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FREEDOM of RELIGION, BELIEF and EXPRESSION and INCLUSION of FREEDOM of NON-RELIGION in HUMAN RIGHTS

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Writer: Ada İlyada Utkucu

A. Introduction

As a crucial system, religion still continues to occupy a position of formal and informal privilege in many modern societies. It maintains these privileges even with the growing numbers of people that identify themselves as non-religious. Also, the kept privileging of ‘religion’ is a problem on the grounds that non-religion and atheist individuals are turning out to be always present minorities in numerous societies.[1] Because of the maintenance of these privileges non-religious people are likely being persecuted. However, when looking at the context of human rights instruments and laws, there is an aspect that cannot be ignored of the protection of religious, belief and expression is the protection of those people who label themselves as non-religious. This article examines the inclusion of freedom of non-religion in human rights within the state of play in human rights instruments, evaluates definition of religion and belief within these instruments, and interprets ECHR on international law case for the rights of the non-religious people, also discusses limitations and restrictions of this right in the context of ECHR.

B.1. The State of Play in Human Rights Instruments

Firstly, all the vital and reputable human rights treaties acknowledged the right to freedom of religion or belief as a fundamental human right. Chronologically, Article 18 of the Universal Declaration of Human Rights (UDHR) which was adopted by the United Nations in 1948, Article 18(1) of the International Covenant on Civil and Political Rights which was also adopted by the United Nations in 1966 (ICCPR), and Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which was adopted by  European Council in 1950 (ECHR); all these treaties guarantee freedom of thought, conscience and religion. Also, it is mentioned that all three states include freedom to change one’s religion or belief and freedom, either alone or in community with others and in public or in private, to manifest one’s religion or belief, in worship, teaching, practice and observance. Furthermore, United Nations prepared a declaration which is called as UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief of 1981 (the ‘Declaration on Religion or Belief’). To continue with EU, through the Treaty of Lisbon the Charter of Fundamental Rights of the European Union (EUCFR), has become binding. It also contains the right to freedom of thought, conscience, and religion in Article 10, which regulates as Article 9(1) of ECHR.[2]

B.2. Definition of Religion and Belief

International instruments that guaranteeing the freedom of religion and belief do not provide a definition of religion and belief. When considering vital steps into recognize non-religious people within human rights instruments; in a General Comment on Article 18 ICCPR, according to the Human Rights Committee, this article protects theistic, non-theistic, and atheistic beliefs, as well as the right not to proclaim any religion or belief: that the terms ‘religion’ and ‘belief’ are to be widely interpreted.[3] Along with treaties, there can be also interpretation by the courts to define these terms to finalize the cases. In other words, as one of the courts of human rights in the world, the European Court of Human Rights (ECtHR) has given a wide interpretation to the meaning of religion and beliefs; all traditional religions and beliefs are covered, but also non-religious beliefs and non-beliefs such as pacifism, veganism, and atheism.[4]

B.3. Interpretation of Article 9 of ECHR on International Law Cases

When interpreting Article 9, the national courts and the European Court of Human Rights make a distinction between the right to hold beliefs and the right to manifest those beliefs. The right to hold and to change one’s beliefs is absolute; that means interference with this aspect of Article 9 rights is not allowed. The right to manifest one’s beliefs, which is a limited right will be concerned by most cases. Interferences with manifestation rights can be approved if certain criteria are met, such as in public and private spheres it can be occurred through worship, teaching, practice etc. To be protected under Article 9, there must be a substantial relationship between the belief and its manifestation; but recent case law from the European Court of Human Rights shows that the two do not need to be ‘intimately related.’ Article 9 ordinarily protects generally recognized religious responsibilities and individual behaviours related to beliefs.[5]

B.4. Restrictions and Limitations to Freedom of Thought, Belief and Religion in the Context of ECHR

There are two components of freedom of religion or belief to be viewed in the respect of restrictions under the international human rights law. First one is that the right to freedom of thought, conscience, and religion. That means the right to hold or to change one’s religion or belief and which cannot be limited under any conditions. Secondly, the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary, also adding here “in a democratic society”. According to the ECtHR, the term “necessary in a democratic society” indicates that the intervention must meet a compelling societal need and be proportionate to the legitimate goal achieved. This indicates that there must be a meaningful link between the restriction’s goal and the measures utilized to accomplish that goal.[6]

C. Conclusion

Freedom of thought, conscience and religion are essential necessities in a democratic society. Protecting this basic right requires the preservation of diversity and pluralism in society. International human rights instruments and their interpretations certainly have the intention of providing protection for the religious and non-religious; because there is an aspect of this protection is the protection of those people who identify themselves as non-religious. Public authorities cannot interfere with a person’s freedom to hold or modify her or his opinions but there are specific circumstances to interfere.

Bu makalede yer alan fikirler yazara aittir ve Case’in editöryel politikasını yansıtmayabilir.
Bu yazı ilk kez  18 Ağustos 2021’de yayımlanmıştır.

Bibliography

Alan G. Nixon, “Non-Religion” as Part of the “Religion” Category in International Human Rights, Religions, 2020.

Council of the European Union, EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief (adopted 24 June 2013).

Equality and Human Rights Commission, Human Rights: Human Lives, A Guide to the Human Rights Act for Public Authorities, Publication GD.13.401.

Handyside v UK No. 5493/72, 7 December 1976, para 49.

HRC, General Comment 22, The right to freedom of thought, conscience, and religion (Art. 18), para. 2.

Pacifism: Arrowsmith v UK, No. 7050/75, 12 October 1978; veganism: W v UK, No. 18187/91, 10 February 1993; Atheism: Angeleni v Sweden, No. 10491/83, 3 December 1986.

[1] Alan G. Nixon, “Non-Religion” as Part of the Religion Category in International Human Rights, Religions,2020.

[2] Council of the European Union, EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief (adopted 24 June 2013).

[3] HRC, General Comment 22, The right to freedom of thought, conscience, and religion (Art. 18), para. 2

[4] Pacifism: Arrowsmith v UK, No. 7050/75, 12 October 1978; veganism: W v UK, No. 18187/91, 10 February 1993; Atheism: Angeleni v Sweden, No. 10491/83, 3 December 1986.

[5] Equality and Human Rights Commission, Human Rights: Human Lives, A Guide to the Human Rights Act for Public Authorities, Publication GD.13.401.

[6] Handyside v UK No. 5493/72, 7 December 1976, para 49.

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