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PREPARATION

UNITED STATES UNIVERSAL PERIODIC REVIEW & FREEDOM OF RELIGION OR BELIEF

Prefatory Note:  The Tandem Project does not do Follow-up Recommendations until after a Universal Periodic Review. This is preparation for the United States of America Universal Periodic Review before the U.N. Human Rights Council on 29 November 2010.  The preparation  includes, United States of America Universal Periodic Review & Freedom of Religion or Belief with a 1998 Report of the U.N. Special Rapporteur on Freedom of Religion or Belief, A Human Rights Treaty Obligation – Political Non-Starter in America,  Exchange of Information – a Model for Places of Worship and a Model for Academic Institutions. The Netherlands Universal Periodic Review is attached for a proposal Exchange with Academic Institutions in The Netherlands and the Twin City area of Minneapolis-St. Paul, United States of America.   

The Tandem Project proposals for Universal Periodic Reviews appear as Follow-up in all country reports. Exchange of Information – a Model for Places of Worship and a Model for Academic Institutions are applicable only to the United States Universal Periodic Review & Freedom of Religion or Belief but may be adapted for places of worship and academic institutions in other countries.

THE TANDEM PROJECT
http://www.tandemproject.com.
info@tandemproject.com

UNITED NATIONS, HUMAN RIGHTS,
FREEDOM OF RELIGION OR BELIEF

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

Separation of Religion or Belief and State

UNITED STATES OF AMERICA

Ninth Session U.N. Human Rights Council Universal Periodic Review (22Nov-3Dec, 2010)

UNIVERSAL PERIODIC REVIEW

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/UPRMain.aspx

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.

These reports will not be available until the time of the United States of America Universal Periodic Review. Tandem Project Follow-up Recommendations will not be available until after the review.  

HRC Web Cast: Friday 26 November 2010.
Ninth Session Archives: Tuesday 30 November 2010
http://www.un.org/webcast/unhrc/
FREEDOM OF RELIGION OR BELIEF

The principle instruments for International Human Rights Law on Freedom of Religion or Belief is Article 18 of the International Covenant on Civil and Political Rights (CCPR) and the 1981 U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

General Comment 22 on Article 18 of the International Covenant on Civil and Political Rights:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9a30112c27d1167cc12563ed004d8f15?Opendocument

The 1981 UN Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief http://www.tandemproject.com/program/81_dec.htm.

The principle of universality of human rights is the cornerstone of international human rights law.

http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

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, practice and teaching.

No one shall be subject to coercion which would impair his freedom to have a religion or belief of his   choice.

Freedom of 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.

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education in conformity with their own convictions.

EXCERPTS

A Human Rights Treaty Obligation – 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.

-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.

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.

The United States of America National Report for the Universal Periodic Review on 29 November 2010 should request to 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 Annual Report on International Freedom of Religion or Belief, to make clear the inclusive approach embodied in Article 18 of the International Covenant on Civil and Political Rights, the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on  Religion or Belief, and the title of the United Nations Special Rapporteur on Freedom of Religion or Belief. Invite the U.N. Special Rapporteur on Freedom of Religion or Belief to visit the United States and do a new report, the first since 1998 and the report by Abdelfattah Amor, U.N. Special Rapporteur on Freedom of Religion or Belief.

Statement made by the United States of America at the U.N. Human Rights Council 2nd Session of the Ad-Hoc Committee on Complementary Standards:

  • “The United States of America did not believe new norms were necessary or useful. The problem was not one of gaps in the existing international legal framework, but rather one of gaps in the implementation of existing norms. Understanding why some approaches did or did not work would be more useful than elaborating new norms. Self-examination and scrutiny were important for all States.”

 

United States - Universal Periodic Review & Freedom of Religion or Belief.

