THE RIGHT TO RELIGIOUS FREEDOM IN INTERNATIONAL LAWS

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This article is written by Anshika Srivastava, an intern under Legal Vidhiya

The framers of our Constitution meant we were to have freedom of religion, not freedom from religion.

——————–Billy Graham————————–

INTRODUCTION

Most post-World War II constitutions place religious freedom among the most important human rights. There is still no covenant, legally binding treaty, or an international tribunal to regulate religious freedom, in contrast to other human rights such “the several covenants on torture, freedom of the press, the rights of women, and the duties owed to refugees,” as Robert F. Drinan claims. This is true notwithstanding repeated statements about the importance of religious freedom made by the United Nations and other countries. International law appears to be generally silent about religious freedom in an attempt to create a compromise between the requirements of a pluralistic society and the necessity for such freedom.

For many years, religion was a crucial element of old international law. Religion and international law, however, were split in newly established nation-states as a result of the Enlightenment ideas’ spread and the severity of religious conflict in the 16 and seventeenth centuries.

BACKGROUNDS

Following jurists like Vattel and Wheaton, international law distanced itself from religion so much in the 20th century that it scarcely appears in standard treaties. The issue over religion in international law and current human rights, particularly about the right to religious freedom and conscience, resurfaced after the end of the Cold War.

International accords prioritize the right to religious freedom. After the horrors of World War II, the development and public display of the global community through the United Nations provided the right to religious freedom a significant legal benefit. The original United Nations Charter purposefully avoided having a theistic or non-theistic stance by saying in Article 2 that the organization’s goal is to promote and encourage respect for fundamental freedoms and human rights for all people without regard to race, sex, language, or religion. The 1948 Universal Declaration of Human Rights (UDHR), which was adopted by 48 Nations, was then published shortly after that. According to Article 18 of the UDHR.

