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failed to respond to the fact that the international law of human rights itself had been
developed in a gendered way. 1 Put most simply, If people start off on a different
footing then they will not end up on an equal footing if they are merely treated
equally. 2
It is perhaps with the ambition of allowing for a holistic and interrogative permeation
of human rights values and policies, with a more sustained appreciation of the
perspectives of discriminated targets, that we have now loaded this expectation onto a
new understanding of the norm of equality. This would not merely tinker with
numbers. It would not neglect the burden of history, the structures ensuring the
persistence of discrimination on the grounds of sex and the fact that sex is a central
organizing category in society. 3 It would aim to address the underlying structures
and power relations that contribute to the oppression of women, to transform these
structures 4 and contribute to a world transformed by the interests of women. 5
Although there is something unique about the persistence and structural basis of sex
as an organizing category in society, there are societies where religious discrimination
manifests itself in a structural manner. For example, UN expert Arcot Krishnaswami
wrote in 1960 Underlying most discriminatory practices are prejudices which have
crystallized into mores of a society. In the particular case of attitudes towards
religions or beliefs, perhaps more than in any other field, mores are slow to change
since they stem from deeply held convictions. 6 In many societies, that crystallization
has set deeper and in more communities, over the past 5 decades.
Once such an understanding permeated our laws and policy making in relation to
gender, it had a spill over effect in other target populations. So much so, that back in
2001 one observer referred to the start of a new era for equality law. 7 In the EU, for
example, equality legislation has been developed with the objective of addressing
gender, sexuality, age and religion or belief, but not national status or citizenship. The
UK has gone further than the required European legislation and instigated a unified
equalities legislation to cater for all the areas. All in all, since the 1990s, international
fora have come to an appreciation of the limitations of non-discrimination and this has
led to a consequent push towards equality.
This push has, in turn, broadened the boundaries of former understandings of equality
and increased attention to its multi-faceted and complex, contextually bound
concept. 8 As Fredman explains, Equality as a civil and political right has been
1
Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law, A feminist
Analysis, Manchester: Juris Publishing, 2000, p. 231
2
Noelle Higgins, The Right to Equality and Non-Discrimination with Regard to Language, 10.1
Murdoch University Electronic Journal of Law (2003) available at
http://www.murdoch.edu.au/elaw/issues/v10n1/higgins101nf.html (last accessed May 2010)
3
Katherine ODonovan and Erika Szyszczak, Equality and Sex Discrimination Law, Oxford: Basil
Blackwell, 1988, p. 2
4
Hilary Charlesworth and Christine Chinkin, op cit 1, p. 231
5
Ibid, p. 248
6
Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, U.N.
Doc. E/CN.4/Sub.2/200/Rev.1, U.N. Sales No. 60. XIV.2, p. 63, available at
http://www2.ohchr.org/english/issues/religion/docs/Krishnaswami_1960.pdf (last accessed May 2010)
7
Sandra Fredman, Equality: A New Generation?, 30.2 Industrial Law Journal (2 June 2001), p. 145
8
Alicia Ely Yamin, Shades of Dignity: Exploring the Demands of Equality in Applying Human Rights
Frameworks to Health, 11.2 Health and Human Rights (2009), p. 13, available at
http://hhrjournal.org/index.php/hhr/article/view/169/268 (last accessed May 2010)
primarily concerned with duties of restraint. This manifests as an injunction that the
State be restrained from treating similarly situated individuals differently. 9 She
critiques such a position in the following, when arguing that socio-economic
inequality should be addressed as human rights duties:
The stress on duties of restraint arises from the assumption that agents are
only responsible for inequalities which they have deliberately caused Yet it
is now well established that inequality and discrimination are not necessarily
caused by any one individual. This assumption also confines remedial action
to a complaints-based model of enforcement through litigation. Because the
duty is no more than one of restraining deliberate action, an individual rightsholder must find a perpetrator and prove breach before her inequality can be
addressed. Not only does this fault-based orientation impose a heavy burden
on the individual rights-holder. In addition, the many forms of structural
discrimination which cannot be traced to individual action go unremedied. 10
Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties, Oxford: Oxford
University Press, 2008, p. 176
10
Sandra Fredman, Human Rights Transformed, p. 176
11
Alicia Ely Yamin, Shades of Dignity: Exploring the Demands of Equality in Applying Human
Rights Frameworks to Health, p. 6
12
Katherine ODonovan and Erika Szyszczak, Equality and Sex Discrimination Law, p. 4
13
Katherine ODonovan and Erika Szyszczak, Equality and Sex Discrimination Law, p. 5
14
Sandra Fredman, Human Rights Transformed, p. 178
Ibid, p. 17
(Emphasis added) Ibid, p. 17
23
(Emphasis added) Ibid, p. 20
24
Ibid, p. 21
25
(Emphasis added) Ibid, p. 21
26
(Emphasis added) Ibid, pp. 16-21
22
different (or differential or non-identical) treatment may be (i) legally prohibited, (ii)
permitted or (iii) even mandated, depending on the situation. 27 Different treatment is
legitimate if based on reasonable and objective criteria and to achieve a legitimate
purpose and, indeed, many groups of individuals call precisely for such a recognition
of difference. 28 In the religion or belief realm, such claims for differential treatment
take on a number of guises. We should take on board Fredmans rejection of a faultbased orientation and McCruddens emphasis on active and positive action towards
equality, and see where will that take us in relation to our consideration of this realm.
