JISPIL Vol 9 Issue 1 2013 - A2

The Right to Change One’s Religion According to Article 18 of ICCPR and the Universality of Human Rights
Katarzyna WażyÅ„ska-Finck and François Finck

The aim of this article is to verify whether a common understanding of the right to religious freedom is possible. To this end the difficulties encountered during the drafting and ratification of Article 18 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the freedom of religion, are analysed. The main disagreement between some Islamic States and several Western States, which became evident already at the drafting stage, concerned the right for a person to change one’s religion. As a result, Article 18 of the ICCPR does not mention this right expressis verbis. However, the Human Rights Committee (HRC) held that it should be construed as covering also the right to change one’s beliefs. The HRC observed that only external manifestations of the freedom of thought, conscience and religion may be limited. Nevertheless, some Islamic States made reservations to Article 18, subjecting its application to the respect of provisions of their Constitution or of Sharia law. 26 States, mainly from Europe and North America, objected to these reservations, arguing that they are contrary to the object and purpose of Article 18. Their reasoning was upheld by the HRC. Some scholars propose to bridge this deep disagreement on a fundamental issue by a new understanding of the universality of human rights. In his calls for ‘inclusive universalism’, Mashood A. Baderin criticizes the strict understanding of universalism – the conviction that human rights norms have (or should have) the same meaning and scope everywhere and for everybody – as a de facto projection of Western norms as universal model that provokes rejection by non-Western States. However, he remains wary of cultural relativism and calls for cross-cultural dialogue. Jack Donnelly’s ‘relative universalist’ approach endeavours to reconcile divergences arising from cultural differences by distinguishing between concepts, conceptions and implementations. There is a universal consensus at the level of concepts, i.e. ‘broad formulations’. However, each concept has multiple defensible conceptions and each conception many defensible implementations. The closer analysis of Baderin’s and Donnelly’s proposals, as well as of the practices of some Islamic States, in particular in relation to apostasy, compels to remain cautious. Clearly, without a clear recognition that the freedom of thought, conscience and religion includes the fundamental freedom of changing one’s religion or belief, Article 18 is deprived of much of its importance.

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