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The Renewed Prominence of Religion and Freedom of Religion or Belief (FRoB) Ahmet alibai, CIPS, 23 Feb.

2012 FRoB is as old as history, and as current as todays headlines. o It occupies some of humankinds most ancient narratives (Cain slew Abel; Antigone buried Polyneices; Prince Siddhartha Gautama; Early Muslims in Abyssinia and Madina) o Contemporary struggles replicate ancient tragedies, often on a far more massive scale. o The problems can take mild or acute forms Today the challenge greater and more urgent: pervades the crucial sectors of modern life (culture, civil society, politics and identity, security and conflict). Contrary to the prognostications of secularization theory, religion is not withering away. o The renewed prominence of religion has catapulted issues of FRoB to center stage. In the cultural sphere: o The tension between particularist claims and the view that human rights are genuinely universal precisely in the field of FRoB (proselytism, the right to change ones religion, and the role of women as affected by religion) o The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief has been stalemated as a declaration and has not evolved into a legally binding covenant. At the level of civil society: o The associational rights overlap with and reinforce FRoB o Belief communities are a major repository of altruism and moral commitment. o Civil society organizations' interests may coincide with or diverge from those of religious organizations: alignments with religious communities can be divisive. In politics: o The rise of the religious right in the USA o Rise of political Islam o The role of religion in bringing down communism Identity politics: o Ethnicity and religion are often closely linked and have a long history of spawning conflict (Yugoslavia, Iraq, Sudan). o Politics of sexual orientation (samesex marriage, sexual orientation in internal church politics) Conflict and security: o Whether conflict is motivated by religion or aggravated by politicians who exploit religious identities? The link is undeniable. o Belief communities also play a potent role in conflict prevention & conflict resolution, reconciliation, and social stabilization. Religious leaders have often played courageous roles in helping resolve conflicts. Religion plays critical roles in inculcating habits of honesty, industry, loyalty, .... September 11, 2001 has prompted a shift in thinking about the relationship of religion, freedom, and security. The experience has prompted overreaction Human rights have been sacrificed to the supposed necessities of security. Security purchased with the suppression of rights is only a stopgap.

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Temporary expedients may be necessary, but a solution that fails to protect rights is at best an illusion without a future. Injustice lacks long-term stability.

Religion has stirred new anxieties: o The ambivalence of the sacred (religions capacity for both good and evil) has led to a global resurgence of religion and to global pressures to mitigate religious hazards. o New urgency to questions of how to structure the FRoB. o The alternatives are stark: 1. Either living together (which appears to be possible only by respecting FRoB, whether through state-enforced protections or through internalizing norms of respect for the dignity and religious choices of others), 2. or we must face constant friction, and the ultimate risk of nuclear Armageddon. The right to FRoB has the complex task of protecting religion and its potential for good while permitting certain limitations designed to filter out religions negative hazards. o FRoB addresses both poles of the ambivalence of the sacred. o It also bridges both universal and particular: it constitutes a universal call to respect particular world views and requires particular faiths to endorse universal religious freedom.

Origins Concern by political authorities for religious freedom is much older than the modern state system. o Religious freedom not an end in itself, but as a technique for preserving stability, limiting conflict, or as a pretext for intervention. o In history, religious freedom has been means of avoiding conflict, whereas limiting its enjoyment has been a source of conflict. o In modern times: a shift away from the practice of attempting to ensure civil harmony by keeping people of different religions apart towards providing a common institutional framework for facilitating peaceful coexistence. Four major configurations in the modern evolution of freedom of religion: o Millet system (older than Islam) o the cuius regio, eius religio model, in which the prince determined the religion of his people; o the minority protection model, in which international treaties provided protection for religious minorities; o the contemporary human rights model. Grounds Is FRoB acknowledging and perhaps sanctifying the relativizing of values that pervades our age? Or can it provide social structures within which deeply divided worldviews can live together? o For the latter option we need public justification(s) of the universally applicable human right to FRoB in a religiously, philosophically, and culturally division-prone world. It must facilitate both mutual respect and solidarity across religious and life-stance divides and the unflinching integrity of each normative tradition. o The major contemporary approaches to the dilemmas of religious plurality (traditional half-hearted toleration, religious relativism or skepticism, salvific pluralism, privatization or marginalization of religious commitment, and exclusion of religion from the public) are insufficient. o The alternative: draw on the emerging worldwide public commitment to human dignity as a shared focus for overlapping justification of FRoB. An expressly pluralist approach: the challenge is for every life stance to generate and publicize espousals of the human right to FRoB by embracing the doctrine of inherent dignity while remaining well-grounded in the heartland of their particular normative traditions (vs. prudentially based toleration). The dynamics of overlapping justification (as opposed to mere overlapping consensus) make it possible for one group to come to understand and trust another groups commitment to FRoB and mutual respect, even if the premises of the justification are not totally shared (mutual respect with uncompromised integrity). The Normative Core of FRoB

