3 International Instruments on Freedom of Religion

Prof. Abhishek Sudhir

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1. Learning Outcomes

  • To give students an overview of the different international declarations, conventions and charters guaranteeing the right to freedom of religion and conscience;
  • By the end of the module students will have an understanding of international human rights law on freedom of religion and conscience.

2. Introduction (Voice Over)

Various international instruments passed under the aegis of the United Nations recognise an individual’s right to freedom of conscience and religion. These instruments help in protecting the rights of an individual by providing certain minimum safeguards which are to be adhered to even if State (domestic) law does not provide for the same. Further, the repeated recognition of the right to freedom of conscience and religion in international instruments can lead one to conclude that the right is now a part of customary international human rights law and must be respected even by States that are not a party to these instruments.

3. International Bill of Rights and the Right to Freedom of Religion

Three landmark instruments formulated under the auspices of the United Nations viz., Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights together constitute the International Bill of Human Rights.

3.1. United Nations Charter

The United Nations Charter is the foundational treaty of the United Nations (UN) and every member-State of the UN is bound by it. The Charter puts an obligation on member parties to promote and encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. The General Assembly is under the obligation to give recommendations so as to implement these principles in reality. The UN itself is obliged to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

3.2 Universal Declaration of Human Rights

The Universal Declaration of Human Rights is a declaration of human rights by the United Nations General Assembly of certain rights that each and every person, irrespective of nationality, race, religion or sex, is entitled to as a human being.

The declaration provides every person the right to freedom of thought, conscience and religion; including in it the freedom to change one’s religion, and freedom, either alone or in community with others and in public or private, to manifest religion or belief in teaching, practice, worship and observance. Article 26 of the declaration provides that education imparted by the States should be such that promotes understanding, tolerance and friendship among different religious groups.

3.3 International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty which was adopted by the United Nations General Assembly on 16 December 1966. It is monitored by the United Nations Human Rights Committee. 168 countries are party to the convention with 74 of them being signatories to it.

Article 18 of the ICCPR provides the following:-

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Additionally, Article 26 of the ICCPR ensures equality of persons on grounds of religion.

3.4 International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and entered into force from 3 January 1976 .It is monitored by the UN Committee on Economic, Social and Cultural Rights.

Article 13(1) of ICESCR provides that:

The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

Article 13(3) of ICESCR further provides that

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. Various Sources of Customary International Law on Religious Freedom

4.1 Human Rights Committee, General Comment 22 on Article 18, UDHR

“General Comment” is comments or recommendations adopted by any of the bodies established under various UN treaties for the promotion and protection of human rights. The Comment seeks to narrow the scope of certain limitations on the freedom of religion as they are delineated in Article 18 of the Universal Declaration of Human Rights, allowing legal restrictions on religion for the protection of safety, order, or others’ rights.

Human Rights Committee’s General Comment 22 on Article 18 of Universal Declaration of Human Rights provides the following:-

3. Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19.1. In accordance with articles 18.2 and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief.

Further, the committee has extended the protection of UDHR to atheists as well.

5. The Committee observes that the freedom to “have or to adopt” a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief.

Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2. The same protection is enjoyed by holders of all beliefs of a non-religious nature.

4.2. Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (UNCRC) adopted on 20 November 1989 by UN General Assembly and came into force on 2 September 1990. It has 194 parties and 140 signatories. The Compliance of the convention is monitored by the UN Committee on the Rights of the Child which annually submits a report to the Third Committee of the United Nations General Assembly. Parties that have ratified the United Nations Committee on the Rights of the Child are required to report their progress with regards to the status of the implementation of the Convention and the status of child rights in their country.

Article 14 of the convention given below protects the religious rights of the child.

  1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
  2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

4.3 Convention against Discrimination in Education

Convention against Discrimination in Education is a multilateral treaty adopted by United Nations Educational, Scientific and Cultural Organization adopted in 14 December 1960, which came into force on 22 May 1962.

