everyone should have the freedom to hold whatever form of belief (religious or otherwise) that they wish. This ‘inner freedom’ (forum internum) is complemented by the freedom to act in accordance with the beliefs which one holds, this being achieved by recognising the additional right to ‘manifest’ one’s religion or belief in a number of ways – through teaching, worship, observance and practice. The exercise of this right to ‘manifest’ ones’ religion or belief may, however, be restricted in order to protect the rights and freedoms of others, always provided that such restrictions are proportionate to the ‘legitimate aim pursued’. This, then, provides the basic framework within which the debate concerning the contours of the freedom of religion or belief takes place.
For all its iconic status, the Universal Declaration was not intended to be a direct source of international legal obligation. The usual pattern of standard setting that has emerged within the UN is for a non-binding Declaration to be adopted by the General Assembly, and then for a legally binding Convention to be drafted and opened for adoption. It was as far back as 1956 that the UN first decided to undertake further work on the freedom of religion or belief, a process that culminated in a Report in 1960 which set out 18 draft ‘principles’. Then, in 1962 the UN General Assembly decided that Declarations and Conventions should be drafted on the twin topics of racial discrimination and on discrimination based on Religion or Belief.
Whilst the Declaration on Racial Discrimination was adopted in 1963 and the Convention in 1965, progress regarding Religion or Belief took a very different trajectory. Oddly, it was decided to draft a Convention before the Declaration: this process ground to a halt in 1967 and has not been returned to since. In the meanwhile, and belatedly, attention switched back to the idea of drafting a Declaration and this was duly adopted in 1981. This year, we mark its 30th Anniversary. So what has happened to the Convention, which would have provided a more detailed, comprehensive and rounded source of legal obligation concerning the freedom of religion or belief? The short answer is, basically, ‘nothing’. Moreover, for many years now it has been the received wisdom that it would be ‘premature’ to return to this task. This is a view which previously I subscribed to myself – but it is a view which I no longer hold. Why?
The reluctance to return to this topic has largely been driven by the worry that it might result in a lowering of existing standards rather than in the raising of them. The archetypal example of this concern relates the freedom to change ones religion or belief (though there are others). The Universal Declaration, and for that matter, the European Convention on Human Rights, expressly provides that the freedom of religion includes the freedom to ‘change’ ones religion. This is not found in the 1966 International Covenant on Civil and Political Rights which merely speaks of the right to ‘have or to adopt’ a religion of one’s choice. The 1981 Declaration takes a further step backwards, referring only to the right to ‘have’ a religion. Although it is routinely argued that the right to change one's religion is inherent in the very concept of the freedom of religion or belief, this is not universally accepted. (If any reminder of this were needed, attempts were made to insert a reference to the right to change one’s religion or belief in the annual Resolution on the Freedom of Religion or Belief when it was being debated within the UN Human Rights Council in March of this year, but with no success.)
At its most basic, the arguments against returning to the drafting of a UN Convention on the Freedom of Religion or Belief all come down to the argument that it would be unwise to run the risk of unsettling the consensus that exists around the existing accepted standards. This argument fails on at least three counts.
First, it fails because the ‘consensus’ is largely absent. There is no consensus. At best, there has been a consensus around the general ‘approach’ found in Article 18 of the UDHR, but only in the most abstract of fashions. Not only has there been ‘push back’ on some elements of Article 18 ( - for example, the issue of ‘change’ of religion), but there is little consensus over how it is to be applied in practice – as evidenced by the controversies unleashed by decisions of the European Court of Human Rights applying the similarly worded Article 9 of the ECHR on issues such as: bans on headscarves in Universities in Turkey, the appropriateness of forms of religious education in state school curricula; the presence of crucifixes in classrooms – and much else besides. Moreover, the ‘thin’ consensus around the approach exemplified by Article 18 and Article 9 is itself increasingly fragile as it is based upon the idea of there being a clear public/private divide – but this is fast disappearing into an ever expanding grey zone in which everything is ‘up for grabs’.
Secondly, it fails – I would argue – on the grounds that the current ‘consensus’ has done little to combat the rising tide of restriction, hostility and violence experienced by many religious believers. The achievements of the current ‘consensus’ position are not so impressive that it would be running too great a risk to open it up to debate.
