Good morning to you all. I am delighted to be here amongst such a big gathering
of fellow human rights defenders, and thank you very much for inviting me to
speak at this important conference. I've been asked to give an introduction,
an overview, of the right to freedom of religion or belief or religious freedom
as, I said. But before I do that, let me just take a moment to tell you about the
work I do as the UN Rapporteur. As a UN Rapporteur my task is to monitor the
implementation by states of what is called the 1981 UN declaration on the
elimination of all forms of intolerance and of discrimination based on religion
or belief. And this declaration is the most detailed account internationally, in
the UN system, of what is and what isn't entailed by the right to freedom of the
general belief in terms of what rights States ought to respect, protect, and
promote. And the way I do my monitoring is to produce two thematic studies a
year, looking at different aspects of this right, to undertake two country
missions of a fortnight duration each, to two countries who would let me in each
year, to write as many advocacy letters as I have time to do so, on behalf of
victims who have their rights violated, or are about to have their rights
violated, and to engage in as many activities, as this one, where my
time will allow me to do so, to promote understanding about the right and to
network people working in this area. So that is what I do as UN Rapporteur.
Now, having said that, let me start my remarks today by talking a little bit
about the international legal base for this right, I call it the right to thought,
to make my life easier, freedom of the general belief, because I do not think
the term 'religious freedom' adequately conveys the meaning of the right of
freedom of thought, conscience, religion or belief, and also and also of course
there are groups, I think especially in the U.S, across
the pond, who use the term 'religious freedom' to be synonymous with claims to
religious privilege, to play an exceptions from laws protecting against
discrimination. So I just want to insist that I use this phrase and that people
be mindful that we talk about a very broad right. It's also
important because if you look at the way the right is enshrined in international law,
the Universal Declaration Of Human Rights Article 18, and the Article 18 of
the International Covenant on Civil and Political Rights, the failure to include
the terms 'thought' and 'belief' has important implications for those who
want to have the right protected, and also for those who claim the right to be
synonymous with religious freedom, claiming that this right protects,
primarily, religious people, rather than all human beings. So I think it's
extremely important, both in its descriptive and prescriptive capacity, to use the
wider term 'freedom of religion or belief', also, the belief aspect of this
right is extremely important for those who don't profess a religion, for humanists,
free thinkers, rationalists, atheists or agnostics. But I'll get to this broader
element in a moment. So the legal framework, and to quote Ambassador
Charles Malik of Lebanon, who was one of the pen holders of the
Universal Declaration, "the human person's most sacred and inviolable possessions
are his mind and his conscience, enabling him to perceive the truth,
to choose freely and to exist". According to ambassador Charles Malik if
the protection of human dignity was not to remain a dead letter, that this was
one of the core principles that had to lead the work of the
committee, entrusted to draft the Declaration. What Malik was referring to
is today known as the forum internum of freedom of religion and
belief, who's inviolibility is well established in international law, and
represents the absolute component of the right to religion and belief, as in
Article 18 of the Covenant. In other
words, there can be no interference, under any circumstance, by the state, or anybody
else, in our forum internum, in what we hold in our minds to be our ultimate
beliefs and thoughts. The right, therefore, includes the right to have or adopt a
religion or belief of one's choice, as observed by the UN Human Rights
Committee in general comment 22. This entails both the freedom to choose any
religion or belief as the one to replace one's current convictions. Just as
freedom of thought, conscience, and religion or belief, protects the right of
the individual to follow a religion, it also protects the right to reject a
religion of belief, to identify as humanist or non-religious, and to
manifest non-religious convictions through expression, teaching and practice.
