Safeguarding Religious Freedom in the Americas: A Look at the IACHR's "Estudio Sobre Libertad de Religión y Creencia - Estándares Interamericanos"
An analysis of the Inter-American Commission on Human Rights and its work in addressing religious freedom across the Americas.
by Juan Jimenez, 2024 Spring Associate
Having the opportunity to be an intern at the IRF Secretariat opened my eyes and mind to a new way of understanding the role of civil society in building an understanding of religious freedom. The IRF Secretariat is the organization bringing a space of social, cultural, political, and diverse interaction, where peace is built without straitjackets, without fear of listening, and without fear of being judged. All this is achieved through the IRF Roundtable. This document is a contribution from the perspective of a professional coming from Latin America who seeks to end his internship period by delivering basic knowledge on the Inter-American standards of freedom of religion and conscience. Far from being an innovative article, it summarizes the work carried out by the Inter-American Commission on Human Rights (IACHR).
The Inter-American Commission on Human Rights (IACHR) has made significant strides in safeguarding the fundamental right to freedom of religion and belief throughout the Americas. Their comprehensive study, "Estudio Sobre Libertad de Religión y Creencia - Estándares Interamericanos," provides a critical framework for understanding the scope of this right within the Inter-American human rights system. This foundational document delves into crucial aspects of religious liberty, including its normative origins, general principles, and the potential for legitimate restrictions upon its practice. Importantly, the study connects freedom of religion and belief to other core human rights principles, such as equality, non-discrimination, freedom of expression, and education. Furthermore, it offers essential insights into the protection of vulnerable groups, including LGBTI individuals, children and adolescents, indigenous and tribal peoples, human rights defenders, and those who are incarcerated. In this informative article we will analyze the main contributions and we will understand why this document serves as an indispensable guide for advocates, policymakers, and anyone seeking to uphold religious freedom within the Americas.
What is the regulatory framework used by the Inter-American Commission on Human Rights as a standard in the Americas?
The "Estudio Sobre Libertad de Religión y Creencia" draws upon various legal instruments to establish a comprehensive framework for safeguarding this fundamental right. It incorporates the Rabat threshold test, an international standard for assessing potential incitement to hatred or violence. The Inter-American Commission on Human Rights gives a guide on how to apply the Rabat threshold test in the Americas, and explains that this six-point test analyzes factors like the speaker's category, the speech's content, and its potential to cause imminent harm, ensuring a nuanced approach to protecting freedom of expression without condoning harmful rhetoric.
Furthermore, the study leverages Article 30 of the American Convention on Human Rights, which safeguards against arbitrary restrictions on fundamental rights. This provision ensures that any limitations imposed on religious freedom must be demonstrably necessary, established through legitimate legal channels, and proportionate to the specific aim pursued and the study incorporates principles from the Beijing Rules and the Guidelines on Alternative Care for Children. These instruments guarantee the right of children and adolescents to access food in accordance with their religious beliefs when under institutional care.
An exhaustive list of the applicable norms about religious freedom in the Americas and that is given by the Inter-American Commission in the document, includes:
Based on the provided text from the publication "Estudio Libertad de Religión y Creencia, Estándares Interamericanos" by the Inter-American Commission on Human Rights, the following norms, international conventions, treaties, articles, and jurisprudence can be extracted:
1. Inter-American Standards:
American Declaration of the Rights and Duties of Man: Recognize the right to freedom of religion and worship in Article III.
American Convention on Human Rights: Article 9 and 12 guarantees freedom of conscience and religion in its individual and collective dimensions. It prohibits measures that could restrict this freedom unless prescribed by law and necessary to protect public safety, order, health, morality, or the rights and freedoms of others. It also ensures parents' right to provide their children with religious and moral education in accordance with their own beliefs.
2. Universal Standards (United Nations):
Universal Declaration of Human Rights: The Preamble acknowledges the right to freedom of belief, while Article 18 guarantees freedom of thought, conscience, and religion.
International Covenant on Civil and Political Rights (ICCPR): Article 18 provides detailed provisions regarding freedom of religion and belief.
Convention on the Prevention and Punishment of the Crime of Genocide: Article 2 defines genocide to include acts perpetrated with the intent to destroy a religious group, among others.