Having clarified our understanding of equality, we move to the question of equality
for whom? In the context of religion or belief, are we to assess such a freedom for the
individual alone or also for groups of individuals? Within the limitations of this
chapter we will not be able to get into the rich and contested discussions regarding
individual versus collective rights, hence we will use the more cumbersome term
groups of individuals or communities of religion or belief interchangeably. Many
texts clarify this question further. 29 The point of departure for the chapter is merely to
acknowledge that freedom of religion or belief envisages the possibility of the
individual manifesting religion or belief in association with others, and it is intended
to cover this within the terms indicated.
MacNaughtons distinction between the one-to-one conception of equality and the
bloc conception of equality is informative in this regard. One-to-one equality is
defined as the equal application of general rules and laws, such as education and noparking, to everyone. The bloc conception of equality, meanwhile, focuses on equality
within blocs (not within them) such as between men and women. 30 This addresses
various forms of inequality between groups, including direct and indirect
discrimination, intentional and disparate impact discrimination, and de facto and de
jure discrimination. 31 MacNaughton uses Article 2 of the ICCPR to identify these
blocs: race, colour, sex, language, religion, political or other option, national or social
origin, property, birth or other status (Article 2, ICCPR), and notes that bloc equality
is regularly known as non-discrimination. 32 In the context of religion or belief, one-toone equality alerts us to non-discrimination against individuals on the basis of their
religion or belief and also intra-religious discrimination, and bloc equality alerts us to
non-discrimination against particular groups on the basis of their religion or belief
affiliation. It should be noted that in this equality strand like others, it is not always
true that inequality within a group matters less than between groups. 33
27
It is interesting to note here Jeremy Gunns depiction of religion as: belief, identity and way of life.
T. Jeremy Gunn, The complexity of religion and the definition of religion in international law, 16
Harvard Human Rights Journal (2003) available at
http://www.law.harvard.edu/students/orgs/hrj/iss16/gunn.shtml (last accessed May 2010). Yamin refers
to the non-formal positions i.e. the religion as practiced as human status (group based) and human
treatment (individual). Alicia Ely Yamin, op cit 8, p. 4
35
Sophie van Bijsterveld, Equal Treatment of Religions? An international and comparative
perspective in M.L.P. Loenen and J.E. Goldschmidt (eds), Religious Pluralism and Human Rights in
Europe: Where to Draw the Line?, Antwerp: Intersentia, 2007, p. 106
realities make them unavoidable. 36 In fact, she recognises such differential positions
as often being indicative of a system that is beneficial to the manifestation of religion
in its various facets. 37 They may not be a priori made problematic, she argues,
nevertheless the system should be tolerant and open. 38
Whilst van Bijsterveld, in addressing the European rather than global picture, may be
overstating the case by celebrating differentiated relationships between religions and
states as often being indicative of a favourable climate to manifestation of religion
one can think of many examples when sharp differentials of relationships are designed
to suppress the very existence of communities of (minority) religions and beliefs let
alone their public manifestation her claim does remind us that one cannot establish a
Rawlsian veil of ignorance moment of absolute equality of relationships between all
religions or beliefs and a particular state either. The underlying asymmetries of
history, culture, tradition and community make this impossible. The only solution
may be to destroy all such traces in order to achieve an absurd lowest common
denominator of equality for all religions or beliefs. However, even then such an
equalisation would be impossible to deliver at the cultural level unless the state took
radical steps to obliterate such traces. It is perhaps for this very reason that the UN
Human Rights Committee has not problematised the having of a state religion per se 39
but reiterated a strong reminder that this does not give legitimate grounds for
discrimination against others.