Whilst this fundamental right includes the right not to reveal your beliefs,or
this identification, and right not to take part in any ceremonies it also
includes the freedom to argue for those beliefs in public, and to seek, persuade,
others to the merits of a beliefs, or the flaws of theirs through debate,
discussion and criticism. Interestingly the freedom to convert revealed to be
the most controversial aspect of the right, there are negotiations of the
Covenant, and some states still today have in place apostasy laws and
criminalized conversion from the country's official religion to any other
belief system. Apostasy laws, therefore, constitute a clear violation of the
forum internum, which enjoys unqualified protection even in times of public
emergency. Freedom from coerced conversion is an element
of the protection entitled the freedom of holding a belief freely chosen. For
acts of the state under this provision include penal sanctions,
threats of physical force, policies that aim at compelling or facilitating an
individual to adhere to a specific system of belief or recant their own.
States also bear the responsibility to protect individuals under
the jurisdiction from similar interference by third parties, be they
family members or members of society. Let me now turn a bit about limitations of
this right and the accommodation that may be called for in regard to this right.
Whereas the freedom to hold a belief of
one's choice is an absolute right, the freedom to manifest that belief,
either individually or in community with others, is a qualified one. Limitations
can be adopted when they are prescribed by law and are necessary to protect public
safety, public order, public health, public morals, or the rights and freedoms of others.
Now, the limitations are a very tricky
business, it's an important area and I know the NSS are very keenly committed
to working in this area. It's a very important area. Last year I wrote a whole
report on the links between religion and state, and part of that looked at times
when the right to equality and non-discrimination comes against claims
to religious freedom. In other words how do we negotiate a space between the
rights of everybody and the rights that some religious orders claim. In short
these limitations have a high threshold and must be very narrowly constructed.
They must be very clear in terms of when a person may actually trigger that
border. The forms of manifestation protected are those linked to worship,
observance, teaching, and practice, and a more detailed list, of course, of these
rights are found in the 1981 declaration, as I mentioned. These are the declaration,
entail, for instance, observance of religious holidays, of dietary rules, the wearing of
the symbols, and acts integral to the to the conduct of religious groups, such as the
freedom to elect religious leaders, priests and teachers, to establish place
of worship, and others. So a detailed listing of these rights are found in
article 6 of this declaration. I think it's useful to look at what are
the permissible limitations and exceptions to these rights.
I would argue that institutions that open their doors to the public to provide
services whether for lodging, catering or health care, should not be able to claim
a religious exemption to rules furthering public
health. Any contrary rule would permit the institution to impose its faith, or
the leaders of the institution's, their faith, upon others with resulting harm
to health. equality and dignity. And I shall insist on this principle every
time I speak about the accommodation that has to be offered on account of
religion. Institutions that provide goods or services to the public,
of course, differ from churches, synagogues, mosques, temples and other houses
of worship, in those institutions the rules of the faith are typically being
imposed only on those who have chosen to accept, or at least explore, the faith
voluntarily. By contrast, government officials such as clerks,
charged with issuing marriage licenses, should not be afforded an exemption from
laws advancing equality. And this is true even if the objector can be accommodated,
in such that the person or couple can be served without being aware of the
objection. Any accommodation of a government official, even behind the
counter, puts the imprimatur of the government on the discrimination, and
it should be disallowed. Of course, outside the government
context individuals should be accommodated, where doing so does not
result in harm. Consistent with this, principle expressions of faith
manifested in appearance should be accommodated, absent a showing of harm to
others, and a showing we think very hard to really sustain.
I know educationis an area in which the NSS are quite active, and again I would
argue that article 18, while it provides for the rights of parents, or legal
guardians, to raise their children or ward in education of their choice, there are
strict limitations or how far this right will extend.
