Part III | Expanded Analysis
Category D | Human Rights
Topic 18 | ICCPR Article 18
Article 18 of the International Covenant on Civil and Political Rights (ICCPR) guarantees individuals the right to freedom of thought, conscience, and religion. As of 2024, 174 countries have ratified the ICCPR, which means these countries have made a solemn, legally binding commitment to protect the right to freedom of thought, conscience, and religion. This includes the right of individuals to adopt a religion or belief of their choice; to practice a religion or belief in public or private, individually or in a community; and to be free from coercion that would limit the freedom to choose a religion or belief.
Introduction
Religious freedom first gained international recognition as a fundamental human right because of its inclusion in the Universal Declaration of Human Rights (UDHR).443 The UDHR is a normative statement that offers guidance to the international community when considering human rights issues; however, the Declaration itself has no legally binding authority.444 Since adopting 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.445 The International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) clarify the scope of the rights enumerated in the UDHR and confer binding obligations on state parties.446
Article 18, paragraph 1, of the ICCPR states, “Everyone shall have the right to freedom of thought, conscience and religion.”447 Included in this right is the ability to adopt, manifest, worship, observe, and practice religious teachings individually and as a member of a group.448 Paragraph 3 defines the scope of that right, stating that the ability 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.”449 Paragraph 2 recognizes the right to be free from coercion in one’s religion or belief.450 Lastly, paragraph 4 articulates a positive duty imposed on member states to respect the right of parents and legal guardians to “ensure the religious and moral education of their children in conformity with their own convictions.”451
The ICCPR currently has 174 state parties, including the United States.452
Compliance mechanisms
The UN Human Rights Committee (HRC) is the governing “treaty body” charged with overseeing the implementation and enforcement of the ICCPR.453 The HRC consists of 18 members— human rights experts chosen by state parties from among their citizens. The Committee’s primary function is to review reports submitted by state parties and offer “concluding observations.” 454 These observations highlight positive human rights developments, detail obligations with which the state has failed to comply, and recommend possible methods of remedying noncompliance.455 Additionally, the Committee reviews complaints submitted by individuals, referred to as “authors,” who claim that a state has violated their individual rights under the Covenant.456 In response to these individual complaints, the Committee publishes “Views” that offer an interpretation of the state’s treaty obligations and adjudicate whether state action violated the claimant’s individual rights.457 These Views resemble a judgment or opinion, and while they are not legally binding, they are generally afforded “great weight[]” by the international community.458
Over the years, the HRC has developed a robust body of “interpretative case law” through its published Views.459 Though the HRC is not specifically bound by precedent,460 it often considers its prior decisions and published Views when addressing new cases. This helps it maintain a level of predictability and internal coherence.461 In addition to its case law, the HRC publishes “General Comments” that synthesize its prior interpretations of ICCPR articles.462 These Comments are also not legally binding, but like HRC Views and past caselaw, they are widely accepted by the international community and generally afforded great weight.463
Freedom of thought, conscience, and religion
The language used in Article 18 embraces a broad spectrum of religious and nonreligious convictions. As explained in HRC’s General Comment 22, paragraph 1, “The right to freedom of thought, conscience and religion . . . is far-reaching and profound; it encompasses freedom of thought on all matters . . . .”464 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 various philosophical and ethical frameworks. The Committee was careful to stress that the rights to freedom of thought and conscience were “protected equally with the freedom of religion and belief.”465 Additionally, these rights cannot be derogated from, even during times of crisis and public emergency.466 This further highlights the fundamental character of these rights.467
Freedom to change one’s religion
In the early drafting stages of Article 18, a disagreement arose between several Islamic and Western states over whether to include expressis verbis the individual right to change one’s religion.468 Critics believed it was unnecessary to place emphasis on the right, arguing that doing so might encourage overzealous religious groups to improperly pressure or coerce others to convert.469 Others argued that failing to include the right expressly would result in undue pressure and social ostracization of individuals who chose to change religions.470 Advocates asserted that the right to religious freedom must be “complete,” and include the right to change one’s religion, otherwise the right was “meaningless.”471 The role of missionary activities and proselytism added another layer of complexity to debates; those who opposed expressly including the right asserted two claims. First, they argued that the right would improperly favor missionary activities.472 Second, they claimed that proselytism may be used as a tool to “propagate anti-religious beliefs” or “[e]ncourage doubts in the minds of believers.”473 The second claim was particularly troublesome to Islamic states that adhered to a strict interpretation of sharia law. Under that interpretation, apostasy or the act of leaving Islam is considered a serious offense.474 Thus, these states argued that preventing apostasy was essential to maintaining social cohesion.
