Religion and Freedom
PAUL M. TAYLOR
The key texts in the United Nations instruments which most directly concern religious choice, and which are the primary focus of this chapter, are Article 18 of the 1948 Universal Declaration of Human Rights (UDHR), Article 18 of the 1966 International Covenant on Civil and Political Rights (ICCPR), and Article 1 of the 1981 Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief (Declaration on Religion). The freedoms which they embody were much in contention in the development of these texts, none more so than on the question of religious choice. This chapter aims to chart both the historical developments within the UN and some contemporary challenges facing the freedom of choice in religious matters. It also aims to demonstrate the numerous facets of religious choice that are not obvious from the face of those texts.
To put this discussion in context, at least three distinctive features of the freedom of religion as expressed in Article 18 of the ICCPR deserve comment at the outset since they all bear directly on religious choice and operate to enhance the protection afforded by Article 18 in the scheme of related rights.
First, certain constituent rights within the freedom of religion cannot be restricted under any circumstances. These are the right of every individual to have complete free choice in religion (including the right to choose a particular religion for the first time, to change from one religion to another, to become an agnostic or an atheist) and the right not to be subject to coercion which would impair that choice. Only the right of “manifestation” can be restricted, i.e., the freedom of each person “either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” Even then it is also clear that the freedom of outward manifestation of religion may only be restricted in tightly prescribed circumstances and subject to strict preconditions, that is, those that “are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”1
Secondly, Article 18.3 is unique among so-called limitation provisions for its inclusion of the word “fundamental” when identifying the grounds on which