Thirdly, and most decisively, that debate has already been opened up anyway. But rather than being conducted in an open and transparent fashion, focussed on enhancing the level of protections offered to all those whose freedoms of religion or belief are under threat, it has been done in ways which tend to do more harm than good: these being the 'Defamation of Religions Debate' and ‘the Rise of the Phobias’, to which I now turn.
The ‘Defamation of Religions’ Debate
It is beyond doubt that the freedom of religion has a collective dimension. However, this does not mean that human rights law should be used – by individuals or by religious bodies - to promote particular religious values, or to protect believers or beliefs from critical or even offensive comment. Nor should it be used to restrain others from behaving in ways which believers deem to be inappropriate. (There are some caveats to this but they need not concern us at the moment). The starting point for human rights law should be the right of the individual believer – alone or in community with others - to hold and to act in accordance with their beliefs. Generally speaking, it is only if the level of adverse comment, criticism or behaviour reaches a level of intensity which prejudices the ability of a believer to exercise their own freedom of religion or belief that grounds for intervention arise.
Nevertheless, this has not prevented concerted efforts being made within international fora to support the very opposite idea – the idea that States should be entitled to use their legal powers to restrict those who seek to ‘defame’ a religion. The claim is that restrictions should be applied to those who fail to respect the values of the religious system in question. It is on the basis of such approaches that action is taken against those who oppose apostasy or blasphemy laws. It is also on this basis that action is taken against those whose lifestyles and mores do not accord with those espoused by the dominant. The precise parameters of the idea have always been rather vague, but this has not stopped the UN from adopting a resolution annually since 1999 in support of restrictions on those who 'defame religions' (albeit with ever declining majorities). Since the Resolutions were couched in the language of the promotion of tolerance and respect, and combating negative stereotyping of religion, it is easy to see why these resolutions resonated with many. But over time their repressive potential has come to be recognised. As a result, the language used in the Resolutions began to shift away from ‘defamation of religions’ and towards the more widely accepted language associated with ‘combating incitement to religious hatred’.
In March of this year (2011) it appeared that the ‘defamation debate’ had finally been put to rest when the Organisation of the Islamic Conference (the Organisation which has been co-ordinating the defamation resolutions) failed to put forward a resolution on this topic, but presented and secured the adoption, without a vote, of a snappily entitled resolution on ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against[,] persons based on religion or belief’. Inter alia, this Resolution calls on States ‘To foster religious freedom and pluralism by promoting the ability of members of all religious communities to manifest their religion, and to contribute openly and on an equal footing to the society’ (para 6(b)) – but its principal thrust is on the need to tackle incitement to religious hatred.
There is no doubt that this marks a significant change in approach, both practically and conceptually. There is, however, a major difficulty with approaches based on ‘incitement’ and this concerns the point at which one seeks to intervene to prevent it. At one end of the spectrum lies intervention in order to prevent the imminent risk of violence, at the other lies intervention in order to suppress forms of expression or activities which challenge, question or merely run contra to the values of others, and to which they might object.
It is fair to say that the recent UN Resolution HRC/16/18 lies closest to the former rather than the latter end of the spectrum - though traces of the latter are also to be found within it. But it may be that celebration is premature. Less than one month after the Resolution was passed, a quite extraordinary situation emerged within the ad hoc group on ‘complementary standards’. This is the rather opaque name given to the process that arose out of the Durban Review Conference to consider strengthening action against racial discrimination, by undertaking further standard setting activity. At its session in April 2011, the newly elected Chair, having first attempted to adopt a ‘blank’ agenda (i.e., so no-one would know in advance what they had agreed to discuss), was persuaded to identify at least some of the proposed topics in advance - and one of those included in the list of four concerned the parameters of ‘incitement to religious hatred’, raising concerns in some quarters that the same issues previously pursued from the perspective of ‘defamation of religion’ were about to come back yet again, but in another guise.
There are more examples of such things, but the point I wish to make is simply this: the realisation that ‘defamation of religions’ was more likely to serve as a tool of repression than as a tool of religious freedom resulted in the language of the debate being shifted to the more widely accepted and legitimated language of combating incitement to religious hatred (and who – in principle – is going to object to that idea?) The problem lies in the malleable contours of that concept, and it may well be that all that has happened is that the substance of the issue has just been transferred from one forum to another. In other words, the forces which seek to subvert the freedom of religion and convert it into a means of repression remain alive, well, and focussed.
