Does the Human Right to Freedom of Conscience, Religion, and Belief Have Special Status?

I. INTRODUCTION Renewed controversy surrounds status of Article 18, as it appears both in Universal Declaration1 and in International Covenant of Civil and Political Rights (ICCPR),2 because of unanimous adoption by United States Congress of International Religious Freedom Act of 1998 (IRFA).3 Considerable concern was expressed during period of drafting and debate over that bill as to whether United States, in embracing such legislation, intended to single out and give special priority to religious freedom.4 By requiring President and other U.S. officials to exert extra effort in support of right of religious freedom around world, does legislation imply that that right has a higher-or at least different-status from other human rights? While United States is apparently trying to elevate this right, some other governments are urging extreme caution, if not opposition, to promoting religious freedom. These governments, and publicists sympathetic to their cause, fear that American policy, in its new-found exuberance, will ignore-and at times unfairly subvert-- particular historical experience of others and delicate place religion occupies in each nation's peculiar identity. What religious freedom means in one national context may be altogether different from what it means in another. In other words, religious freedom is just now subject of intense international debate, usually described as a controversy over cultural relativism, or what my colleague Samuel Huntington calls the clash of civilizations.5 The assumption of those espousing relativist view is that world is made up of distinct, self-contained, and conflicting units of culture or civilization. It is supposed to follow from this assumption that notions of human rights, including rights to religious freedom, vary according to culture and tradition. They are not readily translatable from one setting to another. This prompts a pointed question: How does United States, which is only one country among many, have authority, by means of IRFA or anything else, to impose on others its particular view of meaning of religious freedom? In response, I want to raise and comment on two questions regarding status of right to freedom of conscience, religion, and belief. One is status of that right within corpus of international human rights as well as in Western history. This is essentially a descriptive, empirical matter. The second question concerns status of this right from perspective of world opinion. Here we are concerned with normative issues: whether right to religious freedom is properly regarded as universally applicable in same way that at least some other human rights are, such as prohibitions against extrajudicial killing, torture, enslavement, etc. 11. LEGAL AND HISTORICAL STATUS OF RELIGIOUS FREEDOM As to relation of religious freedom to other human rights, it seems clear that existing human rights documents and recent international jurisprudence do give right to religious freedom a certain kind of special status. The documents themselves elevate that right in some interesting ways. Recall that right to religious freedom is, with some limitations, included among nonderogable rights contained in Article 4 of ICCPR. That fact itself suggests that freedom of conscience, religion, and is intended to be thought of as among most sacred or most fundamental of universally recognized human rights. Of course, it is not only right so designated. Article 4 also stipulates that protections from racial, religious, gender, and other forms of discrimination, as well as prohibition against arbitrary killing, torture, enslavement, etc., are also nonderogable. To be sure, limitations on freedom to manifest one's religion or belief in regard to public safety, order, health, or morals or fundamental freedoms and rights of others, mentioned in paragraph 3 of Article 18 of ICCPR, also obtain in Article 4. …