Implementing Human Rights Treaties in the United States - a Political Non-starter in America

After the Supreme Court partially invalidated the Religious Freedom Restoration Act (RFRA) in 1997, it was suggested that Congress might reenact RFRA by relying on, among other things, the power to pass legislation implementing treaties. The treaty arguable to supporting RFRA was the Covenant on Civil and Political Rights (CCPR), signed by the U.S. in 1992, which guarantees everyone the right “to manifest his religion or belief in worship, observance practice and teaching” except where limitation is necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. But the subsequent legislative discussion over reenacting RFRA contained nary a mention of this argument-confirming once again that trying to premise domestic laws on international obligations is a political “non-starter” in America.

By Thomas C. Berg, Professor of Law, University of St. Thomas School of Law, Minneapolis; The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United States, page 1277, Emory International Law Review.

Professor Berg is one of thirteen authors from thirteen countries. Belgium, Canada, Estonia, France, Germany, Hungary, Italy, Netherlands, Norway, Spain Turkey, United Kingdom and United States, commissioned to write an article Permissible Scope of Legal Limitations on Freedom of Religion or Belief, for a project on Limitations of Freedom of Religion or Belief of the Trans-Atlantic Consortium on Freedom of Religion or Belief, made possible in part by the Alexander von Humboldt Foundation and the Center for Interdisciplinary Study of Law & Religion at Emory University.

Preface – The First Preamble to the Universal Declaration of Human Rights: Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Surely one of the best hopes for humankind is to embrace a culture in which religions and other beliefs accept one another, in which wars and violence are not tolerated in the name of an exclusive right to truth, in which children are raised to solve conflicts with mediation, compassion and understanding.

There is an increase in dialogue today between religions and other beliefs to embrace diversity, but few persons, less than one percent of any population, ever participate. This is a challenge. The value of such dialogues is proportionate to the level of participation. For civil society increased participation would create opportunities for education on inclusive and genuine approaches to human rights and freedom of religion or belief.

In 1968 the United Nations deferred passage of a legally-binding convention on religious intolerance saying it was too complicated and sensitive. Instead, they adopted a non-binding declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief. While very worthwhile, the declaration does not carry the force and commitment of a legally-binding international human rights convention on freedom of religion or belief.

Religions and other beliefs historically have been used to justify wars and settle disputes. This is more dangerous today as the possible misuse of nuclear and biological weapons of mass destruction increases. Governments need to revisit whether religions and other beliefs trump human rights or human rights trump religions and other beliefs or neither trumps the other; whether culture trumps the universal or universal rights sensitively and with respect trumps culture in the face of this historical truth.

Public Law 105-292 [106-55 as amended in 1999] established the International Religious Freedom Act (IRFA) of 1998. Title I in the Department of State established an office on International Religious Freedom with an Ambassador at Large for International Religious Freedom and an annual International Religious Freedom Report on all United Nations Member States. Title II established a Commission on International Religious Freedom to advise the U.S. Congress on Foreign Policy and annually publish reports on Countries of Concern. Public Law 105-292 has been amended seven times.

The U.S. Department of State International Religious Freedom Report and the U.S. Commission on International Religious Freedom cite Article 18 of the Universal Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights on their websites for reports and programs on religious freedom. They do not use the inclusive term used by the United Nations, Freedom of Religion or Belief. General Comment 22 on Article 18 of the International Covenant on Civil and Political Rights written in 1993 by the United Nations Human Rights Committee says the CCPR protects all theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.

Bahiyyih G. Tahzib, in her commentary, Freedom of Religion or Belief: Ensuring Effective International Legal Protection; “Sensitivity to labels is critically important for religious and non-religious people when trying to reduce intolerance and discrimination based on religion or belief. Passionate anger can quickly arise if people perceive their deeply-held beliefs being described unfairly. Giving a label to matters of religion and other beliefs has always been a challenge to the United Nations and its Member States as it involves complex and sensitive definitional issues.”

