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Religious Freedom Toolkit

Part III | Expanded Analysis

Category D | Human Rights

Topic 20 | Human rights and FoRB

The right to freedom of religion or belief (FoRB) is a fundamental human right, recognized in nearly every human rights instrument and in most constitutions adopted since the end of World War II, which marked the beginning of the human rights era. Most international instruments articulate the right as “freedom of thought, conscience and religion” or “thought, conscience, religion or belief,” but the acronym FoRB serves as a kind of universal shorthand for all such expressions.516

History of human rights and FoRB  

A human right is a freedom, respect, or entitlement that belongs to all human beings and is protected by law. Freedom of religion or belief is the oldest human right.

The seeds of international religious freedom were sown as early as the 1500s.517 In Germany, Martin Luther led a group of followers in breaking away from the Catholic Church, which gave rise to Protestantism. As Protestantism grew, relations between Catholics and Protestants deteriorated, resulting in a century of religious wars that took a terrible toll. Ultimately, the warring states entered treaties that permitted each state to choose its own religion. These treaties also permitted people who belonged to certain minority religions to practice their religion in private. Treaty provisions did not fully protect the religious freedom of minorities, however, because most religions are not practiced only in private. Eventually, European countries began allowing people of minority religions to build churches and practice their religion in public, but progress was limited. Some minority religions were recognized and others were not.

Broad recognition of the need for religious freedom did not come until after World War II. The Holocaust, in which more than six million Jews were killed because of their ethnicity and religion, demonstrated the need for religious freedom and other human rights as never before. Responding to the horrors of the Holocaust, the international community came together to create global organizations and to proclaim a universal set of human rights, including the right to freedom of religion or belief.

The United Nations (UN) is the main international organization created in the aftermath of, and in response to, World War II and the Holocaust. The UN was created by the UN Charter, a treaty that states the United Nations should “achieve international co-operation . . . in promoting and encouraging respect for human rights . . . for all.”518

Foundational documents of FoRB

Shortly after its creation, the United Nations adopted the Universal Declaration of Human Rights (UDHR),519 in 1948. The UDHR was the first international document to proclaim a universal set of human rights. It is the foundation of internationally recognized human rights today. The Universal Declaration recognizes freedom of religion or belief as one of the fundamental human rights that all individuals possess.

Following the adoption of the Universal Declaration, UN Member States created treaties that made human rights obligations legally binding on states that accepted or “ratified” the treaties. The International Covenant on Civil and Political Rights (ICCPR),520 a treaty that became effective in 1976, guarantees the right to freedom of religion or belief. Five years later, the United Nations adopted the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (referred to as the “1981 Declaration”).521 While not a legally binding treaty, the 1981 Declaration fleshes out the types of actions or “manifestations” that are protected by the right to freedom of religion or belief. These documents—the UDHR, the ICCPR, and the 1981 Declaration—are the three main international documents that define the fundamental human right to freedom of religion or belief.

FoRB protections: UDHR  

Each of the foundational documents helps us understand the content and scope of the right to freedom of religion or belief.

Article 18 of the Universal Declaration of Human Rights (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."522

Parsing the words and phrases of Article 18 lends insight into the breadth, depth, and width of its protections.

  • Everyone. Everyone means that every individual—no matter their country, race, citizenship status, or other characteristic—is entitled to the right to freedom of religion or belief.
  • Has. Freedom of religion or belief is not a gift from a government. It is something that everyone has and that governments must respect.
  • Right. Freedom of religion or belief is not just an interest or a hope. It is a right.
  • Thought, conscience and religion. The right to freedom of religion or belief extends to thought, conscience and religion. This means that individuals are free to choose religious and/or non-religious beliefs. The beliefs of a devout Christian and an atheist— and of all others—are protected alike by the right.
  • In community with others. Freedom of religion or belief is not just an individual right. It includes the right to practice religion in association or community with others.
  • To manifest his religion . . . in practice, worship and observance. The right to freedom of religion or belief includes not just the right to believe but to act on one’s beliefs in practice, worship and observance.
  • In public or private. The right to freedom of religion or belief includes the right to manifest one’s beliefs in public as well as in private.

