When the international human rights regime emerged in the 1940s, the right to religious liberty stood out as one of its central principles. It was one of the cornerstones in Franklin D. Roosevelt’s “Four Freedoms” address; was singled out as one of the moral objectives of war that the Allied powers declared on New Year’s Day 1942; and was incorporated into most prototypical international bills of rights elaborated by various states, international law institutes, and individual activists during the war years. Yet even if the concept of religious liberty was central in the era’s fledgling human rights discourse, it remained entirely unclear what its basic components actually were, let alone how these should be phrased in an international document. This was one of the challenges that faced the United Nations’ original Commission on Human Rights and its designated Drafting Committee. After extensive discussion, it resolved by crafting Article 18 of the Universal Declaration of Human Rights:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
As has been evident in the ensuing decades, this articulation of religious liberty permits a variety of interpretations. Article 18 never addresses the difficult questions of how the relation between states and religious institutions should be regulated; it leaves terms like “teaching,” “practice,” “worship,” and “observance” undefined; and it never clarifies under which circumstances religious liberty can and cannot be curtailed. According to Malcolm D. Evans, the nature of the drafting process anticipated many of the contemporary debates on the nature of these aspects. Although most states found it possible to endorse the Drafting Committee’s proposal, they did so with very different understandings of what it implied. Therefore, Evans concludes, “what has proven to be one of the most influential statements of religious rights of mankind yet devised entered into the international arena with no further light shed upon its meaning.”1 The implication of this argument is that Article 18 in itself is a minimalistic and unproblematic articulation of religious liberty, one which had no specific meaning in the postwar moment, just as it has no stable meaning today.
This may be a reasonable conclusion to reach from the traces of the drafting process that we encounter in the official meeting records of the United Nations. These give the impression of a hasty debate in which many different positions were voiced but generally without thorough explanation. But if we go beyond the official records and place this articulation of religious liberty in a broader intellectual and political context, a different picture emerges. By following some of the main actors who were involved in shaping Article 18, this essay will suggest that its primary components—its stress on the inner dimensions of conscience and belief, as well as the right to change one’s religion—reflected very particular political and intellectual currents in the postwar moment. Article 18 was not the result of some abstract overlapping consensus but rather a triumph for a few actors to whom its details mattered.
This essay is divided into three historical sections: the first deals not so much with Article 18 per se as with the expunction of minority rights from the UDHR. This decision, which was driven by the United States and France, meant that all institutional aspects of religious liberty were exorcised from the document; it essentially paved the way for a conceptualization of the term that centered on the religious and existential choice of the individual person. The second section traces the impact of personalism in the shaping of Article 18. Through the groundbreaking work of Marco Duranti and Samuel Moyn, this heterogeneous intellectual current has been portrayed as the main vehicle for the language of human rights in the immediate postwar era.2 Section two seeks to contribute to this new historiography by arguing that one of the really lasting impacts of personalism on the international human rights regime is the fundamental distinction between absolute liberty of conscience and the qualified liberty to “manifest” one’s religion or beliefs. The third section of this essay then turns to the controversies surrounding the right to change one’s religion. This right made its way to the final text largely due to the interventions of representatives of the international ecumenical movement with reference to encounters between Christian missionaries and what they called “Islamic severity” in the Middle East.
The conclusion of this essay suggests that what these actors did was subtly but importantly to transform the way religious liberty was framed in international affairs. The minority rights treaties of the League of Nations and the prototypical bills of human rights that emerged in the thirties and forties all focused on tangible dimensions of religious life: the “free exercise” of any creed; the “freedom of worship”; as well as the right to establish and maintain faith schools and other religious institutions. None of these documents gave particular attention to the inner dimensions of conscience or spelled out protection for the person’s religious choice. These were aspects that Article 18 in the UDHR inaugurated, and which the identical articula-dtion of religious liberty in Article 9 of the European Convention of Human Rights fortified.