After several proposed revisions and much debate, a compromise was eventually reached. The final draft read, “freedom to have or to adopt a religion or belief of his choice.”475 Since Article 18 was adopted, the HRC has clarified that “it should be construed as covering . . . the right to change one’s beliefs.”476 Admittedly, however, the failure to include the right expressis verbis conveys some doubt about the nature and scope of an individual’s ability to change his or her religion.477
Non-coercion
States that are party to the ICCPR are obligated to abstain from using coercive measures to force individuals to adopt or adhere to a particular religion or belief. In General Comment 22, the HRC explained that the Article bars coercion “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.”478 This obligation encompasses both direct and indirect coercion. In other words, “[p]olicies or practices having the same intention or effect” as the threat of physical force or sanctions are also prohibited under Article 18.479 Protection under the non-coercion principle extends to all individuals, regardless of their personal beliefs, religious or otherwise.480 Additionally, the non-coercion principle is non-derogable, meaning the obligation is absolute and cannot be reduced, except under necessity.481
Freedom to manifest religious belief
Article 18, paragraph 1, of the ICCPR states that “[e]veryone shall have the right to freedom of thought, conscience and religion.”482 Included in this right is the ability to adopt, manifest, worship, observe, and practice religious teachings individually and as a member of a group.483 Paragraph 3 defines the extent of that right, stating that the ability 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.”484
Some religions require adherents to observe various traditions or practices, or participate in rituals, that outwardly signify their inner religious commitments. For instance, some religions may require public worship, the observance of religious holidays, or adherence to a specific dress code. Article 18, paragraph 1, ensures that individuals have the right to participate in these religiously motivated activities and, thereby, exercise their individual autonomy more fully.
Parental rights
Article 18, paragraph 4, acknowledges the significance of parental rights in the upbringing of children. This provision underscores the idea that parents have a fundamental right to guide the religious and moral education of their children in accordance with their own convictions. It emphasizes the autonomy of the family unit and the understanding that parents, as primary caregivers, play a vital role in shaping the moral and religious convictions of their children. In its “1981 Declaration,” the UN General Assembly further explained that parents or legal guardians “have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.”485 This right is generally non-derogable, though the Declaration explains that the right is not absolute: “Practices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development . . . .”486
Critiques and responses
The drafters intended the scope of permissible limitations to be quite narrow, applying only when limiting individual religious freedom was “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”487 Critics posit that the words and phrases in this limiting clause lack definition, create ambiguity, and lend themselves to uneven application, particularly when examined across different cultural and legal backgrounds. They argue that ambiguity within the Article leaves too much room for interpretation, potentially resulting in disparate implementation and outcomes.
This critique, however, ignores the extensive review the HRC engages in while adjudicating and interpreting claims asserted under Article 18. This system of review has resulted in a principled and universal application of the rights articulated therein. As noted by international and comparative law scholar Sarah H. Cleveland, the HRC occupies a unique institutional posture.488 The HRC oversees 173 state parties, each with unique legal, political, and cultural traditions.489 Member states have diverse methods of governing religion-state interactions, which vary from state-sponsored religion to complete separation of church and state. These religion-state interactions naturally inform and shape how member states view their obligations under Article 18. As a result, the Committee does not extend a “wide margin of appreciation” or deference to state parties in interpreting their own obligations under the Article.490 Rather, the Committee independently reviews state action under its caselaw and General Comments, opting for a narrow interpretation of permissible limitations.491 This practice of narrow interpretation has been applied consistently in recent cases492 and demonstrates the HRC’s dedication to ensuring robust and universal protection for religious freedom.
References
443. 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.
444. HELEN KELLER & GEIR ULFSTEIN, UN HUMAN RIGHTS TREATY BODIES: INTRODUCTION 3–4 (2012).
445. 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).