The Tandem Project uses the 1998 report of the U.N. Special Rapporteur on Freedom of Religion or Belief on the United States. Special Rapporteur on Freedom of Religion or Belief: 1998 Visit to the United States of America (E/CN.4/1998/6/Add.2).

http://www2.ohchr.org/english/issues/religion/index.htm

Introduction

1. From 22 January to 6 February 1998, the Special Rapporteur on the question of religious intolerance visited the United States of America in the exercise of his mandate. During his mission, he went to Washington (22 January, 2427 January, 5 and 6 February), Chicago (23 January), New York (2728 January), Atlanta (29 January), Salt Lake City (30 January), Los Angeles (31 January1 February) and Arizona (Phoenix and Black Mesa, 24 February).

2. The Special Rapporteur had talks with representatives of the State Department (including Thomas R. Pickering, UnderSecretary of State for Political Affairs, John Shattuck, Assistant Secretary for Democracy, Human Rights and Labor, and various other officials) and of its Advisory Committee on Religious Freedom Abroad; he also met officials from the Departments of Justice (including the Hate Crime Task Force and Office of the Legal Counsel), the Interior and Education (Office of NonPublic Education), the Immigration and Naturalization Service and the Equal Employment Opportunity Council. In addition, he had talks with Sandra Day O'Connor and Stephen Breyer, Justices of the Supreme Court, to whom he is particularly grateful.

4. The Special Rapporteur also had consultations with a great number of nongovernmental organizations in the field of human rights and with representatives of most religions and beliefs: Native Americans, Christians, Muslims, Jews, Buddhists, Hindus, Jehovah's Witnesses, SeventhDay Adventists, Mormons, Baha'is, Scientologists, atheists, etc. An essential part was played in the success of this mission by the assistance of nongovernmental organizations and private individuals, including in particular: Michael Roan of the NGO Tandem Project in Minneapolis; Craig Mousin of DePaul University in Chicago; John Witte Jr. of Emory University in Atlanta; Cole Durham of Brigham Young University in Utah; Sue Nichols, chairman of the NGO Committee on Freedom of Religion or Belief in New York; Jeremy Gunn of the United States Institute for Peace in Washington; Andrea Carmen of the NGO International Indian Treaty Council; Salam AlMarayati of the Muslim Public Affairs Council and the Interreligious Council of Southern California in Los Angeles; the International League for Human Rights; the International Religious Liberty Association; and the American Jewish Committee. To all of these the Special Rapporteur would like to express his thanks. His thanks also go to the Office of the United Nations High Commissioner for Human Rights.

Conclusions and Recommendations

70. The Special Rapporteur has endeavored to give an account of the legal situation in the United States of America in the field of religion or belief and at the same time to analyze the situation with regard to tolerance and nondiscrimination based on religion or belief. His study has dealt with the present picture with regard to religion and belief, and in particular with the “minority” communities in the field of religion and belief. He has made a special effort to analyze both the religious and the nonreligious spheres and the relationship between religions, between beliefs and between society and the State.

71. Concerning the legal situation in the field of religion or belief, the existence of a well developed Constitution and legislation has to be recognized. The two constitutional clauses relating to “non-establishment” and free exercise constitute fundamental guarantees for the protection of religion and belief, particularly within the context of the mosaic of religions and beliefs that is typical of the United States. It is evident, however, that the interpretation of these two clauses by the Supreme Court creates problems, because they are sometimes seen by some people as prejudicing the freedom of religion and belief, more particularly of religious minorities.

Firstly, concerning the clause on free exercise, many religious and nongovernmental representatives contest the “new” jurisprudence that emerged from the Smith case, establishing that neutral laws of general applicability do not typically offend the free exercise clause merely because in application they incidentally prohibit someone's exercise of religion, and therefore the Government no longer has to demonstrate a compelling interest unless a law is specifically targeted at a religious practice or infringes upon an additional constitutional right. The religious communities feel that they are thus vulnerable in the face of legislation and political and administrative institutions governed by a conception of the separation of religion and the State which requires that everyone must comply with the same rules and regulations, and which hence regards any request from religions that their specific nature should be respected in their rights and freedoms as a request for privileges.

