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Religious Freedom Toolkit

Part III | Expanded Analysis

Category D | Human Rights

Topic 17 | UDHR Article 18

The most widely accepted articulation of freedom of religion and belief (FoRB) is found in Article 18 of the Universal Declaration of Human Rights (UDHR), which was adopted unanimously by the General Assembly of the United Nations in December 1948. Article 18 states that “everyone has the right to freedom of thought, conscience, and religion,” including the right to change one’s religion or belief; the right to practice one’s religion or belief in public or private, alone or in community with others; and the right to manifest one’s religion or belief through teaching, practice, worship, and observance. While the UDHR is an important normative statement, it does not itself directly create binding legal obligations on states. Nevertheless, Article 18 is the universal “standard of achievement” and aspirational benchmark that religious freedom efforts ought to be measured against. Additionally, the UDHR and, more particularly, Article 18 have shaped legally binding treaties as well as jus cogens (mandatory, universally accepted norms in international law) and many constitutional and statutory provisions that protect freedom of religion and belief.

Introduction  

Religious freedom first gained recognition and protection as a universal human right because of its inclusion in the Universal Declaration of Human Rights (UDHR).421

The UDHR is a normative statement422 that offers guidance to the international community when considering human rights issues. However, it has no legally binding authority.423 Since the adoption of the UDHR, the UN General Assembly has adopted two covenants—in the form of international treaties—that give legal effect to the rights enumerated in the Declaration.424 These covenants, called the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1976) and the International Covenant on Civil and Political Rights (ICCPR, 1976), clarify the scope of rights enumerated in the UDHR and confer binding obligations on state parties.425

Article 18 of the UDHR states,

"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."426

All 192 UN member states have signed the UDHR, thereby signaling that they accept Article 18 as a human rights standard.

Religious freedom as a positive right  

Article 18 of the UDHR contains both negative and positive law elements. “Negative” rights refer to the idea that states must refrain from certain actions; for example, states must refrain from infringing on individuals’ privacy, property, and other liberties.427 “Positive” rights refer to state obligations to take affirmative measures to promote or ensure that rights are actually realized.428 While many scholars view the bulk of Article 18 as an articulation of negative rights, the Article also contains positive obligations. It expressly limits states from interfering with individuals’ “right to freedom of thought, conscience and religion,” including their right to change religions and to worship alone or with a community.429 However, as noted by Professor Jack Donnelly, “All human rights require both positive action and restraint on the part of the state.”430 In the context of religious freedom, positive obligations may include protecting individuals from religious discrimination, ensuring the right to publicly manifest religion, and actively safeguarding the rights of religious minorities by granting religious exemptions from otherwise generally applicable laws.

Freedom of thought, conscience, and religion: Internal and external manifestations  

At the core of Article 18 is the recognition of freedom of thought, conscience, and religion. By encompassing “freedom of thought” and “freedom of conscience,” the Article goes beyond merely safeguarding institutionalized religion. Rather, it underscores the UN General Assembly’s deliberate emphasis on individual autonomy. As explained in General Comment 22, “The right to freedom of thought, conscience and religion . . . is far-reaching and profound; it encompasses freedom of thought on all matters.”431 This expansive scope enables individuals to explore, evaluate, and make educated decisions when choosing to embrace certain religious, moral, or ethical principles. It creates space for individuals to navigate the contours of their conscience without fear of coercion. Accordingly, the protections offered by Article 18 extend beyond traditional religions, encompassing secular, agnostic, and atheistic beliefs, as well as philosophical and ethical frameworks.

Another nod to Article 18’s focus on individual autonomy is found in the provision that states, “Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief . . . .” This provision explicitly states that an essential element of honoring individual autonomy involves respecting the individual’s right to change or alter their perspective. It reflects an understanding that individuals’ beliefs and religious identities are dynamic and evolving. Accordingly, people must be free to explore, reevaluate, and ultimately make personal decisions regarding their religious affiliations. Protecting the ability to change religions also safeguards against coercion and social pressure.