FoRB protections: ICCPR  

The International Covenant on Civil and Political Rights built on principles contained in the Universal Declaration of Human Rights. As a treaty, the ICCPR made freedom of religion or belief a legally binding obligation on all states that ratify the Covenant. To date, the ICCPR has been ratified by 174 states, all of which are legally bound to comply with the ICCPR, including the obligation to recognize and protect the right to FoRB.523

Article 18 of the ICCPR adopts almost word for word the language of the UDHR in defining the right to freedom of religion and belief:

"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."524

Article 18 of the ICCPR further emphasize that individuals have the right to choose their religion or belief without coercion (18.2) and recognizes that parents have the freedom to determine their children’s religious education (18.4).

FoRB protections: 1981 Declaration  

The UDHR and the ICCPR both protect the human right to freedom of religion or belief, but both documents are written in broad language. To clarify the various contexts in which the right applies, the United Nations adopted in 1981 the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.

The 1981 Declaration is not a binding treaty, but it specifies religiously or belief-motivated manifestations that are covered by the right to FoRB, through an illustrative list that includes the following acts:

  • “To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;”
  • “To establish and maintain . . . charitable or humanitarian institutions;”
  • “To make, acquire and use . . . the necessary articles and materials related to the rites or customs of a religion or belief;”
  • “To write, issue and disseminate relevant publications . . . ;”
  • “To teach a religion or belief [in suitable places];”
  • “To solicit and receive voluntary financial and other contributions from individuals and institutions;”
  • “To train, appoint, elect or designate by succession appropriate leaders . . . ;”
  • “To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief[;]” and
  • To direct the religious or moral education of one’s children.525

Limitations on FoRB

Freedom of religion or belief is a core human right, but it is not unlimited. The right is sometimes divided in two parts: internal (forum internum) and external (forum externum). The forum internum—the freedom to choose one’s internal beliefs—is absolute and cannot be restricted by law. The forum externum—the freedom to manifest, or act on, one’s beliefs—can be restricted by law in certain specified circumstances.

Legitimate restrictions on FoRB are strictly limited. The ICCPR and 1981 Declaration state that restrictions on freedom of religion or belief are only permitted if they meet three requirements.

A restriction must

  1. be enacted by law and not just arbitrarily determined and
  2. be necessary and proportionate
  3. to “protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”526

FoRB protections: National constitutions  

In the aftermath of World War II, decolonization and the development of international human rights law prompted the drafting and revision of national constitutions around the world. Another wave of constitutional creation and reform followed the dissolution of the Soviet Union, in the 1990s. Though constitutional human rights protections vary from nation to nation, approximately 97% of national constitutions today contain FoRB-related provisions.527 Thus, in most nations FoRB is protected, at least on paper, as both a domestic constitutional right and an international human right.

Most constitutions fall into one of three categories relative to FoRB protections. The first are constitutions that establish a state religion but recognize peoples’ right to practice what they believe regardless.528 The second are those that protect freedom of religion only insofar as its protection does not endanger public welfare or safety; such constitutions explicitly enumerate these commonly understood limitations on FoRB—limitations that are usually recognized by common law in other nations.529 The third category is the most protective; it includes constitutions that both protect religious practice and prevent religious establishment.530

Monitoring institutions  

States have created various international institutions to monitor compliance with human rights, including the right to FoRB. Some of these institutions are part of, or are supported by, the United Nations. Others are regional and focus on compliance with regional human rights guarantees by the countries in a particular region. These institutions examine state compliance with international law obligations but may also examine a state’s compliance with its own domestic, constitutional standards.

