The Nature and Minimum Standards of Freedom of Religion or Belief
Lerner, Natan, Brigham Young University Law Review
This article provides an overview of the nature and scope of the minimum standards for freedom of religion or belief in the international community, as regulated by the principal international norms. Although the international community had already addressed racial discrimination, racial hatred, and other human rights issues, the United Nations did not address racial and religious discrimination and intolerance until the early sixties, following a series of antiSemitic outbreaks. The United Nations separated the issues and promptly drafted a declaration and convention against racial discrimination. However, the United Nations did not draft a declaration regarding religion and belief until 1981. Moreover, it does not appear the United Nations will draft a convention regarding religion and belief any time soon, for reasons discussed hereafter.1
International organizations have adopted measures intended to guarantee freedom of religion or belief at the global and regional levels. These measures have also had some influence on domestic legislation. The measures address issues such as (1) the nature, scope, and other substantive aspects of freedom of religion or belief; innerand outer-religious freedoms; the expression and manifestation of the freedom; permissible limitations and derogation of the freedom; and how the freedom clashes or interacts with other individual and collective rights, and (2) the procedural aspects available to protect individuals' fundamental rights of freedom of religion or belief, including freedom from religion. Some countries have unilaterally addressed the second issue, while other countries have entered into special arrangements with other countries, churches, religious communities, and congregations.
This article attempts to briefly inventory these measures, which govern the sensitive issue of freedom of religion or belief. Where appropriate, this article also refers to other international instruments that indirectly impact freedom of religion or belief and to the interaction between freedom of religion or belief and other rights, including the freedoms of expression, association, and communication; gender rights; the rights of indigenous people and other special populations, such as migrant workers; educational rights; and children's rights. This article also alludes to problems concerning the relationship between the religious group and its individual members and the religious group (be it a religious congregation or community) and the state. Other articles in this Symposium address several of these issues in more depth.
II. THE NEED FOR THE INTERNATIONAL COMMUNITY TO ADDRESS FREEDOM OF RELIGION OR BELIEF
With the beginning of a new millennium, the international community's continued efforts and interest in development, advancement, and technology present the ineluctable question of whether the international community is likewise ready to make additional advancements in the area of freedom of religion or belief by, perhaps, adopting a mandatory treaty based upon an existing draft or other instrument. Conversely, if the international community sees this next step as premature, undesirable, or risky, the question becomes whether it is possible to agree upon another way to place freedom of religion or belief on equal footing with other basic human rights.
None of the several suggestions and proposals to that effect adequately answer why this essential manifestation of human liberty has received less attention than other fundamental rights. Indeed, religion profoundly impacts the state of the world. Tragic events that demonstrate the powerful influence of ethnicity and religion, and in some cases require the intervention of massive international force, are but additional proof that religion plays a weighty role in xenophobia, racism, group hatred, and even territorial changes. Furthermore, religious persecution and conflicts between believers and nonbelievers; between different churches in multireligious societies; between dominating, protected, or preferred religions and religious minorities; and between newly established religions are all common phenomena. …