 Secondly, concerning the clause on “non-establishment” of religion, the Supreme Court's interpretation, particularly with regard to public aid for religion, recognition of religion in State schools and financial aid given by the Government to religious schools, unfortunately appears from a general viewpoint to be vague and confused, as was stated, incidentally, by members of the Supreme Court. According to John Witte, professor at Emory University in Atlanta, the development of a coherent and comprehensive framework for interpreting and applying the two constitutional religion clauses would be most useful. That unified approach could come in a variety of forms through grand synthetic cases or through comprehensive statutes, restatements, codes, or even constitutional amendments (“The Essential Rights and Liberties of Religion in the American Constitutional Experiment”, Notre Dame Law Review, vol. 71, No. 3, 1996).

The Special Rapporteur wholly endorses the approach of taking into account the traditions of other peoples as reflected in the main United Nations human rights instruments, namely, the International Covenant on Civil and Political Rights (article 18 and General Comment No. 22 of the Human Rights Committee; see paragraph 78 below) and the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. For example, the prioritizing of liberty of conscience, free exercise and equality principles might well serve as a prototype for the integration of the values enshrined in the free exercise and “non-establishment” clauses. This second approach would be a way of correcting the attitude of the United States of America that human rights are to be treated as belonging to international affairs and not as a domestic matter. We may point out here that this attitude was also noted by Mr. Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions, in his report on his mission to the United States of America (E/CN.4/1998/68/Add.3).

72. There certainly is federal legislation providing protection in the sphere of religion and belief, but it is fragmentary, only dealing with certain aspects of the freedom of religion and belief and certain infringements of that freedom. As regards, in particular, Title VII of the 1964 Civil Rights Act, concerning religious practice at the workplace and the employer's obligation to make “reasonable accommodation”, it seems that it has limited effect and that there is a problem of generally restrictive interpretations by the courts in the matter of religion. The Special Rapporteur considers that this legislation needs to be strengthened and hopes that the Religious Freedom in the Workplace Bill and the guidelines for the protection of freedom of religion in federal institutions announced by the Clinton Administration will contribute to that end. In general, the Special Rapporteur considers that in the absence of a consistent and detailed framework within which the two constitutional clauses on “non-establishment” and free exercise of religion could be interpreted and applied, a general law on freedom of religion and belief based on the relevant international human rights instruments and conforming with those two clauses would provide appropriate and necessary legal protection for the freedom of religion and belief in general, but above all for communities in the field of religion or belief. Such a law could also be able to incorporate the advantages of the two constitutional clauses while encouraging State religion
relations based on an appropriate dynamic equilibrium and avoiding extreme situations of “anti-religious clericalism” and “religious clericalism”.

Exchange of Information – Model for Places of Worship

The Tandem Project seeks an exchange of information and ideas with Places of Worship  in the Twin Cities as preparation for the United States of America Universal Periodic Review as a model for early childhood education on freedom of religion or belief.  This is a model  of interfaith dialogue in a forum for faith traditions, how they introduce their own beliefs to their youngest members and whether at this age introducing personal choice as a human right is possible within their traditions. 

The development of model early childhood education in Places of Worship can be a benchmark for human rights education (HRE) on how they may support government obligations and responsibilities to Article 18 of the International Covenant on Civil and Political Rights. (see The Tandem Project proposal #3 below).  

Exchange of Information – Model for Academic Institutions

The Tandem Project seeks an exchange of information and ideas with  Academic Institutions  in the Twin Cities as preparation for the United States of America Universal Periodic Review as a model for multi-disciplinary strategies on inclusive and genuine approaches to human rights and freedom of religion or belief.  This is a model for multi-disciplinary dialogue in a forum for academic faculty, how they express their own beliefs and whether support for inclusive and genuine study and research on human rights and freedom of religion or belief is possible within their disciplines.  

The development of model  multi-disciplinary academic strategies can be a benchmark for human rights education on inclusive and genuine approaches to human rights freedom of religion or belief on how academia may support government obligations and responsibilities to Article 18 of the International Covenant on Civil and Political Rights. 

