Time for a Treaty? the Legal Sufficiency of the Declaration on the Elimination of All Forms of Intolerance and Discrimination

I. INTRODUCTION We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims.1 The first lines of the Charter of the United Nations ring out with these words. Yet today, it is hard to hear such words without feeling a sense of doomed idealism. Despite the good intentions of the drafters of the Charter, we, the succeeding generations, have not been saved from the scourge of war; the front pages of the papers remind us of this daily. The dignity and worth of the human person continue to be attacked in the most fundamental ways in torture cells and secret prisons around the world,2 and justice and respect for international law are now argued to be unacceptable luxuries in the war on terrorism by those States who once stood as their strongest supporters.3 Yet this Charter, and the Universal Declaration of Human Rights that rapidly followed it, were not the creation of dewy-eyed idealists or ivory tower academics. They were created by men-and a few notable women-who had experienced the worst of human behavior during war, occupation, and the Holocaust.4 These individuals were not blindly optimistic regarding the capacity of international organizations to bring about instant and significant changes to the way States conducted their business. The failure of the League of Nations during the interwar years was still very recent history at the time the Charter was drafted.5 Yet the drafters of the United Nations Charter still believed that it was important to persist with the difficult, messy, and time-consuming business of creating an international forum where disputes might be resolved peacefully and where human rights standards could be set, even if complete acceptance and implementation of those standards would still take generations.6 Religious freedom is one element of human rights that has received considerable attention in tins international forum. Although the Charter only briefly mentions human rights7 and does not explicidy deal with religious freedom,8 multiple resolutions and treaties have addressed this issue since the inception of the United Nations.9 Despite these efforts, the debate continues as to whether the resolutions and provisions dealing with religious freedom can bind member States of the United Nations without further agreement between these nations in the form of a treaty. Some scholars and diplomats believe that the current resolutions have legal sufficiency to protect religious freedoms. An analysis of the resolutions already in force, and in particular, of The Declaration on the Elimination of All Forms of Intolerance and Discrimination, reveals that the 1981 Declaration may already have some legal effect to require member nations to protect religious freedoms.10 However, even in the event that the 1981 Declaration does not have legal sufficiency, the interests of protecting religious freedom would best be served, not by creating a new treaty, but rather by strengthening the existing mechanisms established to protect and preserve religious freedom. …