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Annual Survey of International & Comparative Law

Abstract

The Universal Declaration of Human Rights, inspired by the “four freedoms” articulated by Franklin D. Roosevelt, proclaims but does not define the religious liberty that is the birthright of all people. Four centuries ago, when few people were free, religious ideas fostered the development of some of the fundamental principles of the law of nations. As international law has matured, increasingly it has recognized the right of individuals and groups to pursue their own religions and beliefs. The United Nations system has generated an array of international conventions, covenants, and resolutions which today articulate the rights of adherents to all sects and no sect. Religious freedom – sometimes used as shorthand for freedom of religion, belief, and conscience, is spelled out in the International Covenant on Civil and Political Rights, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and other progeny of the U.N. Charter. Regional level agreements have addressed religious rights, but regional tribunals such as the European Court of Human Rights have not been as discerning as they should be in dealing with cases involving headscarves, missionaries and other issues. The United States, despite its strong constitutional tradition and generally good enforcement of First Amendment rights, has not consistently interpreted freedom of religion in a manner conformance with international standards. For decades the Supreme Court and Congress went back and forth on trying to arrive at a formula on protection of religious minorities adversely affected by facially neutral laws. President Trump’s actions against immigrants and visitors from Muslim countries are a tragic departure from the values that were espoused by the American leaders since the founding of the Republic.

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