Every person has the freedom to practice their religion as they please, including the freedom to adopt a new religion or set of beliefs, to practice their religion openly or in private, and to profess their faith publicly or privately through ritualistic behavior, public declarations, and other means.
The United Nations Declaration on Religious Freedom (UDRF) of 1981, which made explicit the declarations and clauses of the earlier international agreements, tightened international law further in response to the escalating religious tensions around the world and the development of the right to religious freedom.
More cases involving religious freedom have been resolved annually as the European Court of Human Rights has grown, altering perceptions of freedom of religion and conscience not just inside the EU but increasingly abroad. Famous instances include [1]X v. Austria (1981), [2]Kahn v. United Kingdom (1986), and [3]Arrowsmith v. United Kingdom (1978). The ECHR upheld the importance of this right by defining how political power and religious freedom interacted in each of these situations. Although constrained by its libertarian stance on the separation of religion and state, the United States made efforts to enhance its position on religious freedom. The U.S. International Religious Freedom Act of 1988 had substantial political repercussions and boosted global monitoring and reporting of violations of religious freedom.
One noteworthy example of this is the Roman Catholic Church, which has long maintained the opinion that any form of Christianity other than Roman Catholicism should be discouraged and even outlawed by the government. During the Second Vatican Council in 1965, that perspective experienced a significant change.
The Church has “welcomed with joy” the addition of references to religious freedom in international accords. Some Protestant groups took far earlier, more obvious activities. Groups of Protestant and Orthodox Christians called for a “international bill of rights” that would provide “adequate safeguards for freedom of religion and conscience” in the closing statement of the 1948 World Council of Churches (WCC) summit in Amsterdam. Other works, such as the 1998 Universal Declaration of Human Rights by the World’s Religions, also affirm this concept.
Finally, by successfully addressing these issues on a global level, multinational NGOs and civic groups have significantly contributed to the promotion and enjoyment of the right to freedom of religion and conscience. Organizations like the International Coalition for Religious Freedom and the Centre for Religious Freedom carry out professional information gathering and dissemination about religious freedom and violations of conscience, creating priceless the acclaimed 1997 World Report on “Freedom of Religion and Belief.” Among other international civil society organizations, the International Labour Organization administer and promote its members’ rights to practice their faith and conscience in addition to helping to establish and enforce customary international law.
Most people still have no effective means of reporting and receiving judgment regarding discrimination against them based on their beliefs and conscience, although the right to religious freedom and conscience is widely supported and there are numerous declarations, covenants, reports, and organizations. Furthermore, neither nations nor individuals may be required to abide by any legally enforceable documents. The normative argument that penetrates most contemporary societies, which, in Drinan’s words, is concerned that “expansion of the rights accorded to the dictates of conscience can furnish some normative directives” that may be in contradiction with other norms, is the source of this problem.
The freedom of religion and conscience frequently clash with the idea that a political system is superior to all other philosophies. “A religion or belief can be so all-encompassing that it dictates the way some people live in almost every aspect of their lives,” Carolyn Evans claims. There will likely be conflicts between the government’s goals and other people’s want to live their lives and to use their rights. Furthermore, according to Drinan, “almost insoluble problems arise… when a rule imposed by governments is openly at odds with the deep-seated desire of people to live according to their deepest instincts.” worries about extending the right to freedom of religion as well as other issues with government agencies.
Liberal governments frequently adopt a secular perspective on religion given that many people and government officials no longer work to improve religion’s standing to avert issues. There are a lot of former communist countries on this list, along with democracies spread across Europe. These countries consider religion to be a private affair and forbid it from participating in official public life. Examples include the controversy around the hijab in French classrooms and the crucifix in German classrooms in the state of Bavaria.
Additionally, this promotes social globalization, which is often a negative trend. Therefore, it is believed that a universally accepted right to freedom of religion and conscience poses a danger to national sovereignty.
According to Brice Dickson, even the designation of religious organizations as legal actors in the system has the same effect due to distinctive religious practices. are frequently one of the most distinctive characteristics of a minority grouping, and because of this, It is crucial to take into account in this situation the more general international legal standards for the protection of minorities. Because it could be hard to govern religious groups without violating generally enforceable human rights, some nations are hostile to the extension of religious freedom. Understanding China’s current approach requires taking this point of view. States that identify as religious are those whose culture, national traditions, and sense of identity are formed by a particular religion.
This is prevalent in lots of countries with a state religion.
Even while it does not initially require the elimination of official religion or the preference of one faith over another, many people see religious freedom as a first step in this direction. Consider requesting that Ireland reject Roman Catholicism as its official religion or that Spain stop providing precedence to Roman Catholics. Other countries’ distinctive marriage laws, such as those may give rise to intense discussion and be forbidden by international law in Scandinavia, Africa, or Israel, as they have in most Latin American countries.
A fundamental concept of human rights may conflict with the growth of religious freedom and conscience rights. Drinan thinks that the growth of human rights and aspects of international order are better off without religious influence or voice. This perspective is shared by those who want that international law will further commercialize religion and prohibit it from actively contributing to the topic of international human rights. In order to avoid the establishment of an inherent difference that would restrict other human rights legislation, they contend that since many faiths and conscience groups violate human rights through their behaviours, such actions should not be controlled by binding universal norms.
Most human rights are neglected according to the common Western interpretation.
Because international law is founded on a Western conception of human rights, many people worry that it would impose restrictions on their religious activities and beliefs. They reject the idea of becoming “Occidentalized or Islamic zed,” as Heiner Bielefeld asserts. They seriously call into question our understanding of the concept of unalienable rights and the validity of religious freedom.
Therefore, it might be difficult to identify the legal foundation for the right to freedom of conscience and religion. “No definition of religion for constitutional purposes exists, and no satisfactory definition is likely to be conceived,” claims James A. R. Nafziger. The appropriate usage of words like “believe” and “conscience” appears to be governed by specific rules for each credible organization. Because it is so difficult to detect or define what conscience needs, it is troubling if everyone is allowed to claim their right to freedom of religion and conscience as a justification to avoid the proper application of the law.
The last scenario decentralizes the issue by empowering national authorities to deal with it in their own national context, so long as they do so in accordance with universally acknowledged human rights norms (no torture, no imprisonment, and no discrimination against anybody based on their beliefs). In this situation, it’s probable that some issues presently covered by the right to the exercise of one’s religion will be transferred to other, more binding human rights, enhancing the position of religious and moral groups by, for instance, enlarging minority rights law.
Despite Drinan’s assertion that “at the moment, the international human rights community does not appear to have the determination of a covenant,” I believe that religious freedom and conscience rights will become a part of international law as nongovernmental actors acquire strength and moral influence. Drinan and I both agree that the work is complex, subtle, and diverse. Whether it is necessary or practical to uphold rights derived from faith on a global level has not yet been determined by the UN. The inequity that millions of followers and non-adherents experience as a result of their religious membership or lack thereof must be acknowledged by the entire community.

