Does international law adequately protect freedom of religion?

Freedom of religion is enshrined in a number of international instruments, most notably the 1976 International Covenant on Civil and Political Rights, which defines it as the right to have or adopt a religion or belief of one’s choice and to manifest it in private or in public, free of coercion, through worship, observance, practice, and teaching.

The UN General Assembly has passed a number of non-binding declarations affirming freedom of religion as a universal right, notably the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

Many countries guarantee religious freedoms through constitutional or legislative means. Canada in particular is known for its juridical emphasis, through liberal interpretation and strict enforcement, of the freedom of religion provided under s. 2(a) of the Charter of Rights and Freedoms.

So it would seem that freedom of religion has come a long way in recent decades. However, despite broad acknowledgement that freedom of religion is a fundamental right, there are glaring discrepancies between the way in which international law protects the rights of religious groups and the way in which it protects those of women, children, ethnic groups, and others. As Chon and Arzt point out, no credible international mechanisms exist to address violations of religious freedom, while many address violations of other human rights. There is no “Convention on the Elimination of Religious Discrimination” analogous to the Convention on the Elimination of all forms of Racial Discrimination. No international body, not even one “as toothless as a United Nations standing committee,” exists for the sole purpose of upholding religious freedom.

This is problematic for a number of reasons. For one, it demonstrates a lack of seriousness on the part of the international community. It suggests that the human rights of religious minorities are somehow less important or at least less worthy of protection than those of racial minorities or other disenfranchised groups. Another problem, which is both a cause and a result of the lack of international emphasis on protecting religious freedom, is that no clear legal definition of “religion” currently exists. As T.J. Gunn addresses in depth in an article in the Harvard Human Rights Journal, this presents a number of difficulties. How can countries fulfil their international commitments to uphold freedom of religion when there is no consensus on how the term should be understood? In the absence of a universal definition, how can we expect any consistency between or even within countries’ domestic law in this regard?

Not only do these issues play out in day-to-day decision making (for example, by the adjudicator who must decide if a particular asylum-seeker meets the criteria for persecution on the basis of religion) but they also raise questions as to scope of applicability and relationship with other norms. For example, can freedom of religion override contractual undertakings? Can it be exempted from prohibitions on racial discrimination? What limits exist on the sorts of practices that are protected? These sorts of questions arise frequently and lack clear consensus, their outcomes vary enormously from one jurisdiction to another. The definition of religious freedom laid out in the International Covenant on Civil and Political Rights does not even begin to adequately address any of these issues, and the lack of shared principles is surprising given that the international community has affirmed freedom of religion as a fundamental human right.

In an attempt to address some of the holes in international law with regard to the universality and the enforcement of religious freedom, the 56-state Organization of the Islamic Conference (OIC) has recently renewed a push for the adoption of international measures to prevent the defamation of religions. This is seen as an effort to address the drastic drop in Islam’s standing in Western eyes following September 11^th, 2001, and perceived widespread attacks on the Muslim faith, such as the 2006 publication in Denmark of cartoons mocking the prophet Muhammed. The idea is that since religion is recognized as a fundamental human attribute in the same way as race, why shouldn’t denigration of Islam be accepted as a violation of Muslims’ human rights in the same way that denigrating black people is a violation of their human rights?

This move by the OIC to expand freedom of religion to preclude blasphemy is strongly opposed by most other countries. One reason for the widespread opposition is the emphasis liberal societies place on freedom of speech. However, most countries recognize that this freedom has limits, particularly when it comes to inciting violence. Moreover, many countries without strong traditions of free speech also oppose the OIC’s move. Another objection is that human rights law exists to protect people, not ideas. There is here an attempt to differentiate between insulting Islam and insulting Muslims. Due especially to the historic role of religion in governing societies and the global trend toward secularism in recent centuries, the right to express opposition to religious tenets is seen as an important political freedom. It is still commonplace for states to define themselves on the basis of religion (by adopting an official state religion), thereby tying religious pluralism to political dissent.

In some ways, then, religion is distinct among the fundamental attributes that are protected under s. 15(1) of the Canadian Charter, which also include race, national or ethnic origin, colour, sex, age, and disability. It can be argued that international law treats religion differently than these other factors because, though religion is inherent to many people’s identities, it is thought of as a set of ideas, constituted by individuals – in contrast with race and sex, for example, which are thought of as attributes, constituting individuals.

It is perhaps ironic that the countries in the OIC that are calling for an expansion of the right to freedom of religion are among those who rank lowest in the world in upholding conventional religious freedoms domestically. This suggests the possibility that their move may not be driven by a desire to uphold the rule of law, but rather by more narrow political interests. However, regardless of its motivation, the move underscores the importance of establishing and enforcing broadly agreed-upon norms pertaining to such an important right as freedom of religion.

Canada has long been a leader in human rights legislation, especially with respect to freedom of religion. Federal and provincial human rights acts in Canada, particularly those defining and punishing hate speech, go beyond the legal instruments of most other countries (though many argue that the Canadian approach goes too far). Clearly, what is needed is for the international community to adopt a more unified approach to protecting what it recognizes to be an important human right. The first step to doing so is to define just what it is that we are trying to protect.

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