The question which continually gets lost in these twists and turns is really rather simple, but really rather important: and it is –‘why not start with the idea of the freedom of religion or belief for everyone, rather than focussing on the action to be taken against those who denigrate the beliefs of others?’ Tackling those who gratuitously attack religious believers is of course an important element of a protective framework – but it can hardly provide its starting point, let alone comprise that framework.
In reality, most of the restrictions placed on the freedom of religion or belief - and, therefore, much of the hostility and violence which believers face - are not the product of anti-religious sentiment within the populous at large. They are a result of the negative stereotyping, antipathy, or down-right hostility displayed by many state systems either to certain forms of religion or belief in particular , or to all forms of religion in general. Calling upon states to address these problems by taking action against those who denigrate religion is all very well, but such an approach fails spectacularly to address the overriding problem, which is how to hold States to account for their own failure to respect and protect the rights of all believers. This, I would suggest, would be very much better place to start – and is at the heart of what human rights commitments under international law are actually all about.
It is very tempting for religious communities to accept the protection and support which a State might offer them, even when that support takes the form of repressing the rights of others – and it can be very difficult to champion the rights of those whose views one might believe to be profoundly wrong. Yet if religious communities are genuinely interested in furthering the freedom of religion or belief, this is exactly what they must do. Faith communities must reject the superficial attractions of claiming or accepting such freedoms for themselves alone, and unhesitatingly support the freedom of religion or belief for all. Unless or until religious communities are prepared to champion for everyone the freedoms that they wish their own followers to enjoy, there is likely to be little opportunity for seriously furthering the freedom of religion or belief at all.
The Rise of the ‘Phobias
A second area in which developments have taken place is in the related field of tackling anti-Semitism and Islamaphobia. Both are discernible phenomena which are founded on hatred, prejudice or fear, and both are causes of serious concern. It is right that they be tackled. But how?
There are considerable dangers in tackling the hostility experienced by some religious groups by offering them heightened degrees of legal protection which is not offered to others. As we know only too well, those who consider themselves to be subject to the same disabilities but who are excluded from the scope of protection provided inevitably become aggrieved and this becomes a source of friction – as we know from the troubled history of blasphemy laws both in this country and elsewhere. And do we want to encourage a ‘competitive approach’ to victim status? Should we develop concepts of Baha'iophobia or Jehovah's Witnessophobia, given that in different parts of the world followers of both these faiths experience extremely serious violations of their rights and freedoms?
Yet this has already happened – to some acclaim – as regards Christianity itself. It is true enough that an increasing number of Christians have begun to feel increasingly marginalised within parts of Western Europe, as general societal assumptions concerning the place of Christianity within the order of things has evolved. This has been taking place at a time in which the extent of anti-Christian violence in other parts of the world has been both increasing and become increasingly visible. There has been some conflating of these two separate phenomena – despite their extremely different contexts – and, as a result, there have been an increasing number of calls for action to be taken against ‘discrimination against Christians’, or ‘Christianophobia’. In March 2009 the OSCE organised the first ever round table on ‘Discrimination against Christians’ within an international organisation and the use of such language has now become fairly commonplace in international political fora. Yet it is also noticeable that some of those who have been most vocal in promoting concepts of Islamophobia and Christianophobia and the like are chiefly interested in western Europe – and have paid less attention to even their co-religionists in places such as Belarus, Central Asia, or the South Caucasus who experience severe violations of the freedom of religion or belief – let alone the plight of others. This suggests that such concepts all too easily lend themselves to special pleading, and takes up time that might be better spent focussing the attention of the international community on the severe violations of the freedom of religion or belief that continue unabated and – largely – unaddressed.
Be that as it may, in it clear that there has been a significant change of approach within international organisations which have been increasingly willing to make statements in support of Christian groups facing hostility, discrimination and violence across the world: Notable recent examples include a resolution of the European Parliament on 21 January 2011(followed by a broad ranging Conclusion on the Freedom of Religion or Belief by the Council of the European Union on 21 February 2011) and the Resolution of the Parliamentary Assembly of the Council of Europe of 27 January 2011 (which has been followed by further work in its Committee on Legal Affairs and Human Rights). The OSCE returns to the subject in September of this year, with a special meeting on ‘Preventing and Responding to Hate Incidents and Crimes and Christians.’ After a ‘wilderness period’, a so-called ‘Christian agenda’ is firmly established on the political map along with Anti-Semitism and Islamaphobia.