3. Other International Instruments:
Rome Statute: Article 6 defines genocide and Article 7 crimes against humanity. Both Articles amount to their categories, the acts committed with intent to destroy, in whole or in part, a national religious group and include persecution against any identifiable group on religious grounds.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981): This is the only universal instrument focused on freedom of religion and belief and upholds the principles of human dignity and equality as outlined in the United Nations Charter and other international human rights instruments. Article 6 of the Declaration precises the content of the right of freedom of thought, conscience, religion, or convictions with a not limited enumeration. It underscores the importance of respecting freedom of religion or belief without discrimination, acknowledging the historical and contemporary impacts of intolerance and discrimination. The Declaration seeks to promote understanding, tolerance, and peace among peoples while preventing the misuse of religion for purposes inconsistent with human rights principles. Its ultimate goal is to eradicate all forms of discrimination based on religion or belief to foster global peace, social justice, and harmony.
4. Inter-American and Universal Recognitions of Collective Dimension:
American Convention: Article 16 recognizes the freedom of association, including for ideological, religious, and other purposes.
American Declaration of the Rights and Duties of Man: Article XXII establishes the right of freedom association to promote, exercise and protect his legitimate interests, including for religious purposes.
ICCPR: Article 27 recognizes the collective dimension of freedom of religion and belief, particularly concerning ethnic, religious, or linguistic minorities.
5. Prohibition of Discrimination:
In the study, the IACHR established that the instruments applicable in the Americas in relation to non-discrimination based on religion or belief at regional level are: OAS Charter (Articles 3 and 45), Inter-American Democratic Charter (Article 9), American Declaration (Article 2), American Convention on Human Rights (Articles 1 and 24), Protocol of San Salvador (Article 3), Inter-American Convention Against All Forms of Discrimination and Intolerance (Article 1).
At the international level there are also multiple instruments that prohibit discrimination on religious grounds: The Universal Declaration of Human Rights (Articles 1 and 2), International Covenant on Civil and Political Rights (Articles 2.1 and 2.2), Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Article 3).
6. Instruments regarding emergency measures and limitations on the right to freedom of religion and belief:
American Convention: Allows in Article 27 States to suspend certain guarantees during states of emergency but prohibits such suspensions based on religious discrimination. Additionally, it includes freedom of religion among the rights that cannot be suspended.
ICCPR: Article 20 specifies legitimate limitations for freedom of assembly when the dominant messenger disseminates national hate, racial or religious that incentivizes discrimination, hostility, and violence.
General comment No. 37 (2020) on the right of peaceful assembly (article 21 of ICCPR): This General Observation clarifies the content of the freedom assembly. The IACHR cited this General Comment where the CCPR explains how the assembly can be protected even if it happens online (paragraph 13). It analyzes cases when it has propagated the hate but specifies that it does not implicate persecuting or limiting all the assembly. As far as possible, the measures would be adopted against the individuals committing the acts (paragraph 50) and the relationship between articles 21 and 18 because the religious assemblies can be protected under the freedom to manifest one’s religion or beliefs.
Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred (A/HRC/22/17/Add.4 (2013): In response to increasing concerns about incitement to hatred, the Office of the United Nations High Commissioner for Human Rights (OHCHR) organized a series of regional workshops in 2011, culminating in the Rabat Plan in 2012. This plan aimed to balance the fight against hate speech, particularly related to religion, with the protection of freedom of expression. Through these workshops, experts explored how countries implement relevant human rights laws and discussed strategies to address hate speech at the national and regional levels. The Rabat Plan, a product of these discussions, likely offers recommendations for governments and other actors on navigating this complex issue prohibiting the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
Report of the Special Rapporteur on freedom of religion or belief (A/HRC/40/58 (2019), annex I and II): This annex of the report explores the complex relationship between freedom of expression and freedom of religion or belief. While the modern world offers unprecedented opportunities for expression, it also sees a resurgence of censorship. The report emphasizes that both freedoms are crucial and interconnected, even when opinions expressed might be offensive to religious communities. Examples like the fatwa against Rushdie and Charlie Hebdo attacks highlight this tension. While some countries abolished blasphemy laws, others introduced "hate speech" restrictions. The report argues that limitations on expression are only valid under strict criteria and often hinder religious freedom. It analyzes cases where limitations impact the ability to practice one's faith and proposes a nuanced approach to navigate these tensions using existing UN frameworks. Ultimately, the report underscores the importance and interdependence of both freedoms while advocating for careful consideration and adherence to international standards when limiting expression.
The Beirut Declaration on “Faith for Rights”: Emphasizes unity over division. It encourages all individuals, regardless of their specific beliefs or lack thereof, to work together to strengthen both human rights and faith. It argues that both human rights and religious expression flourish in environments that respect each other. The Declaration seeks common ground among all beliefs to promote the dignity and equality of all people. It calls for a global, unified effort to create peaceful and respectful societies through collaborative action.
7. According to the IACHR, what other freedoms does the right to freedom of religion include?
The freedom to have or adopt any religion or belief.