The End of Institutional Religious Liberty
The original draft version of the Universal Declaration, which was prepared by the UN Secretariat in 1947, contained not one article with direct relevance for religious liberty but two. The second article, Article 46, had been copied from the British international lawyer Hersch Lauterpacht’s self-styled International Bill of the Rights of Man from 1945. Its elements were nonetheless familiar to diplomats and scholars of international law at the time. What Lauterpacht had done was essentially to merge the central components of the League of Nations’ minority rights treaties into a single article:
In States inhabited by a substantial number of persons of a race, language or religion other than those of the majority of the population, persons belonging to such ethnic, linguistic or religious minorities shall have the rights as far as compatible with public order to establish and maintain their schools and cultural or religious institutions, and to use their own language in the press, in public assembly and before the courts and other authorities of the State.3
The rationale behind this particular article, Lauterpacht explained, was a fundamental concern with the right to equality. He argued that “true equality” cannot be reduced to equal opportunities between individuals but essentially concerns the relation between a nation’s majority and its minorities. In Lauterpacht’s view, this relation could never be considered equal if a minority “were deprived of its own institutions,” which would compel it to “renounce that which constitutes the very essence of its being as a minority.”4
In spite of the initial support that several delegates proclaimed for the article, and in spite of attempts to revive it during the final negotiations in 1948, the General Assembly eventually declared that because of the delicacy of the issue, “which has special aspects in each State in which it arises,” there would be no reference to minority rights in the Declaration.5 There are different accounts as to why this happened. According to Johannes Morsink’s detailed analysis of the drafting process, early support began to waver in 1947 when the General Assembly, in a parallel process, decided to omit the crime of “cultural genocide” from the Genocide Convention (a concept that had broadened the definition of genocide to include acts committed with the intention of destroying a group’s “language, religion or culture” and not just the group as such). “If not there, then not here either” was the logic that the members of the drafting committee seemed to follow. The main factor that Morsink isolates is nonetheless that the minority rights article lacked an organized lobby. The efforts of the Soviet Union, Yugoslavia, and Denmark to resurrect the original Article 46 during the last stages of the drafting were desperate and ill-coordinated and did not convince potentially undecided voters.6
From a more general standpoint, Mark Mazower has famously argued that the reason for which human rights became politically appealing in the first place was that they promised to function as an antidote to the dysfunctional minority rights system of the League of Nations. This system, which had been established as part of the peace of 1919, was made up of international treaties between the Allied powers and the new and reformed states of Eastern and Central Europe, in which the latter promised certain rights to members of minority populations in exchange for international recognition. But mainly due to the way the Nazi regime exploited the situation of German minorities in foreign territories as carte blanche for its expansionist policies, the entire notion of granting certain rights to “disloyal” minority populations became highly discredited after the war. In contrast to the paternalistic system of minority treaties, the new doctrine of individual human rights could boast universal significance, and in the shape of a nonbinding moral standard of achievement it also appeared less threatening to the protection of state sovereignty and national cohesion.7 This notion of a broader shift from “minority rights” to “human rights” in international affairs provides some insight into why Article 46 was deleted. But the picture becomes more complex when we consider the political agendas of the two actors who led the opposition against it: René Cassin and Eleanor Roosevelt.
Cassin clearly viewed minority rights and human rights as incompatible concepts and construed the shift from the one to the other in evolutionary terms. Whereas the interwar treaties “had envisaged sponsoring only the protection of certain categories of men,” he maintained, the new bill set out “to protect the whole man and to protect the rights of all men.”8 As Glenda Sluga points out in her recent work on Cassin’s political trajectory in the human rights field, this commitment to the universality of the rights of man was also intimately bound up with his defense of imperial France. During the war and the immediate years thereafter, Cassin insisted on allowing subjects scattered across the empire to “seek political convergence as French citizens and patriots” but opposed the idea of decolonization. He feared that such geopolitical transformations might create ethnically defined states where outsiders would be reconstituted as second-class citizens.9 Cassin thus fought hard to stonewall attempts to reintroduce minority rights into the Universal Declaration. If the content of Article 46 were realized, there would be a “danger of cutting off certain communities and thereby working against the community of nations”:
Such measures might result in certain populations being unable to read any newspapers except those printed in their own tongue, and their being excluded from taking part in competitive examinations for official posts or in the active life of the nation; thus, a whole category of persons, whose emancipation was being sought would instead be cut off from their surroundings.10
