How does the law shape the category of (free) religion, and by which mechanisms does this shaping occur? Building on conversations started at the Centre for Religion, Conflict and Globalisation’s recent conference, ‘Reimagining Difference: Being, Thinking and Practicing Beyond Essentialism’, this collaborative Religion Factor and Religion: Going Public blog series explores law’s approach to – and creation of – religion and religious liberty. In our final post, Gary McLelland of the International Humanist and Ethical Union (IHEU) mounts a defence of the necessary complexity of freedom of religion or belief from the perspective of a human rights practitioner.

Reading Årsheim’s article, my first response was to be somewhat defensive of the bureaucratic complexity that the piece criticised. In this short response I will try to give a defence of the complicated balance of international law and policy commonly called ‘freedom of religion or belief,’ or FoRB.

My second response, and not an unusual one for the head of a global network of atheists, humanists and secularists, is to feel a deep frustration at the use of the exclusivist term ‘religious freedom.’ In this article I will argue that we should all use the term ‘freedom of religion or belief,’ for lack of a suitable alternative.

A desire for simplicity

The desire for simplicity in law and policy is understandable, and indeed admirable. There’s no doubt that for most people legal texts and concepts are unfamiliar, perhaps intimidating. This is despite the fact that the positivist and declarative nature of international human rights law is among the most accessible and jargon-free of legal texts.

Nonetheless, I believe that the emergent complexity surrounding freedom of religion or belief is a necessary and wholly defensible one.

The International Humanist and Ethical Union (IHEU) is both a representative body and a campaigning organisation. We monitor and intervene in situations where an individual’s right to freedom of religion or belief has been breached. This vital work would simply not be possible without the underlying framework of law and policy which has emerged through the post-war human rights movement.

The language of freedom of religion and belief is itself a simplified version of Article 18 of the International Covenant on Civil and Political Rights (ICCPR), which declares ‘the right to freedom of thought, conscience and religion,’ including the ‘freedom to have or to adopt a religion or belief of [one’s] choice, and freedom, either individually or in community with others and in public or private, to manifest [one’s] religion or belief in worship, observance, practice and teaching.’

This right was expanded by the United Nations Human Rights Committee in 1993 when it clarified that freedom of religion and belief was:

[F]ar-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief… freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief… Article 18 [of the ICCPR] protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief… The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominantly religious community…

At the IHEU, we work on the operating assumption – shared, I think, by the majority of human rights experts – that the purpose of freedom of religion or belief is to guarantee that each individual can develop, hold and question their beliefs without coercion or prejudice. This does not mean absolute, unlimited freedom to act upon or ‘manifest’ our beliefs in the ‘outside world,’ but at least to retain sovereign control of the ‘inner self.’ Oftentimes this simple guiding theory can be difficult to achieve in practice.

‘Religious freedom’ vs ‘freedom of religion or belief’

Some scholars, including Elizabeth Shakman Hurd, have criticised the use of the term ‘belief’ as enshrined in Article 18 of the ICCPR. Hurd argues that a focus on ‘belief’ rather than lived experience is a weakness of the freedom of religion or belief approach, and seems to reject what she calls the ‘tokenism’ of including humanists and atheists.

In my view, to focus on terminology is to engage in an argument about semantics. The actual text of the rights contained within Article 18 are ‘freedom of thought, conscience and religion’, and also ‘[freedom of] religion or belief’ (my emphasis). The actualisation of the FoRB agenda occurs when individuals (or groups of individuals) make the claim that their rights have been breached. In this case the necessity of an individualistic approach is clear. Human rights, broadly understood, are a tool for the protection of the vulnerable, maligned and underprivileged. This is precisely why the fundamentals of human rights law lie beyond the control of day-to-day politics, and lie instead in the form of treaties and international ‘soft law.’

Language matters, and the increasing tendency from scholars such as Hurd to deny the value of legal instruments protecting FoRB – and in particular the inclusion of non-religious groups and individuals – is regressive, and contrary to the view of human rights experts the world over. There have been individual non-religious persons (‘heretics’, non-conformists, those who ‘defy the gods’), and sometimes groups of non-religious communities, around the world for as long as there have been contradistinct groups of religious believers. It is also clear that at least some historic societies globally have organised themselves in ways which seek to maintain some distinction between personal and public positions on matters of religion or belief, or to separate religious powers and authorities from other powers and authorities; this broad policy is not a uniquely an invention of the modern West.[1]

IHEU is an advocate for freedom of religion or belief because it works.