In addition to affording broad protection for an individual’s inner convictions, Article 18 also provides measures that enable individuals to outwardly manifest their personal beliefs. Some religions require adherents to observe various traditions, practices, or participate in rituals that demonstrate their religious commitment. For instance, some religions may require public worship, the observance of religious holidays, or adherence to a specific dress code. Article 18 ensures that individuals have the right to participate in these religiously motivated activities without coercive limitations imposed by the state or other individuals. By protecting the outward manifestation of beliefs, the Article allows individuals to exercise their individual autonomy more fully.

Universality: Freedom of religion or belief for all  

Article 18 articulates the right to freedom of thought, conscience, and religion for all—regardless of “nationality, sex, national or ethnic origin, color, religion, language, or any other status.”432 It extends protection to everyone, mitigating potential sources of discrimination and prejudice that individuals might face in the exercise of their right to freedom of thought, conscience, and religion. The Article serves as a powerful statement against any form of discrimination and reinforces the idea that human rights are inherent to all individuals.

Critiques and responses

Vagueness and misinterpretation. Critics assert that the UDHR was intentionally drafted in vague language.433 They argue that this open-ended construction could lend itself to misinterpretation at the expense of competing human rights interests. While this critique has some merit, it rests on a misguided oversimplification that fails to account for the narrowing and clarifying constructions found in accompanying covenants and UN Human Rights Committee (HRC) interpretations. The UN General Assembly drafted the UDHR to appeal to as many prospective signatories as possible, to garner the supported needed for adoption. However, accompanying covenants, optional protocols, general comments, and adjudicative interpretations rendered by the HRC all strengthen the UDHR’s specificity and ensure a principled application.

Western imperialism. Other critics argue that the rights expressed in Article 18 are influenced primarily by Western norms, mores, and values.434 Though the rights enshrined in Article 18 are said to have universal application, critics assert that their Western origin advance uniquely Western interests and could be used as “a weapon of cultural hegemony or a new form of imperialism.”435 Additionally, some contend that the UDHR drafters had a shared commitment to Judeo-Christian morality. They posit that, as a result, the Declaration is ill-tailored to fit societies that are religiously pluralistic.

These claims, however, fall flat. In 1948, 58 countries assembled to draft the UDHR with the common goal of creating a framework that universally protected human dignity.436 These countries represented a diverse range of cultures including African, Asian, Latin American, and Middle Eastern states.437 Additionally, “[t]hirty-seven states were associated with Judeo- Christian traditions; [eleven] Islamic; six Marxist; and four identified as being associated with Buddhist-Confucian traditions.”438 Since the adoption of the UDHR, subsequent human rights developments, including regional conventions and international treaties, have expanded and refined the understanding of religious freedom to further encompass the diverse religious and cultural landscape of the global community. The international expression of rights in the UDHR, does not “reflect any clear philosophical assumptions[,]” nor does it “articulate . . . any single, comprehensive theory of the relation of the individual to society.”439

Even conceding potential drafting biases, it is crucial to appreciate that Article 18 offers a valuable starting point for continuing human rights discussions. The value of articulating a universal framework that guarantees universal protection for fundamental rights outweighs minor concerns of drafting biases, providing a foundational framework that invites ongoing dialogue and refinement.

Lack of enforcement. The UDHR is a normative declaration without binding legal authority. Though Article 18 is an aspirational benchmark,440 many critics argue that the Declaration does little to ensure legitimate protection for religious freedom.

While the UDHR is not legally binding, it does carry moral force and the force of customary international law (international obligations based on established practices). It is also considered to constitute jus cogens—that is, nonderogable universally accepted norms in international law. In addition, the Declaration has served as the inspiration and foundation of legally binding international treaties, including the ICCPR, which contains its own Article 18 protecting the right to freedom of thought, conscience, and religion. The ICCPR, in turn, creates “treaty bodies”— enforcement mechanisms like the Human Rights Committee, which administers the reporting system of state compliance with the ICCPR’s Article 18. The influence of Article 18 extends to regional and national levels as well. Its wording has been adopted or adapted in major regional human rights instruments441 and in state constitutions and legislative documents with the force of law.