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Core values that will be protected and features that a regime will exhibit if FRoB is respected. A set of minimum standards; o Some systems go much further in building genuine cultures of tolerance and mutual respect. At the normative level, FRoB is a universally applicable preeminent fundamental (nonderogable ) human right codified in international human rights instruments: 1948 Universal Declaration of Human Rights (Art. 2, 18) 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Art. 2) 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 9) 1966 International Covenant on Civil and Political Rights (Art. 18, 20, 24, 26f) 1981 UN-Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief The vast majority of the worlds nations have ratified the key international instruments affirming FRoB. The ICCPR is the only binding treaty applicable worldwide that specifically and coherently protects religious rights. The normative core of the human right to FRoB may be condensed to eight components: Internal freedom: o Everyone has the right to freedom of thought, conscience and religion; this right includes freedom for all to have, adopt, maintain or change religion or belief. A particular religion or religious community is free to exclude from the religious community and subject to religious discipline a person who has changed religion and departed from the faith, but the individuals civil and political rights should not be reduced as a result. The HRC General Comment to article 18 of the ICCPR clarifies that, Article 18 protects theistic, nontheistic and atheistic beliefs, as well as the right not to profess any religion or belief. FRoB equally protects believers and nonbelievers, religions and beliefs. External freedom: o Everyone has the freedom, either alone or in community with others, in public or private, to manifest his or her religion or belief in teaching, practice, worship and observance. Noncoercion: o No one shall be subject to coercion that would impair his or her freedom to have or to adopt a religion or belief of his or her choice. Nondiscrimination: o States are obliged to respect and to ensure to all individuals within their territory and subject to their jurisdiction the right to FRoB without distinction of any kind, such as race, color, sex, language, religion or belief, political or other opinion, national or other origin, property, birth or other status. Antidiscrimination norms pervade the key international instruments. Restrictions on religious freedom may not be imposed for discriminatory purposes or applied in a discriminatory manner. The nondiscrimination norm is built into the requirement that limitations on religious freedom be necessary in order to be permissible under article 18 of the ICCPR. Some even conclude that not only that non-discrimination is central to the normative core of FRoB, but that the norm in question is only an equality norm. Rights of parents and guardians: o States are obliged to respect 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, subject

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to providing protection for the rights of each child to FRoB consistent with the evolving capacities of the child. Corporate freedom and legal status: o A vital aspect of FRoB is for religious communities to have standing and institutional rights to represent their rights and interests as communities. That is, religious communities themselves have FRoB, including a right to autonomy in their own affairs. They have a right to acquire legal entity status as part of their right to FRoB and in particular as an aspect of the freedom to manifest religious beliefs not only individually, but in community with others. This component is implied in the relevant treaties. There has been disagreement over the years as to whether FRoB has the corporate, group rights dimension or only individual rights The rights of religious communities have now been consistently recognized and protected because FRoB has collective dimensions that cannot be fully protected without an institutional rights bearer that can stand for and express the rights of the community. Religion or belief communities benefit from the protection granted to community activities. Accordingly, there is a corporate dimension that belongs to the normative core of FRoB (even if there is a disagreement on the point whether collectivities can themselves be right bearers). Limits of permissible restrictions on external freedom: o Freedom to manifest ones religion or belief 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 of others. Some limitations on the scope of FRoB are necessary but they are to be construed very narrowly in order to maximize the scope of the freedom. o Permissible Restrictions on FRoB Other legitimating grounds for imposing constraints on manifestations of religion: protection of public safety, order (preventing public disturbances, not generalized sense of prevailing public policies), health, or morals (the least clear and most controversial of the grounds, because of the risk that one religion-based moral principle may be invoked to override another religious belief )or the fundamental rights and freedoms of others. o Nondiscrimination as an additional factor that is vital if a limitation is to be justified; discriminatory treatment invalidates a finding that a particular limitation is necessary, even if it falls within an otherwise legitimate category. genuine neutrality is all too rare a commodity and the differential treatment often amounts to outright discrimination. International and regional human rights bodies are often too deferential in assessing state limitations. The European Court affords governments an unnecessarily broad margin of appreciation. Even if one of the permissible grounds for legislation is present, it is still necessary to demonstrate that the limitation in question is strictly necessary and proportionate.