Another dimension to Cassin’s opposition to minority rights was his own secular Jewish identity, which in 1943 translated into political action when he was appointed chairman of the Alliance Israélite Universelle. Since its inception in 1860, the Alliance had presented itself as a platform for “fortunate Jews” to help “to work everywhere for the emancipation and moral progress of the Jews; [and] to offer effective assistance to Jews suffering from antisemitism.” Its principal strategy to achieve these aims was to teach Jews to act as useful citizens and thereby earn their own emancipation. To facilitate this process, the Alliance set up a transnational network of secular Jewish schools (not least in the Balkans and the Middle East).11 The strong emphasis on the French language in the curricula of these schools bears witness to the intimate ties between the Alliance and the French empire. Its struggle for Jewish emancipation was from the beginning equated with the resurrection of French republican ideals, and as André Chouraqui argues in his in-house history of the organization, no one represented this conflation between Jewish emancipation and French republican ideals more perfectly than the statesman, lawyer, and humanist René Cassin.12 In the words of one of his biographers: “The mission of René Cassin is not to save the Jews of France, but to save France so that she herself saves the Jews.”13
The relation between the Alliance and the emergence of international human rights is an interesting but still largely unexplored area. Moria Paz argues that it is hard to overestimate the importance of the Alliance in the development of the international protection of human rights. During the Congress of Berlin in 1878, it successfully pushed for a ban of discrimination on the basis of religious affiliation in the outcome document. During the Paris Peace Conference, however, the Alliance gave in to pressure from Jewish nationalist groups and reluctantly supported the idea of positive minority rights that ended up in the treaties. It did so with the belief that such rights would be beneficial for the long-term goal of emancipation: “If unmolested for about a quarter of a century,” it claimed in its memorandum to the Peace Conference, “the Jews . . . would assuredly abandon the [Yiddish] jargon in favor of the language of the country.”14 Thus, from the standpoint of the organization over which Cassin presided, the Universal Declaration’s silence on positive minority rights constituted a belated triumph of a completely individualized rights regime for which it had fought already thirty years earlier.
Eleanor Roosevelt’s battle against minority rights paralleled Cassin’s but had very different origins. During the drafting process she repeatedly insisted that minorities “did not exist as such in the United States” and that her government instead practiced a policy of cultural assimilation. Moreover, since the problem of minorities was “not of universal significance,” it would be a contradiction in terms to incorporate minority rights into a universal document.15 Roosevelt’s statements are perhaps best read as an echo of what Carol Anderson has called the American government’s “semantic legerdemain” on the issue of minorities during the lead-in to the Cold War. In 1947 the NAACP submitted its petition “An Appeal to the World,” which asked the UN Human Rights Commission to take action against continuous racial inequality in the United States on the basis that it constituted a “denial of human rights to minorities.” Against this backdrop, as well as the attempts of states with “competing philosophies” to exploit American “shortcomings” in this area, the State Department decided to emphasize the difference between the minorities issue in the United States and Europe.16 According to its own inquiry, there were no “national minorities” in the country, since neither African Americans, Mexican Americans, nor Native Americans sought to “secede” from the United States. Nor did any of these groups have a “distinct culture or language.” What they wanted was instead to be fully integrated into the American nation.17
Weakness in the area of minorities and racial equality constituted an immanent threat to American influence in the context of the drafting of the Universal Declaration. Roosevelt realized this and therefore worked hard to get the issue of minority rights off the table. In her correspondence with the NAACP leaders she insisted that she basically agreed with their position, but in practice she aligned herself with the official American stance that the Human Rights Commission was the wrong forum for the fight for civil rights and that attempts in this direction would only aid the Soviet Union in besmirching the reputation of the United States.
As should be evident by now, neither Cassin nor Roosevelt was expressly concerned with religion when opposing the language of minority rights in the Universal Declaration. Although all proposals of this article included protection for the institutional rights of religious minorities, these aspects were almost entirely absent from the debates that surrounded it. To some extent, the religious liberty dimensions of the proposed Article 46 were remnants of how the issue of minorities had been addressed in previous eras of European diplomacy. While the discussions on minorities in Westphalia in 1648 and Berlin in 1878 had revolved around different religious communities that disrupted the established principle of internal religious unity within states, they now centered on problems relating to race and nationality. The decision to strike all references to the rights of minorities in the Universal Declaration was, in other words, not driven by an antipathy toward religious institutions per se but a concern for what Cassin called the “society of nations.” The institutional aspects of religious liberty—in spite of their long history in European diplomacy—were effectively and unceremoniously thrown out with the bathwater.