Thus, while the Declaration technically lacks “legal teeth,” it has been highly influential in setting international and regional norms that have the effect of law, facilitating the creation and acceptance of legally binding treaties with enforcement power, and inspiring national constitutional and legislative provisions that are legally binding on citizens.

Conclusion  

The value of Article 18 of the UDHR in articulating the universal right to thought, conscience, and religion cannot be overstated. In the words of Professor Malcolm Evans, “Article 18 of the Universal Declaration of Human Rights (UDHR) remains the single most significant statement of the international community’s commitment to freedom of religion or belief. . . . [and] the benchmark against which the enjoyment of freedom of religion or belief is to be measured . . . .”442

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References

421. Daniel Philpott, Religious Freedom in International Human Rights Law, THE HERITAGE FOUNDATION (Sept. 1, 2020), https://heritage.org/religious-liberty/report/religious-freedom-international-human-rights-law.

422. A statement establishing a standard or “norm.”

423. HELEN KELLER & GEIR ULFSTEIN, UN HUMAN RIGHTS TREATY BODIES: INTRODUCTION 3–4 (2012).

424. Manisuli Ssenyonjo, Reflections on State Obligations with Respect to Economic, Social, and Cultural Rights in International Human Rights Law, 15 INTERNATIONAL JOURNAL OF HUMAN RIGHTS 969, 969–70 (2011).

425. Id.

426. Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR].

427. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY OR PRACTICE 10 (1989).

428. Id. at 31–37.

429. UDHR, supra.

430. DONNELLY, supra.

431. The Human Rights Committee issued General Comment 22 to clarify and interpret the scope of the right to freedom of thought, conscience, and religion, as articulated in Article 18 of the ICCPR. Human Rights Committee, General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18), CCPR/C/21/Rev.1/Add.4, para. 1 (July 30, 1993).

432. What Are Human Rights?, UN OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, https://www.ohchr.org/en/what-are-human-rights (last visited Dec. 2024).

433. See 5 YEARBOOK OF THE UNITED NATIONS 1948–1949, at 528–29, 533 (1950) (recording Czechoslovakian, Soviet, and Byelorussian delegates’ criticisms of the UDHR draft as being “abstract” and “illusory”), https://www.ohchr.org/sites/default/files/Documents/Issues/Education/UNYearbook.pdf.

434. Ahmed Shaheed & Rose Parris Richter, Is “Human Rights” a Western Concept?, IPI GLOBAL OBSERVATORY (Oct. 17, 2018), https://theglobalobservatory.org/2018/10/are-human-rights-a-western-concept.

435. Id.

436. Id.

437. Id.

438. Id.

439. Id.

440. Malcolm Evans, Introductory Overview, in ARTICLE 18: AN ORPHANED RIGHT, ALL PARTY PARLIAMENTARY GROUP ON INTERNATIONAL RELIGIOUS FREEDOM 8, 8 (2013), https://appgfreedomofreligionorbelief.org/media/Article-18-An-Orphaned-Right.pdf.

441. These include the European Convention on Human Rights (Article 9), the American Convention on Human Rights (Article 12), the African Charter on Human and Peoples' Rights (Article 8), the Arab Charter on Human Rights (Article 30), and the ASEAN Human Rights Declaration (Article 22). Javaid Rehman, What Is Article 18 and What Is It Not?, in ARTICLE 18: AN ORPHANED RIGHT, ALL PARTY PARLIAMENTARY GROUP ON INTERNATIONAL RELIGIOUS FREEDOM 10, 11 (2013), https://appgfreedomofreligionorbelief.org/media/Article-18-An-Orphaned-Right.pdf.

442. Evans, supra.