Nonderogability: o States may make no derogation from the right to FRoB, not even in times of public emergency.

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The fact that the right to FRoB is nonderogable does not mean that limitations may not be imposed on manifestations in that limited range of circumstances where the limitations clauses of international instruments permit.

These elements are continuously receiving additional elaboration. FRoB applies to individual human beings but also includes protection of community activities (component 2) and intergenerational relations (component 5). Individuals are the primary holders and beneficiaries of this freedom; states are the primary addressees and thus the primary holders of the correlative obligationns to safeguard individual, collective and institutional religious group rights.

Models of State-Church Relations Facilitating the human right to FRoB is not limited exclusively to providing legal protection for the eight core components identified above. o There is more to FRoB than human rights protection. Many countries provide additional, more concrete protections in their constitutional or legal orders. o Such national elaborations are largely shaped by the religion-state structure, which stretches from various forms of separation establishment of religion and identification of the state with a particular religion. o Countries that provide for separation of religion and state do so in different formats and to different effects: from the benign neutrality (the USA), various types of lacit or secularism, the harsh subordination that existed in former socialist bloc regimes. o Countries that allow for various degrees of establishment of religion may make legal provision for significant cooperation with, and financial support of, religious institutions.

The institutional configuration of religion-state relations reflects diverse histories, cultures, and political compromises. o The core values protected under the auspices of FRoB allow for a broad range of options in the ways that different states structure the relationship with religion, belief communities, and individual believers. o However, there is a core set of values, including at least the eight identified above, that constitute the minimum requirements for a just society and for protection of the universal right to FRoB.

Various aspects of the interface between religion and the state

The Right to Autonomy in Religious Affairs o the general right of religious communities and institutions to autonomy in structuring their own affairs o autonomy has emerged as a right in both constitutional and international law o one of the crucial features of any system of FRoB because without this right religious authenticity would be compromised and communal autonomy impaired. o Because the religious life of individuals is generally interwoven with the broader life of a religious community, breaches of religious autonomy will violate not only collective and institutional rights, but individual rights as well. o The boundary of religious autonomy goes beyond matters that are strictly internal to the life of a religious community to include a broader range of the communitys own affairs: doctrine and teaching; faith and order; freedom in appointing, disciplining, and dismissing religious personnel; and the operation of charitable and educational organizations. FRoB and Religious Association Laws o One of the most significant areas for facilitating FRoB, both because difficulties at the stage of acquiring entity status through incorporation or registration can have such profound impact on the ability to exercise religious beliefs, and because this is an area in which reform is relatively easy.

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These laws can be applied in very different ways. o Countries with strong human rights records characteristically view such laws primarily as vehicles for facilitating religious freedom. o In other countries, however, a control mentality continues to lead to restrictive applications of religious association laws.

FRoB and Discretionary State Approval of Religious Activity Restrictions on registration, juristic personality, worship facilities, tax status, visas, or approval to run schools Abuse of discretion in these areas can seriously curtail religious freedom particularly of smaller and less popular communities. Different types of problems: unreasonable delay, denial by inaction, and outright refusals stemming from either express or more frequently undisclosed bias. They violate both FRoB and fundamental rule of law values Parents, Children and Religion o Potential for conflict in the triangle of childrens rights, parental rights and duties, and the interests of the state o Need for balance: balance in understanding the best interests of the child, balance in assessing whether children have the right to be different from dominant views in their states or even in their families, balance in weighing the importance of parental authority against the autonomy of the child, balance in resolving how a child should be raised when its parents disagree on religion, balance in determining when children should be seen as symbolizing continuity, affirmation, and the future and when the focus should be on their present. o Sensitive issues concerning religion and education: religious instruction, controversial secular instruction (e.g., sex education), and how the sometimes conflicting interest of the state in educating its future citizenry is to be weighed against parental authority to control what instruction is received. o Child-centered education o The CRC has shifted the weight toward child autonomy Changing Beliefs and the Tensions of Tolerance o Changing beliefs in two senses: o the change registered by the emergence of new religious movements and o the inner individual change marked by conversion. Both lie within or near the boundary of the absolutely unregulable domain of inner belief. Yet both for a variety of reasons continue to stir controversy. This reflects the inner residuum of intolerance and the tensions it creates, even in the central stronghold of FRoB. New Religious Movements . . . One of the more sensitive areas in the field of FRoBthat of the right to have, adopt, or change ones religion, and the related rights to engage in persuasion, missionary work, and proselytism. Convictions about obligations to engage in religious persuasion and missionary work are themselves religious in nature, deserving religious freedom protection as any other doctrines. Efforts to engage in religious persuasion are covered both by freedom of religion and by freedom of expression (double human rights protection) States restrict proselytism both directly and indirectly, intentionally and unintentionally, through their various regulations on registration and manifestation of expression and of religion or belief. Though such restrictions may be neutral in construction, they often lead to impermissible discrimination and may violate religious freedom norms in other ways.