IHEU has been able to advocate on behalf of and intervene in dozens of cases where someone’s right to freedom of religion or belief has been breached. There’s absolutely no doubt that the existence of international law and policy on freedom of religion or belief has helped us save lives. Those who would wish to restrict or modify the right to freedom of religion or belief must explain what they would say toMohamed Cheikh Ould M’kheitir or to the other atheists, apostates or blasphemers who languish on death row or risk violent attacks because of their non-religious beliefs.

In his 2017 Annual Report, the UN Special Rapporteur on Freedom of Religion or Belief specifically highlighted the risk faced by the non-religious globally: ‘there has been a worrying trend worldwide towards more targeted discrimination and violence against atheists and non-religious persons in recent years. In particular, 22 countries allow the use of the death penalty for apostasy and at least 13 have capital punishment for atheists.’

As such, the IHEU has made strong statements condemning a move towards an exclusivist form of ‘religious freedom’ (often seen promoted by academics and policy-makers in the United States) over a more inclusive and representative form of ‘freedom of religion or belief.’

For instance, in a statement to the UN Human Rights Council, the IHEU’s Elizabeth O’Casey argued that given the severity and widespread nature of persecution against those with no religion, and because ‘the language used by the UN has fundamental significance, in its descriptive and prescriptive capacity, and in its power to influence international discourse,’ resolutions highlighting the persecution of religious minorities should explicitly mention the persecution of the non-religious also.

Similarly, in a speech to the UK Foreign and Commonwealth Office,Andrew Copson, President of IHEU, said: ‘First let me stress that we promote FORB as a right for everyone, equally. It protects mainstream religious adherents, it protects orthodox and established believers, and it protects the non-conformists, the reformists, the minority sects, the heretics and the splitters. It also protects humanists, atheists, agnostics, those with non-religious worldviews whether systematised or implicit.’

A challenge for policy-makers and campaigners

I can see in Årsheim’s article one significant challenge for policymakers and campaigners in the field of freedom of religion or belief: he is right that at first glance the various treatises and statement on ‘FoRB’ can seem complex or effete and sometimes counter-intuitive.

But there is an alternative to throwing up our hands and rejecting it all as beyond comprehension. And that is to embrace the complexity that exists around freedom of religion or belief and to commit to promoting greater understanding and awareness of these complexities.

Dealing with complicated issues around freedom of religion or belief will never be easy, and there will be times when there is no one solution to the competing rights claims.

The challenge here is to develop a new language and framework for acknowledging this ambiguity.

What next?

I agree with Årsheim on many of the issues he raises. The gap between the bold language of Article 18 and the reality which still persists in many states around the world is stark. However, I am deeply concerned and worried about an overly-simplistic and intolerant form of ‘religious freedom,’ which would further entrench the invisibility of humanists, atheists and other freethinkers around the world.

Language matters, and excluding non-religious people, who are a large and growing constituent in the global population, is a very regressive step. It has been acknowledged by many FORB experts that atheists are ‘at the bottom of the hierarchy’ in terms of human rights, and they face serious persecution and discrimination in the delivery of services around the world.

Instead, I would like to see academics, policymakers and campaigners unite behind the common aim of ‘promoting the greatest possible freedom compatible with the freedom of others and fundamental human rights.’ Taking this as the basic axiom, we can promote a new language of ‘FoRB defenders.’

In March 2017, the Office of the High Commissioner for Human Rightspublished a joint declaration from a range of faith and belief leaders aimed at combatting human rights abuses. This joint declaration, called ‘Faith for Rights,’ which IHEU helped to organise, draws upon the work of Resolution 16/18 in being positively framed and focused on a practical, ‘on the ground’ approach to proactively addressing human rights concerns. The Faith for Rights initiative was developed to appeal to individuals within religious communities, especially those with influence, to develop an understanding of the importance of speaking out against human rights abuses. The document also follows on from the progressive approach of the United Nations by specifically using the terms ‘belief’ and also referring to ‘atheism’ as one of the categories of belief to be so protected:

The Beirut Declaration considers that all believers – whether theistic, non-theistic, atheistic or other – should join hands and hearts in articulating ways in which “Faith” can stand up for “Rights” more effectively so that both enhance each other. Individual and communal expression of religions or beliefs thrive and flourish in environments where human rights are protected.

We need to make the achievements of FoRB understood, and to promote what it means to be a ‘FoRB defender.’

[1] Examples would include the region of modern-day India where a flourishing of different beliefs led to a liberal diversity, with emperor Ashoka declaring in the third century BCE that ‘One should listen to and respect the doctrines professed by others,’ and where the official policy was one of tolerance: ‘All religions should reside everywhere.’