Comparison between the right to religious freedom in Indian laws and international laws

Both Indian law and international law preserve the right to religious freedom, despite notable differences in how these rights are perceived and safeguarded. The freedom to profess one’s religion openly is protected under Articles 25 through 28 of the Indian Constitution. If it adheres to these guidelines, everyone is allowed to openly declare, practice, and promote any religion of their choice. This freedom has been subject to several restrictions for the sake of morality, public order, and health. Everyone is entitled to freely practice their religion in accordance with international law.
However, the non-discrimination component of the right to religious freedom is given more weight by international law. For instance, Article 2 of the ICCPR expressly forbids discrimination based on religion or belief. This implies that discrimination against people or groups based on their religious views is prohibited and that States are required to guarantee that everyone has equal access to the enjoyment of this right.
Both in India and other nations, there have been instances where the right to practice one’s religion has been curtailed. As an illustration, there have been cases of interreligious animosity where a particular religious minority has been singled out and treated harshly. In such circumstances, it is essential that the State respond in a way that ensures that everyone is right to religious freedom is safeguarded without hindrance.

Recent amendments related to the human right of religious freedom in international law

Several recent changes in international law have an influence on the human right to freedom of religion. The following are some of the noteworthy developments:
The Istanbul Convention, which has measures relating to religious freedom, was adopted by the Council of Europe in 2011. Article 12 of the Convention upholds the right to freedom of thought, conscience, and religion and exhorts state parties to take action to end discrimination against people because of their religious or philosophical beliefs.
The UN General Assembly adopted a resolution in 2019 on combating religious intolerance, and a big part of it was upholding the basic human right to freedom of religion or belief. The resolution urges member nations to promote interfaith understanding and tolerance, safeguard holy sites, and preserve interfaith discourse in order to combat hate speech and incitement to violence motivated by religion or belief.
The UN Human Rights Committee’s General Remark No. 36 states the following: The right to life was emphasized in General Comment No. 36, which the UN Human Rights Committee endorsed in 2018. The Declaration advises governments on how to uphold this right in a section devoted to the freedom of thought, conscience, and religion.
Collectively, these successes reveal a rising understanding of the importance of international law’s protection of the right to freedom of religion. To make sure that this right is completely secured and conserved in practice, however, more effort still must be done.

CONCLUSION

The freedom to exercise one’s religion is a basic human right that is protected by international law, it should be stressed. Among other international documents. It is mentioned in Treaties include the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. The freedom to select, practice, and express one’s own religion or belief. or in front of a group of people is a part of the right to religious freedom. It also includes the freedom from pressure and bias based on these things, as well as the right to modify one’s faith or belief. Regardless of a person’s religious or philosophical beliefs, states are required to protect, defend, and take the necessary precautions to prevent this freedom from being violated.

REFERENCES

Special Rapporteur on freedom of religion or belief, International standards, https://www.ohchr.org/en/special-procedures/sr-religion-or-belief/international-standards#:~:text=Freedom%20of%20religion%20or%20belief%20is%20guaranteed%20by%20article%2018,Based%20on%20Religion%20or%20Belief.

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International Human Right Standards: Selected Provisions on Freedom of Thought,conscience,and Religion or Belief, USC, https://www.uscirf.gov/international-human-rights-standards-selected-provisions-freedom-thought-conscience-and-religion-or

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Freedom of Religion, ECHR, https://www.echr.coe.int/documents/fs_freedom_religion_eng.pdf

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Michael Japery, A Right to Religious Freedom? The Universality of Human Rights, The Relativity of Culture, Roger Williams University Law Review, https://docs.rwu.edu/rwu_LR/?utm_source=docs.rwu.edu%2Frwu_LR%2Fvol10%2Fiss2%2F5&utm_medium=PDF&utm_campaign=PDFCoverPages