Article 1 of the Convention prohibits discrimination on grounds of religion, and places a bar on actions that:

  • Deprive any person or group of persons of access to education of any type or at any level;
  • Limit any person or group of persons to education of an inferior standard;
  • Subject to the provisions of Article 2 of this Convention, establish or maintain separate educational systems or institutions for persons or groups of persons; or
  • Inflict on any person or group of persons conditions which are in-compatible with the dignity of man.

Article 5 also places the following obligation on parties to the Convention:

  • Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; it shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace;
  • It is essential to respect the liberty of parents and, where applicable, of legal guardians, firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as may be laid down or approved by the competent authorities and, secondly, to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their own convictions; and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their convictions.

4.4 Universal Islamic Declaration of Human Rights

The Universal Islamic Declaration of Human Rights is a document created by different Islamic Councils around the world, with the aim of restating basic human rights as understood by Islamic Jurisprudence. The document is drafted from a unique perspective, as it seeks to provide religious liberty from viewpoint of a one particular religion. The need for such a declaration arose due to fact that Islamic countries such as Saudi Arabia and Iran consider Universal Declaration of Human Rights to be violative of Sharia law and has accused it of being a “secular understanding of the Judeo-Christian tradition” which could not be adhered to by the followers of Islam. Some of the important clauses from the declaration are as follows:

XII Right to Freedom of Belief, Thought and Speech

  • Every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the Law. No one, however, is entitled to disseminate falsehood or to circulate reports which may outrage public decency, or to indulge in slander, innuendo or to cast defamatory aspersions on other persons.
  • Pursuit of knowledge and search after truth is not only a right but a duty of every Muslim.
  • It is the right and duty of every Muslim to protest and strive (within the limits set out by the Law) against oppression even if it involves challenging the highest authority in the state.
  • There shall be no bar on the dissemination of information provided it does not endanger the security of the society or the state and is confined within the limits imposed by the Law.
  • No one shall hold in contempt or ridicule the religious beliefs of others or incite public hostility against them; respect for the religious feelings of others is obligatory on all Muslims.

XIII Right to Freedom of Religion

Every person has the right to freedom of conscience and worship in accordance with his religious beliefs.

4.5 Convention on the Elimination of All Forms of Discrimination Against Women

The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General Assembly. The Convention has 188 parties and 99 signatories. Article 16 of the convention tries to do away with inhuman religious practices such as child marriage, and provides equality to women in a marriage.

Unfortunately, India has made following reservations with regard to Article 16 making it almost ineffective:

“i) With regard to articles 5 (a) and 16 (1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent.

ii) With regard to article 16 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions and level of literacy.”

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Reference

  • Baderin, Mashood A. International human rights and Islamic law. Oxford University Press, 2003.
  • Janis, Mark W., and Carolyn Maree Evans, eds. Religion and international law. Martinus Nijhoff Publishers, 1999.
  • Morsink, Johannes. The universal declaration of human rights: Origins, drafting, and intent. University of Pennsylvania Press, 1999.
  • Tahzib, Bahiyyih G. Freedom of religion or belief: Ensuring effective international legal protection. Vol. 44. Martinus Nijhoff Publishers, 1996.
  • Bielefeldt, Heiner. ‘Rapporteur’s Digest On Freedom Of Religion Or Belief’. N Human Rights Council, Office of the High Commissioner for Human Rights. Web. 4 Nov. 2014. http://www.ohchr.org/Documents/Issues/Religion/RapporteursDigestFreedomReligionBelief. pd
  • ‘International Religious Freedom Report For 2013’. N.p., 2014. Web. 4 Nov. 2014. http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=222329&year=2013#wra pper
  • Kayaoğlu, Turan. ‘It’s Time To Revise The Cairo Declaration Of Human Rights In Islam’. The
  • Brookings Institution. N.p., 2012. Web. 4 Nov. 2014. http://www.brookings.edu/research/opinions/2012/04/23-cairo-kayaoglu
  • Laws Which Guarantee Religious Freedom’. N.p., 2014. Web. 4 Nov. 2014. http://www.religioustolerance.org/humrtlaw.htm