Of course the complicating factor here is that many state-religion relationships do not
only have historical and symbolic impacts, they also take on board their reading of
religious legal systems wholesale. This is a huge topic that cannot be addressed fully
here. Suffice it to say that the chapter holds that any difficulties that may flow from
this for example with regards to freedom of expression or family law should be
addressed directly, rather than under the guise of needing to extend that state-religion
relationship to all religions and beliefs.
What is worth noting here is that in human rights instruments all persons are entitled
equality before the law and equal protection of the law; but religions or beliefs as such
are not persons. In such instruments they are entitled to equality before the law rather
than in the law. In sum, the right to equality in human rights law does not support
claims to equality for the truth claims of religions and beliefs as such. The promotion
of equality, pluralism and tolerance requires respect for the human rights of
individuals or groups of individuals believing in those belief systems. That does not
rest on respect for the beliefs themselves. 40 The claim for equal treatment should
relate to an individual or groups of individuals not to a religious or other belief
system.
36
Ibid, p. 117
Ibid, p. 109
38
Ibid, p. 117
39
UN Human Rights Committee, General Comment 22 on Article 18 of the ICCPR, The right to
freedom of thought, conscience and religion, para. 9, available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9a30112c27d1167cc12563ed004d8f15?Opendocument
(last accessed May 2010)
40
Paola Uccellari, Banning Religious Harassment: Promoting Mutual Tolerance or Encouraging
Mutual Ignorance?, 2 The Equal Rights Review (2008), p. 7, available at
http://www.equalrightstrust.org/ertdocumentbank/Paola%20article.pdf (last accessed May 2010)
37
10
I would, however, add a word of caution here. This distinction can become
nonsensical in very extreme circumstances. Arguably, if one is brainwashed from a
young age to consider particular others as evil or worthy of destruction, within a state
framework that overtly fuels that hatred, and communicates that such killing would
not be punishable by law, particularly where there has been a history of such
destruction, 41 then this should be examined within the remit of the protections offered
within the exacting criteria of Article 20 of the ICCPR regarding the prohibition of the
incitement of hatred or within CERDs 2005 indicators of patterns of systematic and
massive racial discrimination. It should not automatically be assumed that this is
absolved from consideration because it falls within this level.
We have observed that in human rights law it is not the truth claims that are protected
but the freedom of an individual or groups of individuals to hold those ideas and
claims. Put more generally, in upholding status-based equality it is not the status that
needs protection but the rights of individual(s) who (choose to continue to) hold and
to assert that status. Therefore, it is not ultimately at this formal level that the need for
equality can or should be delivered, but at the level of the enjoyment of particular
rights by individual(s). This requires attention to numerous areas of law and not just
to the formal state-religion relationship.
See forthcoming article by Nazila Ghanea, Minorities and Hatred: Protections and Implications, 17.3
International Journal on Minority and Group Rights (2010)
42
Sophie van Bijsterveld, op cit 35, p. 105
11
The Equal Rights Trust, The Ideas of Equality and Non-Discrimination: Formal and Substantive
Equality, pp. 6-7, available at http://www.equalrightstrust.org (last accessed May 2010)
12
is the very denial that certain areas of life have religious or belief connotations. In this
way there can be a dramatic shrinking of the scope of freedom of religion or belief at
the outset rather than, what I would argue that the international human rights system
necessitates, the legal justification of necessary limitations on manifestation of
religion or belief. Considering this experts detailed observations, it becomes clear
that a human rights understanding of freedom of religion or belief should firstly give
pronounced attention to rights concerning the having, adopting and changing of
religion or belief and ensuring there is no coercion experienced by an individual or
groups of individuals in relation to these rights. Secondly, we shouldnt neglect the
rights to manifest religion or belief in association with others in worship, observance,
practice and teaching. There is a tendency to impoverish these four areas to suit the
jurisdiction under concern in order not to inconvenience a secular majority or the
machinations of a particular state-religion relationship. However, Krishnaswami alerts
us to the rich diversity and scope of such manifestation with others. In his extensive
79 page, 1960 study, Krishnaswami examined religious rights or practices under the
three headings of freedom to maintain or to change religion or belief; freedom to
manifest religion or belief in worship, practice and observance, teaching and
dissemination of religion or belief; and the management of religious affairs. He gave
separate attention to
whether there are disabilities or discrimination imposed by law, statutory or
customary, which lead to a curtailment of the right of an individual to maintain
or manifest his belief or philosophy by imposing upon him disabilities or
subjecting him to discrimination in the enjoyment of rights other than the right
to religious freedom. 44
Of course, individuals and communities of religion or belief do not only assert
particular manifestations, at times they also claim special exemptions,
accommodations and immunities from general laws in order to avoid violations of
their core claims of conscience and central commandments of faith. Principles of
equality and non-discrimination sometimes appear to conflict when addressing such
claims for exemptions. This chapter has been unable to address, let alone resolve,
such tensions. However, it asserts that a strong reason for such apparent conflict is the
failure to adopt the expanded understandings of both non-discrimination and equality
in international human rights law; and due to assessing claims of or flowing from
freedom of religion or belief at the wrong level.