Netherlands – Universal Periodic Review & Freedom of Religion or Belief

The Tandem Project Follow-up in the Netherlands Universal Periodic Review & Freedom of Religion or Belief proposes an Exchange of Information with Academic Institutions in The Netherlands and the Twin Cities of Minneapolis-St. Paul, Minnesota. The Tandem Project is located in the Twin Cities of Minneapolis-St. Paul, Minnesota. Macalester College is located in St. Paul, Minnesota.

Macalester College Institute for Global Citizenship:
http://www.macalester.edu/igc/

Macalester's Faculty Development International Seminars, held every other year, engage 10 to 15 Macalester faculty and staff in a three-week intensive learning and independent study program overseas.

A three week Seminar, was implemented in May/June 2010 in The Hague and Amsterdam, and engaged participants in the concept and practice of "Global Citizenship"with special focus on questions of human rights and urban life. In October 2010 Macalester College in St. Paul Minnesota will have an all college campus Roundtable on Human Rights.

THE TANDEM PROJECT FOLLOW-UP

  • HISTORY: The United Nations failed to achieve consensus on a legally binding international treaty on religious intolerance, settling instead for the non-binding 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief.

http://www.tandemproject.com/program/history.htm

  • STATISTICS: The United Nations protects all theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. Statistics: builds the case for an    inclusive and genuine approach to implementing human rights and freedom of religion or belief.

http://www.tandemproject.com/program/major_religions.htm

1984: A co-founder of The Tandem Project represented the World Federation of United Nations Associations (WFUNA) in 1984 at the 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.

1986: Minnesota held the first International Conference on how to implement the 1981 United Nations Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief. Thirty-five international delegates and thirty-five Minnesota delegates were invited. Minnesota organizations and individuals proposed twenty- seven Community Strategies on how to implement the 1981 U.N. Declaration under: Synopsis, Strategy, Objectives, Program Approach, Obstacles and Outcomes.
 
Minnesota Community Strategieshttp://www.tandemproject.com/tolerance.pdf

2010: The Tandem Project suggests three generic proposals on Integration, Dialogue and Education consolidated out of the 1986 strategies to implement International Human Rights Law on Freedom of Religion or Belief as a follow-up to the Universal Periodic Review.

  • Develop model integrated approaches to International Human Rights Standards on Freedom of Religion or Belief at national and local levels to test the reality of implementation as appropriate to the constitutions, legal systems and cultures of each country.
  • Use International Human Rights Standards on Freedom of Religion or Belief as appropriate to each culture and venue for inclusive and genuine dialogue on freedom of religion or belief.   
  • Apply International Human Rights Standards on Freedom of Religion or Belief in education curricula as appropriate in all grade levels, teaching children, from the very beginning, that their own religion is one out of many and it is a personal choice for everyone to adhere to the religion or belief by which he or she feels most inspired, or to adhere to no religion or belief at all.

“Our educational systems need to provide children with a broad orientation: from the very beginning, children should be taught that their own religion is one out of many and that it is a personal choice for everyone to adhere to the religion or belief by which he or she feels most inspired, or to adhere to no religion or belief at all.” 2006- Mr. Piet de Klerk:  Ambassador-at-Large of the Netherlands on Human Rights.

Reflections

The First Preamble to the Universal Declaration of Human Rights reads: 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 human rights sensitively and with respect trumps culture in the face of this historical truth.

  • QUESTION: Human nature is intractable as weapons of mass destruction increase with national-ethnic-religious justification. The U.N.  Review Conference on the Nuclear Test Ban Treaty and studies on the use of biological and cyber weapons demonstrate this trend as a growing concern. The question is whether present International Human Rights Law on Freedom of Religion or Belief is enough or if a core human rights treaty on freedom of religion or belief, supported at a higher level, would reduce the risk of using weapons of mass destruction. Synergy meaning each is incapable of acting alone on this issue needs consideration by the U.N. Security Council and U.N. Human Rights Council.

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.

Attachements: United States - Universal Periodic Review & Freedom of Religion or Belief; Exchange of Information - Model for Places of Worship; Netherlands - Universal Periodic Review & Freedom of Religion or Belief; Human Rights Treaty - Political Non-Starter in America; Exchange of Information - Model for Academic Institutions