This right has to be balanced with the child's own right to freedom of thought, in a
manner consistent with the child's evolving capacities. This principle is
crucial, since it acknowledges that at a certain age, the child shall be free to
make their personal choices in matters of thought, religion or belief. There's a
debate going on, there's some activity going on in the UK, about how far parents
can influence the education of a child. I want to note that the child
must also be directed to certain principles, among which, in international law,
there is the preparation of the child for a responsible life in a free society
in the spirit of understanding, peace, tolerance, equality of sexes, and
friendship amongst all people's, ethnic, national and religious groups, and
persons of indigenous origin. That's article 29 D of the Childhood
Convention, also found, similarly, in the 81 declaration as a limit on how far
parents can claim their right to raise children or educate children in their
beliefs. We will also talk about common misunderstandings and some features of
the core features. In my work I find that misconceptions, either willful
or not so willful, are plenty, and let me just highlight some of the key ones I
come across. The first, of course, is to assert that this right protects
individuals, not ideas, beliefs or religions. And I can't say it enough,
because, very often, it is about people trying to protect an idea. This right
includes an extremely broad set of beliefs, including traditional and
non-traditional religious beliefs, non religious beliefs, and new beliefs. So it
is anything, essentially, the right to hold that in our minds. It includes a
very strict interpretation of limitations. They must always be the
exception, and must be narrowly construed, and should never destroy any part of
that itself it certainly does not give a license to discriminate, that's not what
the right is about, there is an inbuilt claim to equality in the right.
It also includes the freedom not to manifest, a belief and certainly freedom
from religion. Now, last March, the UN Human Rights Council, in the
interactive dialogue I had with with member states and other observers'
organizations, a delegation, it was an open meeting, so it was a Vatican delegate,
disputed that Freedom From Religion is covered by international law and here is
what he said: “Of the utmost concern, the use of the term freedom from religion,
which is not contemplated in the international instruments, reveals a
patronising idea of religion, going beyond the mandate of the Special Rapporteur.”
I, of course, had to respond to this by saying in fact there
can be no meaningful right of freedom of religion unless there was a
right to freedom from religion as well. And, another subject of importance to the
NSS, the name is the clue "Desecularization". In the Western political debate we see
an increased number of questions concerning the space that you
occupy in society. According to some scholars, this is a consequence of
migration movements, or rather to the arrival in Western societies of people
whose religious beliefs have not gone through a historical process of secularization
in the countries of origin . Yet, if you look at many countries, UK for instance,
some have observed that the majority of legal cases requesting exemptions from laws of
general applicability are being advanced not by minority or migrant groups, but by
established religious traditions. Protecting freedom offers in a belief in
context, in which the principles of state neutrality, and separate religion and
state, under threat, is remarkably challenging. Indeed, even though
international law does not prescribe a specific form of relationship between
state and religion, the analysis of worldwide restrictions of freedom of
religion or belief has shown that states that identify with the religion or
states that have a negative view of religion, are more proprensed to violate that
fight. If you look at my communications database, the bulk, the majority of the
communications are given to states which have an official religion
or attachment to religion, and the least amount of communications go to states
where there is respect for human rights while observing
secular traditions. Of course, secularism itself comes in many forms, some of which
are more likely to respect formal freedoms and accord little concern, while
others are not. I'm dealing with, on one hand China, where there is a serious
concern, but I also look at secular societies, where there is respect for
human rights, where there is a lot more space for equal concern an equal
respect. Therefore, I argue that the model of relationship that is best in line
with right to freedom, of the no belief, is the one that is in harmony with the
concept of respectful distancing, and which acts on deep grounding of
secularity based on human rights. International law does not say a state
should be secular, but it's obvious that, unless there's a distance between state and
religion, there is no space to respect human rights. But, having that space
also means that state should not view religion or his people with hostility, as
some states do. So, to conclude, overall, in reclaiming this freedom, keep mindful of
what the UDHR says in its preamble, that the foundation of peace, freedom and
justice in the world, is a recognition of the inherent dignity and the equal and
inalienable rights of all members of the human family. And to recall the very
first article of UDHR, drafted by Dr. Charles Malik, I'm putting it in modern
language here, all humans are born free and equal in dignity and rights, they are
endowed with reason and conscience, and must act towards each other in spirit of
fraternity. So the task ahead of us is as difficult or as simple, as the assertion
the constant affirmation of being free and equal. Thank you.
[Appaluse]