We have said that that religion or belief communities should (externally) enjoy
equality with others in relation to public life and services and (internally) they should
enjoy equality with other communities of religion or belief in managing their internal
affairs or initiating requests for exemptions. The fact that the beliefs of the religion or
belief community in question do not enjoy formal status in the jurisdiction concerned
(level 1) should be irrelevant to the application of equality to the enjoyment of
individuals of such rights (level 2). Any claims to special exemptions,
accommodations and immunities from general laws that are granted should be
considered with due respect to equality with other religion or belief communities
(level 3), regardless of their formal status or otherwise (level 1). They should be
considered out of our growing understandings from equality legislation over the
decades that there can be an inordinate impact from apparently neutral positions on
44
Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, p. 76
13
particular status-based claims. They should also be considered in parallel with any
concerns regarding the rights of particular individual(s) (level 2). If religion or belief
communities claim the need to discriminate against certain other individual and
groups on religious grounds in decisions regarding their leadership, membership or
employment for example these claims need to be analysed at both levels 2 and 3.
They should not be pursued as claims of equality for truth claims (level 1), as we have
argued that such requests are mute in international human rights terms. The point is
not to pursue formal recognition for particular religious truth claims, the point is to
analyse equality in relation to particular individuals or groups of individuals.
Conclusion
The modest observations offered here suggest that identifying claims at inappropriate
levels confuses the human rights context of such claims. These can, on the one hand,
have the effect of amplifying the claims beyond the human rights framework and, on
the other, can hide legitimate group claims (level 3) on grounds of the impossibility of
equalising the formal truth claim affiliation or state-religion or belief status to all
(level 1). Misconstrued comparators for freedom of religion or belief communities
(level 3) also run the risk of extinguishing legitimate human rights granted such
groups of individuals within human rights law, albeit subject to possible limitations.
These observations are somewhat indicative of the impact of equality patterns on
religion or belief communities.
Though human rights law does not magically resolve debates, 45 good faith requires
that, at a minimum, the full spectrum of its standards should be utilised to inform
human rights claims.
Sources
Sophie van Bijsterveld, Equal Treatment of Religions? An international and comparative perspective
in M.L.P. Loenen and J.E. Goldschmidt (eds), Religious Pluralism and Human Rights in Europe:
Where to Draw the Line?, Antwerp: Intersentia, 2007
Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties, Oxford: Oxford
University Press, 2008
Nazila Ghanea, Minorities and Hatred: Protections and Implications, 17.3 International Journal on
Minority and Group Rights (2010)
T. Jeremy Gunn, The complexity of religion and the definition of religion in international law, 16
Harvard Human Rights Journal (2003) available at
http://www.law.harvard.edu/students/orgs/hrj/iss16/gunn.shtml
Peter Jones, Human Rights, Group Rights, and Peoples Rights, 21 Human Rights Quarterly (1999)
Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, U.N.
Doc. E/CN.4/Sub.2/200/Rev.1, U.N. Sales No. 60. XIV.2, p. 63, available at
http://www2.ohchr.org/english/issues/religion/docs/Krishnaswami_1960.pdf
45
14
Gillian MacNaughton, Untangling Equality and Non-discrimination to Promote the Right to Health
care for All, 11.2 Health and Human Rights (2009) available at
http://hhrjournal.org/index.php/hhr/article/view/181/262
Christopher McCrudden, The New Concept of Equality, 3 ERA-Forum (2003)
The Equal Rights Trust, The Ideas of Equality and Non-Discrimination: Formal and Substantive
Equality, available at http://www.equalrightstrust.org
Alicia Ely Yamin, Shades of Dignity: Exploring the Demands of Equality in Applying Human Rights
Frameworks to Health, 11.2 Health and Human Rights (2009), available at
http://hhrjournal.org/index.php/hhr/article/view/169/268