  • United Nations monitoring institutions

The United Nations Human Rights Council531 (UNHRC) is made up of 47 states elected to sit on the Council for a time. The UNHRC conducts what is called the Universal Periodic Review (UPR). Through the UPR, the Council reviews the human rights records of all UN Member States on a rotating basis. During the review process, the Council may identify violations of the right to freedom of religion or belief and recommend ways the state under review can better uphold the right. The Council has also established the “mandate” or office of the Special Rapporteur on freedom of religion or belief, an independent expert who serves for a three-year renewable term. The Special Rapporteur releases regular reports on countries or topical issues to promote FoRB worldwide.532

The United Nations Human Rights Committee533 is a “"treaty body”—that is, a body created by a human rights treaty to oversee compliance with that particular treaty. The Human Rights Committee is created by the International Covenant on Civil and Political Rights (ICCPR), which (as explained above) guarantees the right to freedom of religion or belief.

The Committee consists of 18 independent experts who review reports from states on their compliance with the ICCPR. Like the Council, the Committee recommends ways states can better comply with their human rights obligations. In addition to reviewing state reports and making recommendations, the Committee issues “General Comments” interpreting human rights guarantees, which are often only broadly defined in the ICCPR. The Committee’s General Comment No. 22, for example, clarifies the meaning of broad terms in Article 18 and describes the right to FoRB as “fundamental,” “far-reaching and profound.”534 Finally, the Committee issues “Views” addressing complaints from individuals who claim that their human rights under the ICCPR have been violated.535 In various cases, the Committee has found that states have violated Article 18, such as where individuals were inappropriately restricted from sharing their religious beliefs with others.

  • Regional treaties and monitoring institutions

Just as international treaties and institutions protect international human rights guarantees, regional treaties and institutions protect regional human rights guarantees.

Like the ICCPR, regional human rights treaties guarantee the right to FoRB. The African Charter on Human and Peoples’ Rights states that “[f]reedom of conscience, the profession and free practice of religion shall be guaranteed.”536 The American Convention on Human Rights declares that “[e]veryone has the right to freedom of conscience and of religion.”537 Using similar language, the European Convention on Human Rights states that “[e]veryone has the right to freedom of thought, conscience and religion.”538 The ASEAN Human Rights Declaration of the Association of Southeast Asian Nations, though not a treaty, affirms that “[e]very person has the right to freedom of thought, conscience and religion.”539

Regional institutions aim to uphold these human rights guarantees. Africa and the Americas each has a commission and a court that promote and enforce human rights.540 The most influential regional human rights institution has been the European Court of Human Rights,541 which interprets and enforces the guarantees in the European Convention on Human Rights.

Criticisms of FoRB  

Though the right to freedom of religion or belief enjoys widespread protection through constitutional/domestic and international law, it is not universally embraced. Some people maintain FoRB and other human rights have been politicized and weaponized, particularly by the West. For such people, human rights can feel like an imposition of Western values on others by powerful nations. Ironically, in Western countries FoRB is evolving to become what has been termed “freedom from religion.”542 Some have criticized the right to FoRB as antagonistic with other rights, such as LGBTQ rights or the right to freedom of expression.543 In many European countries, religion has come to be associated with negative social phenomena such as bigotry, community pressure, or violence; this leads many in these societies to advocate for religion be kept out of the public sphere entirely.544 The universal nature and nondiscriminatory implementation of FoRB has been undermined by these and other criticisms.545

Responses: Binding commitments, FoRB as a universal value  

In addressing criticisms of human rights, including the right to FoRB, it may be constructive and instructive to discuss one or more of the following points.

First, it is important to emphasize that countries have undertaken important legal commitments—in the form of both domestic, constitutional provisions and legally binding international treaties. Under the rule of law, countries have an obligation to uphold their constitution’s provisions, which comprise the highest laws of the land. Moreover, when a country becomes a party to an international human rights treaty, it has both positive and negative obligations to support rights listed in that treaty.546 It is obligated to protect individuals and groups from human rights abuses, and it is also obligated to refrain from interfering with the enjoyment of enumerated rights.547 It is, therefore, hard to argue that human rights generally, and the right to FoRB specifically, are an imposition when countries themselves have voluntarily undertaken to make these commitments.

