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Using and Changing the Law to Fight for Religious Freedom PDF Print E-mail

David E. Birenbaum
Former U.S. Ambassador to the U.N.

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Washington DC, April 17-19, 1998

Not only are we approaching the next millennium, we are at a point when more and more attention is beginning to be directed to religious freedom.

It may be that the issue, internationally, has not had the priority it deserves. In the Cold War period, the focus was on political liberties, with the plight of Soviet Jews being a notable exception. The end of that epic struggle has led to a period of reconstruction in the states of the former Soviet bloc and the need to replace the rule of force with the rule of law. A key issue, in that connection is the treatment of religious freedom and, in particular, the rights of religious minorities. Few of these countries have a pre-Cold War tradition of tolerance, so there is no going back to the future, as the recent action of the Russian Duma to discriminate against nontraditional religions painfully demonstrates.

It may also be that the victory in another epic struggle for human rights—the demolition of apartheid—has similarly allowed the human rights community to focus on other fundamental rights, notably every human’s right to spiritual freedom.

From the suppression of Christians in China to discrimination against Copts in Egypt, the press reflects an increasing interest, as least in this country, in the struggle for religious freedom. So, this is the time for a new and vigorous campaign for the advancement of religious rights within the broader campaign for human rights.

My own involvement with this issue started long ago. Indeed, one of the first cases I handled when I became associated with my law firm concerned the deportation of a Jehovah’s Witness to Greece. He sought asylum on the ground that Greece prohibits proselytizing, a practice required by his faith. So strong was this policy that it was included in the constitution and enforced by jailing proselytizers. This put Greek Jehovah’s witnesses in an impossible dilemma: They could serve God or the state but not both. I gather that is still the case.

I represented the ACLU, which had decided to participate as an amicus curiae in the appeal from the decision of the Department of Justice that the attorney general did not have discretion to deny deportation to the Jehovah’s Witness who had arrived illegally in the United States. The issue was whether the ban on proselytizing amounted to persecution within the meaning of the statute. The Supreme Court had determined that similar bans imposed by certain states were unconstitutional under the First Amendment. But, was the issue—the meaning of persecution—to be determined applying U.S. standards or did Congress intend that international norms be used? The legislative history provided no guidance. I researched the relevant international standards as laid down in the Declaration of Human Rights and subsequently interpreted in a landmark UN study. Both were equally clear: Proselytizing was protected as incorporated in the right of religious expression. I argued that the Greek Witness was in danger of being persecuted and deported to Greece—whether or not the relevant standard was provided by the U.S. Constitution or International Law.

The argument before the 4th Circuit went well, I thought. The court seemed quite interested in the research I had done on the relevant international authorities. It was a very heady experience for a fledgling lawyer. I looked forward to a decision full of learned discussion of the lofty issues I had raised. What I got, instead, was a three-page opinion throwing us out of court on the ground that the appeal belonged in the District Court, not the Court of Appeals. Not a word on the UN Declaration of Human Rights or the report I had taken such pride in discovering.

As it turned out, it was only my pride that took a battering. The Department of Justice decided to grant asylum on the day scheduled for argument in the District Court. I would have liked to think my international law scholarship had something to do with it, but the client’s lawyer deflated that balloon; he had worked out a deal with the Department of Justice after getting a private bill introduced. It was then the policy that the government would not deport someone who was the subject of a private immigration bill.

But I learned a valuable lesson, not only in procedure but in advocacy. Effective lawyering involves the use of all available tools. As applied to the protection of human rights, particularly the rights of religious minorities, that’s an important lesson. Since the applicable law is rarely clear, the issues always politically controversial, and the remedies uncertain, a multitrack approach will most times be needed.

What do I mean by a multitrack approach? Simply, advocates for the rights of minorities must pursue all available legal remedies, while working to develop critical political support. That may also entail seeking relief from the legislature.

Turning first to the legal remedies, first recourse should always be had to domestic law and domestic courts. As distinguished from international forums, these institutions have the authority to provide real relief—to order the government to behave. And most international human rights bodies will require that national remedies be exhausted before they are engaged. That goes as well for appeals from decisions of national to regional courts, as in Europe.

The relevant substantive law, of course, is the law of the country in question, particularly the constitutional law, which may incorporate international law. The good news here is that the overwhelming majority of the world’s constitutions expressly provide for some form of protection of religious liberty. But, there is another and darker reality. Rights on paper may bear little relation to rights in reality. The judiciary may not be fully independent, national bias may hold sway, broad constitutional norms may not be applied to protect unorthodox religious practices, or vague exceptions such as the asserted need to protect the public order may overwhelm the religious liberty interest.

