Freedom from religion: strengthening the human right to freedom of religion and belief by securing freedom from religion

Freedom of religion and belief is one of the strongest rights contained in the International Covenant on Civil and Political Rights (ICCPR), but simultaneously one of the most elusive. Article 18 of the ICCPR protects “theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.” And yet jurisprudence is yet to fully explore the capacity of this right to stand up to the challenge of meaningfully protecting freedom of religion and belief across the spectrum of worldviews. At the outset of this thesis, a brief history of religious persecution is offered as a backdrop to the emergence of the human right to freedom of religion and belief, before that human right in its present form is unpacked. The compatibility and incompatibility of freedom of religion and belief and other human rights is explored, with reference to some religious approaches to understanding rights. Pluralism is ultimately identified as a key value in balancing conflicts that may arise between different approaches. The human rights obligations of non-state religious actors are then discussed, before asserting that there is a hierarchy of religion and belief in the practice of international human rights law. Despite the fact that article 18 provides for the equal protection of those who believe in one God, those who believe in many gods and those who believe in no god, monotheists are asserted to occupy the highest rung of the hierarchy, with new religions that have not yet become entrenched in history and atheists below them. This assertion is further explored through case study chapters. A case study on proselytism determines the point at which proselytism, as a manifestation of a person’s religion or beliefs, becomes coercion of another person that should be limited. In the following case study chapter on hate speech, it is found that persons who are hated for their religion are more likely to be protected than those who are hated by the religious. The beliefs and traits of parties concerned are thus found to have more bearing on legal decisions than whether or not the hate speech at issue incites violence. The third and final case study chapter considers the conflict between a child’s right to enjoy religious freedom with the right of her parent to impose a religion or belief upon her. By exploring this tension through analysis of education and the religious circumcision of infants, it is asserted that international human rights law protects parents’ religious rights vis-à-vis their child, above the child’s own rights and freedoms. It is then considered whether the hierarchy of religion and belief is justified. From a rights-based perspective premised on the value of individual freedoms above ideology, the conclusion reached is that such a hierarchy is indefensible and may serve to entrench the vulnerability of people on the basis of their religion or belief. In order to level the hierarchy at play, freedom from religion is ultimately offered as the measure of freedom of religion and belief. Freedom of religion and belief is only meaningful when an individual is free to choose, change, maintain or reject any religion or belief or even profess atheism, and when the rights of people around him are protected from harmful manifestations of his choice.