Second, when asked which of the human rights enumerated in the UDHR is unimportant, most critics will be unable to name one.

Third, the idea that human rights are a Western construct overlooks the significant contributions to the human rights landscape of individuals from various hemispheres and cultural, political, and religious/belief backgrounds. For example, key contributors to the UDHR and Article 18 included P.C. Chang, a Confucian philosopher and advocate of an Eastern perspective, and Sir Zafrulla Khan, who argued persuasively for Muslim support of Article 18 based on Qur’anic principles.548

Fourth, criticisms of FoRB as a non-universal value do not consider the value of FoRB in and of itself. Though FoRB as an internationally recognized human right first gained widespread traction in the aftermath of World War II, and many early proponents came from Western countries, these origins do not diminish its importance. Removed from this context, FoRB would still be desirable because the right itself has value.

Fifth, ironically, a large percentage of the criticism of human rights (and FoRB specifically) come from Western countries—that is, Western European and U.S. voices. But many human rights are more stringently protected in these societies than in other places in the world. Many criticisms also come from people in positions of power or privilege, such as government bureaucrats or tenured professors. The fact that these criticisms originate from a privileged place or person demonstrates that it is easier to critique a right when and where that right is not being violated.

Sixth, complaints about the effects of FoRB—for example, the potential for bigotry and violence—are actually critiques of how the right is used, not the right itself.549 These effects are serious and merit consideration, but it is important to distinguish between the fault of the minority exercising the right, as opposed to the right itself.550

Seventh, FoRB has, at its heart, the concept that people must be free to choose in matters of conscience, faith, and belief.551 It establishes safeguards against coercion and contributes to more sincerity and authenticity in religious belief.552 Protecting the freedom to choose is an underlying theme in many other, less-controversial human rights, and it is thus a perfectly appropriate concept to institutionalize.553 In fact, protecting rights to choose can help prevent the violence and bigotry that FoRB is accused of engendering.554

Conclusion  

The right to freedom of religion or belief is perhaps the most fundamental of all human rights— protecting our moral agency to believe and think as we choose, and to act on our beliefs within the rule of law. Given its importance, states should be encouraged to live up to their self- imposed constitutional and treaty obligations to protect this universal value and fundamental right for all citizens.

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References

516. Toolkit Topic 20 (Human rights and FoRB) was drafted with contributions by Taylor Jeanfreau (2023 ICLRS Summer Fellow) and Matt Brown (JD, BYU Law Class of 2023).

517. See W. COLE DURHAM JR. & BRETT G. SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES 80–81 (2d ed. 2019).

518. U.N. Charter (June 26, 1945), https://www.un.org/en/about-us/un-charter/full-text.

519. G.A. Res. 217 A (III), Universal Declaration of Human Rights (Dec. 10, 1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights.

520. G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 3 [hereinafter ICCPR], https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.

521. G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Nov. 25, 1981) [hereinafter 1981 Declaration], https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-all-forms-intolerance-and-discrimination.

522. UDHR, supra, art. 18.

523. See 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) (listing signatories and parties to the ICCPR).

524. ICCPR, supra, art. 18.

525. 1981 Declaration, supra, art. 5, 6.

526. ICCPR, supra, art. 18.3; 1981 Declaration, supra, art. 1.3. For more information on limitations on FoRB, see Toolkit Topic 31 (Understanding limitations).

527. David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 NEW YORK UNIVERSITY LAW REVIEW 762, 773 (2012).

528. E.g., CONSTITUTION OF AFGHANISTAN art. 2 (2004). Though it is worth noting that this constitution states that the government will “eliminat[e] . . . related traditions contrary to the principles of the sacred religion of Islam” (art. 54). Still, the constitution recognizes the existence of “[f]ollowers of other faiths” and states they “shall be free within the bounds of law in the exercise and performance of their religious rituals” (art. 2, emphasis added); CONSTITUTION OF THE KINGDOM OF THAILAND ch. III, § 31 (2017).