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o Possible criteria for improper proselytism: only inappropriate coercion or cultural imperialism (Is there a right to be left alone, and allow the continuation of diversity of cultures? Is there a right to cultural self-preservation? If FRoB should be protected, doesnt that mean that the religion of the target group should be protected as well? ) Coercion can be coupled with the threat against change of religion or belief as well Various documents explicitly protect freedom to change religion or belief Primarily because of Muslim sensitivities the term change was dropped in the ICCPR and the 1981 Declaration.

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Numerous Islamic countries, for example, legally uphold penalties for apostasy (not sanctioned in the Quran) Political/communal and religious reasons Protecting FRoB in Restricted or Institutional Settings o Prisons, the military, and state-operated medical facilities, schools, universities, airports o o Dress, headgear, diet, compulsion to work on holy days, or being denied the facilities for prayer or other religious practices The tensions relating to the extent to which individual beliefs should be accommodated in such settings (eg. budgetary and security constraints of the prison system).

The US Congressional Religious Land Use and Institutionalized Persons Act of 2000 goes further and insists that no substantial burden be placed on religious exercise even if the burden results from a general rule, unless the government demonstrates a compelling interest and it is the least restrictive means of furthering that compelling governmental interest. This demonstrates that toleration of religious diversity and neutrality is possible in such settings, even in a separationist system such as that of the United States. Conscientious Objection the refusal to obey a legal duty in the name of individual conscience o Instances: military service, performing abortions, participating in flag ceremonies, taking oaths in the name of God o freedom of conscience and FRoB are related but differ in that only individuals can claim conscientious objection. o Conscientious objection to military service is recognized as a constitutional right in some countries, whereas in others it is covered only at the statutory level o Even where recognized in principle, its extension to conscientious objection based on secular ethical convictions or to selective opposition to particular wars or weaponry remains controversial. o In general, a balance obviously needs to be struck between the claims of conscience and the interests of the state. Women The encounter of religious rights and religious vision with the rights of women and the politics of gender. The institutional mechanisms available to foster protection of the FRoB 1. The United Nations Commission on Human Rights Three phases in the work of the Commission with respect to FRoB: (i) standard setting from 194655, (ii) the (painstaking) elaboration of these standards from 196081, and (iii) the implementation phase from 1986 to the present. The Commissions Special Rapporteur on on FRoB.

2. The UN Human Rights Committee and FRoB (jurisdiction is universal)

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o o Article 18 is not the only relevant provision of the ICCPR regarding FRoB. Articles 2(1), 4(2), 24(1), 26, and 27 are also relevant in offering further protection and clarifying nonderogation and nondiscrimination. Three primary functions of the Human Rights Committee: o Considering periodic state reports o General Comments, esp. no. 22 on article 18 of the ICCPR o Case law emerging from individual complaints alleging violation of FRoB.