Religious Liberty of the Human Person
Leaving the UDHR’s silence on minority rights aside, this section turns to the Declaration’s principal articulation of religious liberty: Article 18. In what follows, I will argue that one of the basic features of this articulation—the distinction between inner and external liberty—is best explained in light of the direct and indirect influences of Christian personalism on the drafting process. While many commentators of religious liberty in international human rights law see this distinction as “immutable” and “inescapable,” I will argue that it was a product of 1948 and marked a subtle rupture with how religious liberty had been articulated in the minority treaties, as well as in most of the prototypical human rights declarations of the interwar period.18
The ideological importance of personalism has until recently been absent from historical accounts of the emergence of international human rights. Samuel Moyn, whose work has sought to underscore personalism as the main “vehicle” for the human rights idea in the 1940s, sees this absence as a consequence of the prejudices that contemporary historians of human rights have brought to the field:
In early postwar Europe, human rights were—contrary to current expectations and desires—most associated with neither a revolutionary nor a republican heritage. For almost nobody were they the essence of post-Holocaust wisdom, not least since the crimes of Nazi evildoers were not yet understood to be primarily ones against the Jewish people. Finally, they were not the inspiration for a new sort of private activism, which had other and later sources. Instead, human rights need to be closely linked, in their beginnings, to an epoch-making reinvention of conservatism.19
Moyn uses the terms “personalism,” “Christian democracy,” and “conservatism” interchangeably with the awareness that they are vague ideological labels that do not correspond to any coherent school of thought. What united the various “personalisms” that were formulated during the first half of the twentieth century was a desire to find a communitarian, and often explicitly religious, third way between the “rival materialisms of liberalism and communism.” This vagueness of personalism, Moyn continues, “was, in a sense, its genius; it signaled the identity of the opposition clearly, while leaving flexibility about what the alternative program was.”20 Accordingly, there was no fixed place for human rights in any of the personalist programs, and many of its leading figures rejected the concept for its association with the very bourgeois liberalism they were trying to counteract.
One of the prolific personalists who initially avoided the human rights idea, but who later became its leading proponent and theoretician, was the Catholic philosopher Jacques Maritain. Maritain’s transformation was triggered by a number of circumstances: the tragedy of the Spanish Civil War, the escalation of anti-Semitism across continental Europe, the Vatican’s strategic embrace of rights talk, and his own encounter with American democracy during his years in exile. In a later reflection on the last of these experiences, Maritain confessed that he had been surprised to find in the United States the “least materialistic of all modern peoples which had reached the industrial age.” America was, Maritain claimed, not the tragedy of modernity perfected but rather was clearly headed in the direction of becoming the utopian society he himself envisaged in his political thinking: a society where persons of different faiths were working together for the common good in a temporal order still suffused with a Christian spirit, a society which, in Maritain’s terms, was both personnaliste and communautaire.21
There is no doubt that Maritain’s embrace of human rights was inspired by these experiences. His defense of human rights, however, is strictly philosophical and unequivocally Thomistic. He starts off by characterizing the “Natural Law” as derived from (yet distinctly different from) the “Eternal Law.” Its author is “divine reason” alone, and the human intellect has no part in establishing or decoding it. Yet divine reason “imprints its light upon human reason,” allowing the person to acquire knowledge of the Natural Law and to distinguish between good and evil through his natural inclination.22 By conforming to these inclinations, the person is able to transcend material existence and participate in the eternal order. This notion of participation is central to Maritain, since it helps him distinguish his own conceptualization of the Natural Law, with a capital N, from the lesser versions that we encounter in the works of Enlightenment philosophers like Hugo Grotius, who (as Maritain makes sure to remind us) at one point argued that natural law would still have a “degree of validity” even if “there is no God, or . . . the affairs of men are of no concern to Him.”23
The first principle of the Natural Law, to do good and avoid evil, is also Maritain’s starting point for his take on religious liberty. The first principle obliges the person not only “to act in a spirit of brotherhood” (as the Universal Declaration later held) but also to choose the right religious path. The person is morally bound by the Natural Law to realize that he is “made for God, for a life superior to time.”24 This positive liberty (to use Isaiah Berlin’s bold distinction) for the person to develop toward his final cause is also the basis for the human person’s negative liberty in relation to his fellow men and the temporal powers.25 It is in order for the person to perform his moral task, to “hearken unto God, and to make its way to Him,” that he is entitled to certain temporal freedoms:
With respect to God and truth, one has not the right to choose according to his own whim any path whatsoever; he must choose the true path, insofar as it is in his power to know it. But with respect to the State, to the temporal community and to the temporal power, he is free to choose the religious path at his own risk; his freedom of conscience is a natural, inviolable right.26
In a footnote to this passage, Maritain adds the caveat that the person’s temporal freedom of religion is restricted to the choice of religious path. The inviolable freedom of conscience does not cover the freedom to manifest one’s religious choice in a way that is contrary to the Natural Law: “If this religious path goes so very far afield that it leads to acts repugnant to natural law the security of the State, the latter has the right to interdict and apply sanctions against these acts. This does not mean that it has authority in the realm of conscience.” These passages, Maritain explicitly argued, constituted the only reasonable way of interpreting what Franklin D. Roosevelt had called man’s “freedom to worship God in his own way.” This statement had clearly resonated with the priorities of those personalists who came to embrace a language of human rights. John Courtney Murray, one of the most prolific disciples of Maritain, praised Roosevelt for recognizing that religious liberty was a right of the human person not to be free from religion but to worship God in accordance with conscience. But to Maritain and Murray, religious liberty would only become intelligible if it were set in the light of the Natural Law—and doing so would also involve a shift of focus. The liberty of worship had to be subordinated to the liberty of conscience.