The freedom to manifest one's religion or belief, individually or collectively, in public or in private.
The freedom to practice one's religion or belief, including the freedom to worship, to assemble, and to educate one's children in accordance with one's religion or belief.
The freedom to establish and maintain religious institutions.
The freedom to solicit and receive financial support for one's religion or belief.
The freedom to seek and receive religious instruction.
The freedom to leave one's country for the purpose of practicing one's religion or belief.
The IACHR has also recognized that the right to freedom of religion and belief has a collective dimension. This means that the right to freedom of religion and belief applies not only to individuals, but also to religious groups and communities.
The IACHR has not only developed standards on freedom of religion and belief, but has also monitored and reported on the situation in the Americas. This monitoring has revealed a number of challenges to freedom of religion and belief in the region, including:
Discrimination against religious minorities.
Restrictions on the right to practice one's religion or belief.
Violence and harassment against religious groups and communities.
The IACHR has made a number of recommendations to governments in the Americas to promote and protect freedom of religion and belief. These recommendations include:
Adopting laws and policies that protect freedom of religion and belief.
Combating discrimination against religious minorities.
Promoting dialogue and understanding between different religious groups and communities.
8. The obligations of states
States have a number of obligations to protect the right to freedom of religion and belief. These obligations include:
The obligation to respect the right to freedom of religion and belief.
The obligation to guarantee the right to freedom of religion and belief.
The obligation to prevent violations of the right to freedom of religion and belief.
The obligation to investigate and punish violations of the right to freedom of religion and belief.
The obligation to provide remedies for violations of the right to freedom of religion and belief.
9. What are the main vulnerable groups for the IACHR that could face challenges in the exercise of religious freedom?
LGBTI: The IACHR considers LGBTI people vulnerable in relation to freedom of religion and belief due to potential discrimination from communities and authorities. While LGBTI people seek spiritual fulfillment like everyone else, they may face exclusion, denial of access to religious practices, and even violence justified by religious beliefs. The IACHR urges states and religious leaders to combat this by promoting dialogue, understanding, and legal protections for LGBTI individuals.
Children, girls, and teenagers: The IACHR considers children, girls, and teenagers vulnerable in religion due to their evolving beliefs, potential lack of understanding of their rights, and increased risk of discrimination or violence. The IACHR urges states, parents, and religious leaders to work together by ensuring access to religious education aligned with their beliefs, protecting them from religious discrimination and violence, and promoting interfaith dialogue and understanding.
Indigenous peoples: The IACHR considers that indigenous peoples could be vulnerable in relation to freedom of religion due to the close connection between their religion, spirituality, and culture. Their beliefs and practices are often tied to their ancestral lands and natural resources, which makes them particularly susceptible to violations when these territories are affected by development projects, contamination, or other activities. The IACHR has highlighted the importance of protecting the collective dimension of indigenous peoples' freedom of religion, as well as their right to maintain their own identity and culture. States have a responsibility to ensure that indigenous peoples can freely practice their religion and spirituality, and to protect their sacred sites and resources.
Human rights defenders: The IACHR considers human rights defenders vulnerable in relation to freedom of religion due to their work, which can involve defending religious minorities and advocating for religious freedom, making them targets for harassment, intimidation, and violence, while also facing legal restrictions hindering their work. The IACHR urges states to protect their ability to work freely, investigate attacks against them, and enact relevant laws, and calls on religious leaders to speak out against attacks, promote interfaith understanding, and collaborate with governments to ensure their rights are protected.
Persons deprived of liberty: The IACHR considers that persons deprived of liberty could be vulnerable in relation to freedom of religion because they are in a situation of special dependence on the State and may be subject to discrimination or abuse. The IACHR has established that the right to freedom of religion and belief of persons deprived of liberty includes the right to profess, manifest, practice, conserve and change their religion, according to their beliefs; the right to participate in religious and spiritual activities and to practice traditional rites; as well as the right to receive visits from religious or spiritual representatives. The IACHR has also established that States have the obligation to respect the diversity and plurality of religion and spirituality in places of deprivation of liberty, and to respect the limits strictly necessary to respect the rights of others or to protect public health or morals, and to preserve public order, security and internal discipline, as well as the other limits permitted by law and international human rights law.
Overall, The "Estudio Libertad de Religión y Creencia" by the IACHR serves as a crucial guide for both participants of the International Religious Roundtable and global advocates for religious freedom. By outlining the legal framework, highlighting vulnerable groups, and emphasizing state obligations, the study empowers participants to effectively advocate and collaborate, while offering valuable insights and best practices that can be adapted and shared by advocates worldwide, ultimately strengthening the global movement towards protecting this fundamental right.
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References
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