Treating Religious Freedom as a Human Right is a Problem, Not a Solution

One could hardly ask for more seemingly benign terms than religious freedom and human rights. To casual observers, problematizing these terms is doubtless akin to vilifying kittens or calling for the eradication of rainbows. Who, after all, would want to go on record as being anti-freedom? Who would want to deny the importance of universal human rights? 
Yet each of these seemingly innocuous phrases has a fraught history and a contentious present. These problems derive from contested definitions of religion and freedom and the unfeasible enforcement measures intrinsic to both religious freedom and human rights. I would like to address each of these issues as a way of responding to the posts by Elizabeth Shakman Hurd and Ed Brown. I will close with some thoughts on how scholars and rights advocates can find common ground despite evident differences in our aims and approaches.  
Speaking to the Choir at the Oslo Meeting
I fear that Brown misses Hurd’s point when he stresses the international nature of the Oslo meeting and the leadership roles played by countries other than the US and the UK. A skeptic could argue that meeting attendees were a self-selecting group that was predisposed to think of religious oppression as a problem and religious freedom as a solution. It therefore does not tell us much to say that attendees from around the globe were calling for more religious freedom. 
The leadership role the US and UK have played in recent years is also of greater geopolitical importance than Brown acknowledges. But the problem Hurd identifies is not merely one of diplomatic leadership. The promotion of international religious freedom (IRF hereafter) is premised on the problematic assumption that the activist or policymaker knows religion when she sees it. It does not account for the fact that some practices, dispositions, and groups will escape the activist’s notice, or that she will deem others unimportant or anathema. 
Advertising IRF through References to “Bad Religion” is Ethically Suspect
The striking claim in the opening of the Oslo Charter that violations of religious freedom are
increasing worldwide should also be taken with a grain of salt. The Charter does not cite a particular source, but the recent studies that have shown a rise in infractions of religious freedom (like this one from Pew Research Center) are often biased because — in addition to mobilizing rigid understandings of “religion” — their statistics are generated by the very governmental and nongovernmental organizations that are most interested in presenting religious freedom as under threat. In other words, the perennial problem of how to define religion creates a methodological blind spot in academic studies of religious hostilities, but despite this problem the studies are used to bolster the claims on which IRF charters are based. 
While Brown acknowledges that references to ISIS (also called ISIL, IS, or DAESH) featured in promotional materials about the Oslo meeting, he dismisses this information as unimportant in light of the global aims of the conference. But this is hardly unimportant. When a sensational military conflict is used to advertise an international meeting about the importance of promoting religious freedom, it affects the way that religious freedom is perceived. There is no question in this case that IRF is being positioned as a counter to “religious extremism.” The conference organizers have to have known this. To claim otherwise beggars belief.
To be clear, the violent actions of ISIS are deplorable. But the recent media and governmental rhetoric vilifying ISIS is part of a broader pattern, ably described in Hurd's post, of identifying certain religious dispositions as “good” (because ostensibly irenic) or “bad” (because putatively divisive). There is a tacit theological presupposition operating here (“real religion is peaceful”) that deserves scrutiny. If religious freedom advocates mark certain theologies and religious dispositions as illegitimate, then the freedom they claim to promote becomes suspect. 
Appeals to Human Rights Forestall Criticism and Undermine Reflection
This problem frankly cannot be waved away with the magic wand of human rights. The language of human rights as used in the Oslo Charter functions to make religious freedom seem timeless, universal, and unquestionable. But human rights have a history. When it comes to definition and enforcement, they are just as problematic as religious freedom.    
In recent years a number of historians have persuasively shown that we can and should question teleological narratives that plot the rise of human rights on a straight line from early modern European political theory to the 1948 Universal Declaration of Human Rights (UDHR). While there is some disagreement about periodization, these historians generally agree that human rights only came into existence when they became targets of meaningful international enforcement. A corollary point is that the UDHR did not actually mark the ultimate triumph of human rights, but rather was an aspirational moment in which drafters vaguely gestured to a postwar ideal that most signatories promptly ignored.
There is a lot of history here that cannot be covered in a short blog post. Historians have looked to the 1970s for the first feasible attempts to protect human rights writ large, but in the case of religious freedom transnational enforcement actually took place much earlier. While transatlantic attempts to protect Christians from Communist persecution were early examples of religious freedom advocacy, it was arguably the reductive attribution of Japanese militarism to the “bad religion” of so-called State Shintō during the Allied Occupation of Japan (1945–1952) that fostered the earliest understandings of religious freedom as a human right. (Contrary to what one might expect, the Holocaust was apparently not a major contributing factor to early postwar discussions about religious freedom as a human right.) The Allied Occupation was the first time that religious freedom was enforced transnationally through the language of human rights, meaning that understanding what was at stake for the occupiers then is crucial for assessing how claims regarding religious freedom as a human right operate today.