446. Id.
447. International Covenant on Civil and Political Rights, art. 18, para. 1, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR], https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.
448. Id.
449. Id. art. 18, para. 3.
450. Id. art. 18, para. 2.
451. Id. art. 18, para. 4.
452. International Covenant on Civil and Political Rights, UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/pages/viewdetails.aspx?chapter=4&clang=_en&mtdsg_no=iv-4&src=ind (last visited Dec. 2024).
453. Treaty Bodies: Human Rights Committee, UN OHCHR, https://www.ohchr.org/en/treaty-bodies/ccpr (last visited Dec. 2024).
454. Gerald L. Neuman, Giving Meaning and Effect to Human Rights: The Contributions of Human Rights Committee Members, in THE HUMAN RIGHTS COVENANTS AT 50: THEIR PAST PRESENT AND FUTURE 31–47 (Daniel Moeckli et al. eds., 2018).
455. Id.
456. Raluca David, Comparative Study of Three International Human Rights Systems and their Enforcement Mechanisms (Dec. 11, 2009) (unpublished manuscript on file with the Social Science Research Network), http://dx.doi.org/10.2139/ssrn.1566495.
457. KELLER & ULFSTEIN, supra, at 3–4; see also Individual Communications: Human Rights Treaty Bodies, UN OHCHR, https://www.ohchr.org/en/treaty-bodies/individual-communications (last visited Dec. 2024).
458. Neuman, supra, at 33.
459. Id. at 35.
460. Lauren Hartley, You Shall Not Pass: The Roma “Travel Ban,” Racial Profiling in Macedonia, and Remedy Under International Law, 119 PENN STATE LAW REVIEW 583, 604 (2014).
461. Id.
462. Neuman, supra, at 33.
463. Id.
464. Human Rights Committee, CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), U.N. Doc. HRI/GEN/1/Rev.1, at 35, para. 1 (July 30, 1993) [hereinafter General Comment No. 22], https://www.refworld.org/legal/general/hrc/1993/en/13375.
465. Freedom of Thought, Conscience and Religion or Belief, AUSTRALIAN HUMAN RIGHTS COMMISSION, https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-thought-conscience-and-religion-or-belief (last visited Dec. 2024).
466. General Comment No. 22, supra, para. 1.
467. Id.
468. Katarzyna Wazynska-Finck & Francois Finck, The Right to Change One’s Religion According to Article 18 of the ICCPR and the Universality of Human Rights, 9(1) JOURNAL OF ISLAMIC STATE PRACTICES IN INTERNATIONAL LAW 36, 37 (2013).
469. Id. at 41.
470. Id.
471. Id.
472. Id. at 42.
473. Id. at 42 (quoting UK Proposal to the Drafting Committee, 1st session, 1947, doc E/CN.4/21, in MARC BOSSUYT, GUIDE TO THE “TRAVAUX PRÉPARATOIRES” OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 351 (1987)).
474. Id. at 36.
475. ICCPR, supra, art. 18, para. 1, 2.
476. Wazynska-Finck & Finck, supra, at 36.
477. Id. at 43.
478. General Comment No. 22, supra, para. 5.
479. Id.
480. Id.
481. ICCPR, supra, art. 18, para. 3; see also Vik Kanwar, The Concept of Coercion in International Law 12 n.23 (Jindal Global Legal Research Paper No. 12/2011, 2011), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1915215.
482. ICCPR, supra, art. 18, para. 1.
483. Id.
484. Id.
485. G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, at para. 5 (Nov. 25, 1981), https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-all-forms-intolerance-and-discrimination.
486. Id.
487. ICCPR, supra, art. 18, para. 3.
488. Sarah H. Cleveland, Banning the Full-Face Veil: Freedom of Religion and Non- Discrimination in the Human Rights Committee and the European Court of Human Rights, 34 HARVARD HUMAN RIGHTS JOURNAL 217, 217 (2021).
489. Id. at 225.
490. Id.
491. Id. at 226.
492. See Yaker v. France, CCPR/C/123/D/2747/2016, No. 2747/2016, U.N. Human Rights Committee (July 17, 2018) (Views adopted by the Committee under Article 5(4) of the Optional Protocol at its 123d session).