3. UNESCOs Facilitation of FRoB o Contributes in significant ways to cultivation of tolerance o Less legalistic and less focused on the vindication of rights o Focus on intercultural dialogue and, more particularly, on interreligious dialogue (in the minds of men that the defenses of peace must be constructed.) o Relevant UNESCO declarations, activities, and projects that help foster effective implementation of the ideals of religious freedom 4. System of the Council of Europe The European Convention for the Protection of Human Rights and Fundamental Freedoms, The European Court of Human Rights in Strasbourg (jurisdiction over 800 mil. people) The premier human rights tribunal in the world other human rights institutions are essentially soft law institutions, the Court is able to issue binding and enforceable decisions. No cases were decided by the Court squarely under the religion provision of the European Convention (article 9) until 1993. Since 1998 the volume of case law on religion issues has been steadily increasing o Important for the whole world because the article 9 of the ECHR is almost exactly parallel to the key provisions of article 18 of the ICCPR, and o the Courts decisions are an extremely credible source of persuasive authority on human rights issues. 40 initiatives of the Council of Europes Parliamentary Assembly and Committee of Ministers relate to new religious movements (a recommendation for establishment of information centers on groups of a religious, esoteric or spiritual nature, but at the same time urged governments to use the normal procedures of criminal and civil law against illegal practices carried out in the name of such groups.) Main feature of the Courts jurisprudence o Implicit recognition that there is a margin of appreciation that defers to historically established structures of the relationship between religion and the state. (a practical recognition of the diverse structuresranging from states with established churches, to states with strong cooperationist regimes, to those with a strong laicist separation of church and state). o The restrictions permitted to date are much more skewed toward state initiatives, and that this has the effect of restricting manifestation of religion or belief and freedom of conscience (a kind of secular fundamentalism or indoctrination or secularism-oriented intolerance) o The apparent principle: Equality (article 14 of the European Convention) must be applied rigorously in many contexts to preserve religious freedom, but some flexibility is permissible in structuring cooperation with religious communities, particularly where failure to do so would disrupt long-established patterns and expectations. . . . In other words, article 9 of the European Convention is aimed at providing an adequate guarantee of the right to freedom of religion and belief. Its purpose, however, is not to establish certain uniform criteria for church-state relations in the Council of Europe members states noreven lessto impose a compulsory secularism (lacit). 5. OSCE Established churches are permissible so long as membership in the official church is not mandatory. The Court has also made it clear that the sensitivities of dominant religious communities deserve respect.

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OSCE standards in the field of FRoB are particularly advanced, detailed, instructive, and precise. the clearest delineation of religious liberty commitments in the international arena OSCE commitments are politically rather than legally binding (soft power: persuasion, legal and political aid, as well as both open and discreet criticism) link human rights more clearly to democracy and the rule of law and provide policy prescriptions that can help guide practical realization of religious freedom ideals. OSCE missions and various monitoring mechanisms Implementation Despite broad acceptance of international norms affirming FRoB, experience at the level of implementation has born sad testament to the challenges of effectively protecting this right. Violations remain all too common: o the genocide of religious groups o the incarceration and punishment of individuals primarily for reasons of religion and conscience o the abuse of antiterrorism and national security laws to suppress religious minorities o discrimination and attacks on new religious movements o the incitement of hatred along religious lines (particularly Islamophobia and anti-Semitism)

The spectrum of discrimination and intolerance in the field of religion or belief is vast. o Stringent registration laws, o Unwarranted interference in the internal organization of communities by government o Barriers to the religious education of children hinder the conveyance of the belief to the next generation and may continue the wider publics ignorance about the particular group involved. Different levels of violation deserve different levels of response. The high risk that simmering tensions today may boil over tomorrow. The Relationship of FRoB Norms to Other Human Rights: Normative aspects of FRoB receive independent reinforcement from other human rights norms (freedom of expression, freedom of assembly, freedom of association, and freedom of movement). Besides being mutually supportive and overlap, they can come into conflict. o The overlaps pose few problems: freedom of expression and association, for example, provide double protection in areas such as religious persuasion and the right to acquire legal entity status. o The areas of conflict are more controversial: conflicts that arise from internal disputes within a religious community. the significance of institutional group rights to freedom of religion vesting in religious institutions themselves, as opposed to collective group rights, which vest in the individual members of a group. sphere sovereignty recognizes the exclusive competence of religious institutions to determine their own organization structure, dogma, procedures, activities, and internal disciplinary measures (institutional group right vests in a social institution). the state responsibility to respect the self-determination (religious autonomy) of religious communities (collective group right afforded to individual persons belonging to that category and can be exercised separately and jointly with others of that group). The interaction of equality norms with religious freedom: Often, equality norms reinforce religious freedom protections. Nondiscrimination norms are part of the normative core of FRoB (Some take a strong position in this regard against privileged relationships of particular religious communities with the state, contending that such privileging discriminates against the religions and beliefs that are thereby disadvantaged, condescends towards those it tolerates, and interferes in the internal affairs of the supposedly privileged religion). The significant point is that the strength of the equality norm in contemporary society imposes a burden of justification where privileging occurs.

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o Other situations in which religious freedom protections may collide with equality norms: discrimination by some religions against women and against gays and lesbians.

The tension between liberty and equality