As I have said, there is, I fear, danger in this approach. Organised religions should not be entering into unhealthy competition with each other in order to gain recognition as a ‘particularly persecuted category’ in order that they are able to gain the attention of the political process. What, for example, would be the threshold of persecution which needs to be crossed? Do we want to encourage a competition for victim status?
Moreover, all this does is magnify the perception that those involved in advancing such concerns – no matter how legitimate they may be – are motivated by preference or partisanship, and this serves only to undermine both the effectiveness and the legitimacy of the views expressed or the action taken in the eyes of those to whom they are addressed. As a result, such approaches can fuel the very hostility which they are intended to address. Whilst it is of course entirely proper that the particular needs of particular groups are highlighted when it is appropriate to do so, the problem is that - like the defamation debate – ‘phobia- isation’ has become a surrogate for the lack of progress (or the unwillingness to confront) the underlying issue, which is the lack of a real understanding of, and commitment to, the freedom of religion or belief for all.
Are there signs of positive change? I think there are. It would be wrong of me to end without noting that the UK Foreign Office has recently highlighted the freedom of religion or belief as a key human rights concern, a concern further highlighted in the Foreign Secretary’s Easter Message, and others. The European Union is also now taking a keen interest and will be developing its strategies and approaches in the months to come. There is, then, a great deal of thinking taking place - but it is taking place in disparate and disconnected fora. Not only is this disconnected approach undesirable in its own right, it also makes it very much more difficult for others – including religious communities - to know what is happening and to become involved.
I have already said that I consider it essential that religious communities do find effective ways of contributing to such developments, in a non partisan fashion. Perhaps even more importantly, I believe it to be essential that they try to influence the manner in which the freedom of religion is addressed by the international community – and that they encourage it to be focussed upon what the freedom of religion or belief means, on what it requires, and of whom it is required. Rather than being a celebration of a thing of worth, the approach currently adopted by the international political community remains focussed on restrictions on the rights of others, and is dominated by the language of special pleading, disadvantage, hostility, and hate. This must change.
I have no doubt that freedom of religion or belief is attaining a prominence in international affairs unforeseen and unforeseeable even five, let alone ten years ago. The reasons are distressingly negative – based as it is on increasing levels of repression and violence against believers of many faiths. But there does not seem to be any momentum within the international community to address the issues at the heart of the problem. Instead, the dominant agendas are those I have mentioned – defamation of religions, incitement to religious hatred, combating anti-Semitism, Islamophoia, Christianophobia, Discrimination against Christians, etc, etc. These agendas all run the risk of being self-defeating by being overly self-serving, particularly if they are the only agendas which are being pursued.
Hence there is a pressing need to return to the well-spring from which all else flows, but from which there seems to be a reluctance to draw. This involved developing a more precise understanding of what the freedom of religion as a human right actually entails, and to do so in a coherent and transparent fashion to which all interested parties can contribute. We might then be better placed to develop the means by which it can be realised.
This is an agenda indeed! It will require the willingness to stand back from the advancement of partisan agendas, look beyond immediate concerns for co-religionists and – whilst seeking to address those concerns as best one might – not loose sight of the need to ensure that everyone should to able to enjoy their religion or belief, whatever that might be. This ought to be our entry point into the question – and reconsidering the question of whether we should recommence the process of producing a global legal instrument on the freedom of religion or belief might be a very good place to place to start – rolling back the essentially negative approaches of recent years and championing a more positive vision of what religious freedom has to offer.
What should Christians – and indeed those of other faiths and none - do to further freedom of religion or belief? As people of faith it is up to us to champion the causes of others as well as of ourselves. And we must do this based on a positive understanding of the value of freedom of religion or belief for all, grounded as that is in our own understanding of church, conscience and the common good. For if religious believers will not stand up for the religious freedoms of others, irrespective of their faith, why in heaven’s name should anyone else?"