Assuming that domestic remedies are unavailable or unavailing, what remedies can be pursued under international law? Essentially, they consist of those provided within the UN system and through regional institutions. Typically, the relief consists of one or more forms of international opprobrium. The theory is that the offending country will mend its ways. Since most of the countries that have been so branded are beyond the pale (such as Iraq), that is rarely the case. Yet, there remains realistic hope that countries which are jealous of their reputation, as international law abiders will come into conformity with the recommendations of an international body. We may know more about that soon. The UN Human Rights Committee is investigating allegations of religious discrimination by Germany not only against the Church of Scientology but also against the Unification Church.

Before discussing the UN human rights forums, let me briefly describe the primary sources of international law protecting the right of religious expression. While the international protection of minorities, including, in particular, religious minorities, traces back to the Treaty of Westphalia in 1648, the seminal document is the Universal Declaration of Human Rights, adopted in 1948. In particular, Article 18 of the Declaration states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, either alone or in community with others in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.

Article 2 declares the universal right to exercise rights guaranteed in the Declaration free of discrimination.

The Human Rights Committee of the UN has construed Article 18 to apply to nontraditional religious, including newly established religions and religions that “may be the subject of hostility by a predominant religious community.”

Article 18 of the International Covenant on Civil and Political Rights covers much of the same ground as the declaration, but is a legally binding treaty. As a result, it imposes on the state parties an obligation to ensure that the freedom to manifest religious beliefs in action would not be infringed without proportionate justification. While the covenant is not self-executing under U.S. law but requires implementing legislation, that may not be in the case in all states that have ratified it. Approximately 110 states are parties to the covenant, including virtually all the Western countries, the Russian Federation, and all the eastern European countries.

The Human Rights Committee is the competent body for monitoring compliance with the covenant. Composed of 18 experts serving in their individual capacities, the committee reviews and comments on periodic reports from parties on their implementation of the covenant. More importantly, the committee receives and investigates complaints from individuals alleging violations of protected rights by a state which is party to the optional protocol to the covenant. Some 60 states have accepted the optional protocol. If the committee is satisfied that a violation has occurred, it will “forward its views” to the country. That is the only remedy.

The other principal mechanism available to individuals alleging violations of the religious freedom provisions of the declaration or other UN-sponsored human rights norms is the procedure established pursuant to Resolution 1503 of ECOSOC in 1970. This procedure is initiated by the filing of a complaint with the Human Rights Center alleging “gross and reliably attested violations of human rights and fundamental freedoms.” It is referred to the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The sub-commission, an expert body, reviews the complaint and any response from the concerned government and makes a determination whether there are reasonable grounds to “believe that the communication reveals a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.” If so, the sub-commission may refer the matter to the commission, an intergovernmental body provided for in the Charter. If the commission decides to take action, it forwards a recommendation to ECOSOC. Until then, however, the 1503 procedure is confidential.

If that sounds like an enormously prolix procedure for a very uncertain and unenforceable remedy, you are hearing the music. But, the process can yield results along the way, where the government being investigated is embarrassable.

I mentioned the need for a complementary political tract in seeking to remedy violations of religious rights. That is what you are doing at the new International Coalition for Religious Freedom. You are informing, educating, prodding, and pushing. I hope you will have counterparts in the countries where religious freedom is at risk. While each challenge to religious liberty will require the development and implementation of an individually tailored strategy, you can help by providing technical assistance, best case examples, the backing of a large and diverse group, and other forms of support. Above all, you and the other NGOs active in this field of human rights can help by bearing witness and breaking silence.

Silence is the enemy of human rights. That is because there will always be those who will deny the rights of others. Too often, they are the powerful. Always, they will have their way, if their victims quietly acquiesce.

Let me close with two related quotes on that point, from Elie Wiesel and Martin Niemeoller.

Elie Wiesel tells the story of the just man who decided that he must go and fight for human rights, human dignity, and human honor. So he went to law school, then he went to other schools, and then he chose the most sinful of all cities, Sodom. He came to Sodom young and energetic. He went around with posters in marketplaces, telling men and women not to be nasty, brutal, or indifferent to each other. He went on and on shouting. In the beginning people stopped to listen, because, after all, how many just men came to that place? It was good entertainment. He went on. A year went by and nothing changed. Five years went by and nothing changed. He went on shouting. After 20 or 30 years he was an old man. A child stopped him in the street. He said, “Poor teacher. You are shouting and shouting and shouting day after day, don’t you see that it is for nothing?” “Yes, I do,” says the teacher. “Then why do you shout?” “I’ll tell you why,” says the just man. “In the beginning I was convinced that if I were to come and shout loud enough I would manage to change them. Now I know I will never change them. If I go on shouting and shouting louder and louder, it is because I don’t want them to change me.”

Martin Niemoeller’s famous and endearing formulation put it this way: In Germany they came first for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.

So, my message to you is a simple one: Make your voice heard!