When the Allies occupied Japan in 1945, they had to show why Japanese religion-state relations—including an existing constitutional guarantee of religious freedom—were illegitimate and why the Allied version of religious freedom was universally applicable. This project was complicated by the fact that Occupation policymakers and personnel did not share an operative definition of religious freedom at the onset of the Occupation. The version of religious freedom that ultimately prevailed in Occupation policy downplayed Christian language of rights as “god-given,” but it nevertheless remained indebted to vaguely Protestant models that treated “real” religion as private, apolitical, and pacifist. As I have shown elsewhere, Japanese and American scholarship, policymaking, and journalism from the Occupation period created and reinforced this good religion/bad religion dichotomy while solidifying the language of religious-freedom-as-human-right.      
The simple point I want to make here is that from the earliest moment when it was enforced transnationally as a “human right,” religious freedom was designed to privilege certain religious dispositions and to delegitimize others. Echoes of this good/bad religion binary reverberate in religious freedom advocacy today. Advocates frequently underscore the importance of religious freedom by saying that it is a human right, but few actually talk about what distinguishes human rights from civil rights, and even fewer address the inequities that characterize the enforcement of human rights.      
The Enforcement Problem
Human rights are different from the civil rights granted to citizens by their states in that they are understood as innate, culturally odorless, and intrinsically superior to national law. This means that human rights only become enforceable when the international community takes notice of states failing to protect citizens from persecution (or when states themselves persecute minorities or the stateless). Human rights don’t exist because the UDHR says they do. Popular rhetoric to the contrary, human rights are not perennial. Human rights come into existence at specific moments when governmental and nongovernmental organizations intervene in the affairs of sovereign states on behalf of oppressed individuals. 
But who can police a state? If law enforcement works through the threat or actual exercise of force, which countries are required to submit to the human rights regime and which are not? It is depressingly obvious that some states can flout international human rights conventions with impunity because they are militarily powerful, while others cannot help but submit to international economic and military pressure. It is also clear that certain situations that do not garner international attention never become “human rights” issues, no matter how oppressive they may be. The international gaze and international will are prerequisites for the effective operation of human rights. To put it strongly, without publicity and without consistent and effective enforcement, human rights simply don’t exist.    
Here an advocate might argue that it was precisely this conundrum that the Oslo Charter was intended to address. However, it is not enough to say that the international community simply needs to do a better job of promoting religious freedom. Reciting the text of Article 18 of the UDHR or reiterating commitment to upholding its principles, as the parties in Oslo did, is meaningless as long as some states are given a free pass while others are held to account.         
More Scholarship for Advocates, Less Advocacy for Scholars
That is not to say that there is no way forward. The exasperation that characterizes Brown’s response to Hurd’s post is understandable. After all, don’t we all want to see a more just, equitable world? Can’t we all just agree that religious freedom is a pretty good thing that deserves protection and promotion? Here I would contend that Hurd is calling for a more just world. Justice is served and equality gained when religious freedom advocates recognize the problems with their solutions, adjust for them, and move forward with appropriate caution. To dismiss academic gadflies as obstructionists without taking their (our) criticisms seriously is to potentially abrogate one’s responsibility to think through whether IRF is premised on its own forms of coercion.  
Of course, the responsibility cuts both ways. Those of us who question the motives and outcomes of the IRF project probably have an obligation to advance workable alternatives rather than simply naysaying the efforts of well-intentioned advocates. One way to do this is to offer our academic expertise in the service of fostering better understanding between government officials, religious groups, and rights campaigners. 
But there is a double bind for academics that may not be immediately transparent to activists. When mobilized in the service of IRF activism, counterterrorism, or diplomacy, academic expertise can reify religious identities while also concretizing notions of “legitimate” and “illegitimate” religion in ways that we do not intend. In the face of this ethical conundrum, many of us are chary of allowing our scholarship to be “operationalized” more than it already is. 
So if scholarly contributions to the conversations about IRF seem to be phrased almost exclusively in the negative, it is probably because we feel that we can have the most meaningful impact by inviting religious freedom advocates to question their deeply held presuppositions before they move forward. This is most emphatically not a call for human rights campaigners to abandon their searches for solutions to the problem of oppression, but rather a hope that they might ask themselves whether the freedom they champion is as universal as they want to claim.     
Jolyon Thomas is an A.W. Mellon Postdoctoral Fellow in the Humanities at the University of Wisconsin-Madison. His is currently working on a book that critically examines prewar Japanese religion-state relations and the geopolitics of religious freedom during the Allied Occupation of Japan.  
By Jolyon Thomas
Published Dec. 11, 2014 5:07 PM - Last modified June 15, 2015 10:20 AM