Article III describes, in a very general way, discrimination between human beings as an affront to human dignity and a disavowal of the principles of the Charter of the United Nations and a violation of the Universal Declaration of Human Rights and the International Covenants on Human Rights. I am not sure that it adds anything of legal substance to the Declaration. Certainly it is appropriate in an important United Nations document to recall some of the basic purposes and principles of the organization, but the sentiments could probably have been fitted as well into a preambular paragraph as they have been into the substantive provisions. Article IV requires some social engineering with the use of the tools of the law--civil or criminal. Pursuant to Paragraph 1, states are obligated to take effective measures to eliminate discrimination on the grounds of religion or belief in the enjoyment of human rights in all fields of civil, economic, political, social and cultural life. (This seems to mean discrimination in the private as well as in the public sector.) Paragraph 2 contains the sole substantive obligation on the matter of intolerance as opposed to discrimination.5 In addition to enacting or rescinding legislation when necessary to prohibit discrimination on the grounds of religion and belief, states are required to "take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter." The details of this obligation are left vague, but they must include the adoption of relevant civil and criminal legislation, of administrative practices and perhaps educational campaigns aimed at the eradication of acts and even attitudes of intolerance. (It is obviously easier to legislate to change practices or patterns of behavior than it is to change attitudes of mind, as the history of civil rights legislation in many countries demonstrates.) Article V pertains to the moral life of the child and the rights of parents in that regard. One might have hoped that the Declaration would make specific reference to the right of religious groups or individuals to withdraw from the state school system in order to obtain an alternative "religious" education. The right is, however, spelled out in a number of other documents adopted within the United Nations family and the failure to mention it here in no way derogates from its existence.7 8 Article VI is the most detailed provision of the Declaration. It contains a list of various manifestations of religion or belief which are protected, subject to the demands of public safety and the like referred to in Article I. It includes the rights of worship and assembly, the right to have an appropriate organizational structure (at least for charitable and humanitarian purposes) and to have communications (although not necessarily organic links) with like-minded persons and groups at the national and international levels. Article VI (c) guarantees the right to "Make, to acquire and to use" the "articles and materials" related to the rites or customs of religion or belief. This matter of obtaining religious paraphernalia is of great significance to, for example, Jewish groups in the Soviet Union. There is a less forthright statement of this right in respect of published material. All that the Declaration guarantees in this instance, is the right in Article VI (d) to "publish and disseminate" relevant publications. The absence of the word "acquire" (as used in Article VI (c) relating to "articles and materials") leaves open the argument that the draft does not help in such areas as alleviating the difficulties experienced in sending Hebrew Bibles and other Jewish religious texts to Jews in the Ussr. Despite possible flaws such as these, Article VI is a remarkably detailed and forthcoming statement. In Article VII is not as strongly worded as one might wish, but its import is that the rights guaranteed in the Declaration must not be mere paper rights. There must be effective national means to enforce them. The particular techniques used are left to the legal and administrative traditions of particular countries. a country like the United States, most enforcement might be expected to take place in the Courts. In other societies, bodies such as a Human Rights Commission or an Ombudsman, bodies which act more like a conciliator than a Court, are likely to be used. But some structural action is required. Finally, Article VIII provides that nothing in the Declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights, and the International Covenants on Human Rights. A few examples will show the significance of this provision. (1) Fears had been expressed during the drafting process that the Declaration was taking shape in such a way as to undermine, rather than contribute to religious freedom.9 (2) The Arab nations succeeded in removing from the Declaration any reference to the right to change religion, a right that is specifically mentioned in Article 18 of the Universal Declaration of Human Rights. (3) Rights in respect of religious education are downplayed in the Declaration compared with their 10 statement in other instruments. Article VIII allays any fears that the Declaration is a retrogade rather than a progressive step. I cannot underestimate the importance of this document, the drafting of which proved so painful to the international community. II. Historical Aspects 11 I turn to a little history. It is important to recall how recent the development of the right to religious freedom is, at both the national and international level. At the national level, for example, it was not until after the French Revolution that Jews and Protestants in France had full freedom to practice their religion on the same basis as Catholics. In England, there were various kinds of civil and political disabilities on Protestants not members of the Established Church, and on Catholics and Jews, well into the nineteenth century. Religious freedom was by no means the norm throughout colonial America; there were, of course, shining exceptions like Pennsylvania. The broad principle that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." was guaranteed by the First Amendment to the United States Constitution in 1791, but its details are still being worked out by the Courts. Spain and Portugal introduced Catholicism to their colonies, frequently according it even larger exclusive privileges than it was accorded at home. A Special Rapporteur of the United Nations Subcommission 12 on Prevention of Discrimination and Protection of Minorities notes, not without irony, that: After the February revolution (1917), the Provisional No mention is made of the de facto situation (which was surely different, but the Soviet Union is certainly not the only state where the de facto situation lags behind the de jure one). More recently Hitler's efforts to exterminate the Jews are a grim reminder that religious hatred did not disappear in the twentieth century. At the international level, sporadic recognition (de jure and at times de facto) of the right of religious freedom may be noted. There was, for example, the Treaty of 1536 between Francis I of France and Suleiman I of the Ottoman Empire, which became the precedent for many later "capitulation" treaties in the seventeenth, eighteenth and early nineteenth centuries. It allowed the establishment of French merchants in Turkey and granted them individual and religious freedom, as well as taking many of their affairs out of the jurisdiction of the Ottoman courts. The Treaty |