Does the Human Right to Freedom of Conscience, Religion, and Belief Have Special Status?

I. INTRODUCTION Renewed controversy surrounds the status of Article 18, as it appears both in the Universal Declaration1 and in the International Covenant of Civil and Political Rights (ICCPR),2 because of the unanimous adoption by the United States Congress of the International Religious Freedom Act of 1998 (IRFA).3 Considerable concern was expressed during the period of drafting and debate over that bill as to whether the United States, in embracing such legislation, intended to single out and give special priority to religious freedom.4 By requiring the President and other U.S. officials to exert extra effort in support of the right of religious freedom around the world, does the legislation imply that that right has a higher-or at least different-status from other human rights? While the United States is apparently trying to elevate this right, some other governments are urging extreme caution, if not opposition, to promoting religious freedom. These governments, and publicists sympathetic to their cause, fear that American policy, in its new-found exuberance, will ignore-and at times unfairly subvert-- the particular historical experience of others and the delicate place religion occupies in each nation's peculiar identity. What religious freedom means in one national context may be altogether different from what it means in another. In other words, religious freedom is just now the subject of intense international debate, usually described as a controversy over "cultural relativism," or what my colleague Samuel Huntington calls "the clash of civilizations."5 The assumption of those espousing the relativist view is that the world is made up of distinct, self-contained, and conflicting units of culture or civilization. It is supposed to follow from this assumption that notions of human rights, including rights to religious freedom, vary according to culture and tradition. They are not readily translatable from one setting to another. This prompts a pointed question: How does the United States, which is only one country among many, have the authority, by means of IRFA or anything else, to impose on others its particular view of the meaning of religious freedom? In response, I want to raise and comment on two questions regarding the status of the right to freedom of conscience, religion, and belief. One is the status of that right within the corpus of international human rights as well as in Western history. This is essentially a descriptive, empirical matter. The second question concerns the status of this right from the perspective of world opinion. Here we are concerned with normative issues: whether the right to religious freedom is properly regarded as universally applicable in the same way that at least some other human rights are, such as prohibitions against extrajudicial killing, torture, enslavement, etc. 11. LEGAL AND HISTORICAL STATUS OF RELIGIOUS FREEDOM As to the relation of religious freedom to other human rights, it seems clear that existing human rights documents and recent international jurisprudence do give the right to religious freedom a certain kind of special status. The documents themselves elevate that right in some interesting ways. Recall that the right to religious freedom is, with some limitations, included among the nonderogable rights contained in Article 4 of the ICCPR. That fact itself suggests that freedom of conscience, religion, and belief is intended to be thought of as among the most sacred or most fundamental of the universally recognized human rights. Of course, it is not the only right so designated. Article 4 also stipulates that protections from racial, religious, gender, and other forms of discrimination, as well as the prohibition against arbitrary killing, torture, enslavement, etc., are also nonderogable. To be sure, the limitations on the freedom to "manifest one's religion or belief" in regard to "public safety, order, health, or morals or the fundamental freedoms and rights of others," mentioned in paragraph 3 of Article 18 of the ICCPR, also obtain in Article 4. …