The Universal Periodic Review (UPR) is a unique process launched by the UN Human Rights Council in 2008 to review the human rights obligations and responsibilities of all UN Member States by 2011. Click for an Introduction to the Universal Periodic Review, Process and News:
http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx

The United States of America is writing a National Report for presentation before the United Nations Human Rights Council in November 2010. The Tandem Project suggestions that follow are for consideration by the U.S. Department of State in preparation for writing the National Report for the United States of America Universal Periodic Review.

International human rights treaties at a local level may be worthless if there is no local awareness, understanding or use. Waiting for treaties to trickle down from an international to a local level is slow to non-existent. The Tandem Project co-founder represented the World Federation of United Nations Associations (WFUNA) in 1984 participated in a two week Geneva Seminar called by the UN Secretariat on how to implement the 1981 UN Declaration on the Elimination of All Forms of Intolerance of Discrimination Based on Religion or Belief. In 1986 The Tandem Project hosted the first international conference on the 1981 U.N. Declaration on Freedom of Religion or Belief.

The Tandem Project Follow-up built twenty-seven Community Strategies by organizations for the conference in 1986 on how to implement Article 18 of the CCPR and the 1981 UN Declaration on Freedom of Religion or Belief: http://www.tandemproject.com/tolerance.pdf .

These Community Strategies are consolidated in 2010 for The Tandem Project Follow-up into three generic proposals: Integration, Dialogue and Education for Universal Periodic Reviews and exchange of information worldwide with organizations on international, national and local levels.

The Tandem Project uses U.S. State Department International Religious Freedom Reports for Universal Periodic Review Follow-up on Article 18 of the CCPR and the 1981 U.N. Declaration under the title Freedom of Religion or Belief.

The Tandem Project recommends the United States of America National Report for the Universal Periodic Review on 26 November 2010 ask the U.S. Congress to amend the title of the U.S. State Department International Religious Freedom Report and U.S. Commission on International Religious Freedom, to International Freedom of Religion or Belief, to clarify an inclusive approach as embodied in Article 18 of the International Covenant on Civil and Political Rights and the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the United Nations Special Rapporteur on Freedom of Religion or Belief.

The Tandem Project recommends international and national reports are titled Human Rights and Freedom of Religion or Belief to demonstrate a commitment to the inclusive universality of human rights rather than to a religious cultural relativity as the present title religious freedom indicates.

To demonstrate an inclusive and genuine approach to human rights and freedom of religion or belief at national and local levels in the United States the Tandem Project recommends the following:

The Tandem Project is a UN NGO in Special Consultative Status with the
Economic and Social Council of the United Nations

The United States of America Universal Periodic Review will be held by the UN Human Rights Council on Friday 26 November from 9:00 -12:00. Open this link to access reports for the United States of America Universal Periodic Review: National Report; Compilation prepared by OHCHR; Summary prepared by OHCHR; Interactive Dialogue; Comments & Answers; Final Remarks.
HRC Web Cast: Friday 26 November 2010.

The Universal Periodic Review (UPR) is a unique process launched by the UN Human Rights Council in 2008 to review the human rights obligations and responsibilities of all UN Member States by 2011. Click for an Introduction to the Universal Periodic Review, Process and News:
http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx

Article 18: International Covenant on Civil and Political Rights
International Human Rights Law on Freedom of Religion or Belief

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practices and teaching.
No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others.

United Nations Working Group Conclusions and Recommendations will not be posted until after the United States of America Universal Periodic Review.

Re: Questionnaire on awareness, understanding and use of International Human Rights Law on Freedom of Religion or Belief at international, national and local levels.

Objective: Evaluate the effectiveness of international human rights law on freedom of religion or belief at international, national and local levels to promote diversity, tolerance, cooperation, respectful competition and prevent all forms of discrimination and conflicts based on religion or belief.

The Tandem Project is a non-governmental organization (NGO) founded in 1986 to build understanding, tolerance and respect for diversity, and to prevent discrimination in matters relating to freedom of religion or belief. The Tandem Project has sponsored multiple conferences, curricula, reference materials and programs on Article 18 of the International Covenant on Civil and Political Rights – Everyone shall have the right to freedom of thought, conscience and religion - and 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. The Tandem Project privacy policy protects confidentiality.