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Over the last decades, the process of international standard-setting has played a crucial role in fostering the protection and promotion of religious rights and liberties. International human rights standards have progressively created a comprehensive framework able to deal with serious challenges concerning the relationship between religion and politics and to implement context-sensitive policy-options, aimed at managing religious tensions and establishing democratic institutions in multi-religious societies.
The Universal Declaration of Human Rights (UDHR) represents the first milestone for the protection and promotion of religious rights and liberties. In the decades after its adoption, several international instruments (covenants, conventions, declarations) elaborated the original provisions of the UDHR, developing critical and more specific protections of such rights. The most important international documents including provisions concerning religious rights and freedoms are:
As for their legal status, there are both legally and non legally binding instruments. The UDHR, the Declaration on Religion and the Minorities Declaration are instruments of soft law and do not create binding legal obligations upon member States. However, due to its customary law status, the UDHR may be considered binding upon States. The ICCPR is a legally binding instrument, coming into force upon ratification by a certain number of States and posing legal obligations upon member States.
The Universal Declaration of Human Rights
Human rights have millennium-long roots in several religious, philosophical and cultural traditions. However, their modern legal formulation first came with the UDHR (1948). Thanks to the UDHR, a special category of rights and freedoms emerged to deal with some of the unique needs of religion. Article 2 and 18 of the UDHR called those rights the “rights of thought, conscience and religion” and “freedom from religious discrimination”. Article 18 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.”
Article 18, read in conjunction with article 1, represents the "sacred section" of the UDHR. It applies to all human beings, believers, non-believers, atheists and agnostics. The three fundamental freedoms provided for in this article (thought, conscience, religion) are indivisible, interdependent and interrelated with all other human rights. In article 18, thought, conscience and religion constitute a vital triangle of values of special moral importance for the human being. This structure defines the original juridical subjectivity of the human person, grounded on an integral vision of men and women, made of soul and body, spirit and matter.
The International Covenant on Civil and Political Rights
The ICCPR (1966) is a legally binding treaty ratified by 169 countries in the world. Article 18 repeats and expands the guarantee of religious rights and liberties first announced in Article 18 of the UDHR, stating that:
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.
The Human Rights Committee has elaborated extensive comments on article 18 in its General Comment n. 22 “The right to freedom of thought, conscience and religion” (48° session, 1993). According to this General Comment, article 18 protects not only the “traditional” religious beliefs of the major religions, but also theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. In this sense, the terms "belief" and "religion" are to be broadly construed. The right recognised in Article 18 is simultaneously an individual right and a collective right. It has both an “internal” dimension (the freedom to adopt or hold a belief), and an “external” dimension (the freedom to manifest that belief in worship, observance, practice or teaching). While the internal dimension is absolute, the external dimension can be subject to certain limitations (on the strictly restricted grounds specified in Article 18.3, through a "three-step analysis"). The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4.2 of the Covenant.
Articles 2 and 26 of the ICCPR require equal treatment of all persons before the law and prohibit discrimination based, among other grounds, on religion.
The UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief
The UN Declaration on Religion (1981) further elaborates the provisions on religious liberty indicated by the ICCPR. It is a non-binding instrument containing eight articles, three of which (1,5,6) define specific religious rights and set forth a lengthy and concrete illustrative catalogue of rights to “freedom of thought, conscience and religion”. The remaining articles act in a supportive role, outlining measures to promote tolerance or prevent discrimination. Taken together, the eight articles constitute an useful landmark to advocate for tolerance and to prevent discrimination based on religion or belief. While human rights are mainly conceived as individual rights, the UN Declaration on Religion also identifies certain rights related to religious institutions, parents, legal guardians, children, and groups of persons.
The Declaration on Religion includes more elaborated State measures than the ICCPR to tackle religious discrimination and intolerance. It suggests principles of implementation and application of guarantees urging states to take all “effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life” (art. 4).
The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities
The Minorities Declaration provides the fullest expression of the international right to self-determination of peoples. It affords a religious community the right to practice its religion, an ethnic community the right to promote its culture, and a linguistic community to speak its language without undue state interference or legal restrictions. The right to self-determination provides religious groups some of the same strong protections afforded to religious individuals.
This right has both an individual and collective dimension. As for the individual dimension, members of the group are entitled to profess and practice their religion without undue constraints imposed on that entitlement by the political powers that be. As for the collective dimension, the religious community has a right to self-determination that involves more than a mere accommodating State disposition toward particular sectional beliefs and practices. In fact, in virtue of this right, governments are required to secure, through their respective constitutional and legal systems, the interests of distinct sections of the population that constitute a religious minority.
The Declaration further provides that “States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards” (art. 4).
14/7/2016