529. E.g., CONSTITUTION OF KIRIBATI ch. II, § 11 (1995); CONSTITUTION OF THE REPUBLIC OF FIJI ch. 2, § 22(7) (2013).

530. E.g., U.S. CONSTITUTION amend. I.

531. United National Human Rights Council, UN OHCHR, https://www.ohchr.org/en/hrbodies/hrc/home (last visited Dec. 2024).

532. Special Rapporteur on Freedom of Religion or Belief, UN OHCHR, https://www.ohchr.org/en/special-procedures/sr-religion-or-belief (last visited Dec. 2024).

533. Treaty Bodies: Human Rights Committee, UN OHCHR, https://www.ohchr.org/en/treaty-bodies/ccpr (last visited Dec. 2024).

534. 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), https://www.refworld.org/legal/general/hrc/1993/en/13375.

535. See Individual Communications: Human Rights Treaty Bodies, UN OHCHR, https://www.ohchr.org/en/treaty-bodies/individual-communications (last visited Dec. 2024).

536. African Charter on Human and Peoples’ Rights, at art. 8 (June 27, 1981), https://www.oas.org/en/sla/dil/docs/African_Charter_Human_Peoples_Rights.pdf.

537. American Convention on Human Rights (Pact of San José, Costa Rica), at art. 12 (Nov. 22, 1969), https://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm.

538. European Convention for the Protection of Human Rights and Fundamental Freedoms, at art. 9 (Nov. 4, 1950), https://www.echr.coe.int/documents/d/echr/convention_ENG.

539. ASEAN Human Rights Declaration, at princ. 22 (Nov. 18, 2012), https://asean.org/asean-human-rights-declaration.

540. African Commission on Human and Peoples’ Rights, AFRICAN UNION, https://achpr.au.int/en (last visited Dec. 2024); AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS, https://www.african-court.org/wpafc (last visited Dec. 2024); Inter-American Commission on Human Rights, OAS, https://www.oas.org/en/iachr/Default.asp (last visited Dec. 2024); INTER-AMERICAN COURT OF HUMAN RIGHTS, https://www.corteidh.or.cr/index.cfm?lang=en (last visited Dec. 2024).

541. European Court of Human Rights, COUNCIL OF EUROPE, https://www.echr.coe.int (last visited Dec. 2024).

542. See Gerald Kirven, Freedom of Religion or Freedom from Religion? 48 AMERICAN BAR ASSOCIATION JOURNAL 816, 816 (1962); Baroness Hale of Richmond, Freedom of Religion and Freedom from Religion, 19 ECCLESIASTICAL LAW JOURNAL 3, 12 (2017).

543. Heiner Bielefeldt, Misperceptions of Freedom of Religion or Belief, 35 HUMAN RIGHTS QUARTERLY 33, 34 (2013).

544. Id. at 49.

545. Id. at 34.

546. The Foundation of International Human Rights Law, UNITED NATIONS, https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law (last visited Dec. 2024).

547. Id.

548. See generally 21(4) THE REVIEW OF FAITH & INTERNATIONAL AFFAIRS (2023) (Essays in Honor of the 75th Anniversary of the Universal Declaration of Human Rights), https://www.tandfonline.com/toc/rfia20/21/4.

549. David Little, Human Rights, Religious Freedom, and Peace, 2016 BYU LAW REVIEW 1215, 1216 (2017).

550. Id. at 1235.

551. Bielefeldt, supra, at 46.

552. Id. at 47.

553. See id.

554. See Roger Finke, Presidential Address, Origins and Consequences of Religious Freedoms: A Global Overview, 74(3) SOCIOLOGY OF RELIGION 297, 306–09 (2013).