It is well known that Maritain was involved with human rights work at the United Nations in the late 1940s. He participated with a chapter and a preface to UNESCO’s 1947 report on the practical justifications of human rights principles, which was compiled in tandem with the drafting of the Universal Declaration. But sometimes this was taken as proof of the fact that he exerted personal influence on the final form of the Declaration. This completely neglects how insignificant UNESCO’s report was for the political process in the UN. In fact, many members of the Human Rights Commission were unaware that it was being produced in the first place, and when they did learn about it they prohibited the report from being distributed to its members, arguing that it amounted to an attempt to interfere with the diplomatic process.27 Thus, if Maritain influenced the shape of the Universal Declaration in any way, he did so indirectly, and by proxy.
Among the core members of the Human Rights Commission, it was the Lebanese delegate Charles Malik who most strongly represented the personalist approach to human rights. He repeatedly emphasized that he did not use “the word individual but the expression human person” when referring to the subject of the rights of man.28 The personalist language in the Declaration, including the description of man as being “endowed with reason and conscience” in Article 1, are direct results of his interventions. Some delegates felt that such proclamations on human nature were superfluous and could, in fact, be interpreted as criteria for the enjoyment of rights.29 In the end, however, they were willing to go along with Malik, who insisted that his proposal merely signaled which aspects of the human person distinguished him from animals and made him eligible to certain inalienable rights.30
At an early stage in the drafting process, Malik also advanced four core principles which he wanted the drafting committee to endorse as a common basis. These stressed that the value of the “human person” trumped the desires of the group or nation to which he may belong, but also that “the human person’s most sacred and inviolable possessions are his mind and his conscience, enabling him to perceive the truth, to choose freely, and to exist.”31 Malik was provoked into crafting this list of core principles by a statement from the Yugoslavian delegate Vladislav Ribnikar, who repudiated what he saw as the individualistic and middle-class tendencies in the human rights project, arguing, “Personal freedom could only be attained through perfect harmony between the individual and the community.”32 Ribnikar’s statement convinced Malik that men no longer had any “need for protection against kings or dictators, but rather against a new form of tyranny: that exercised by the masses and by the State.”33
Malik’s fears of “the dictatorship of the masses” and “the false religion” of communism were crucial aspects for legitimizing an enunciation of religious liberty that placed emphasis on the inward and spiritual dimensions of religiosity. It was these spiritual dimensions of man’s existence—the dimension of “truth, and life, and love”—that communism negated.34 In his double capacity as ambassador to the UN and to the United States, Malik combined his work in the Human Rights Commission with attempts to establish a military alliance between Lebanon and the United States as a means of aligning his own country with the Western side in this struggle.35
But there were other dimensions besides anticommunism to Malik’s zeal for this particular articulation of religious liberty. In a 1948 article for the American Academy of Political and Social Science, he sketched his take on the basic political issues of the Middle East in the aftermath of the World War. Above all, Malik stressed the challenges that arise when the forces of modernity are “breaking into the rural tranquility,” but he also devoted a section to what he called the region’s deep “spiritual crisis”:
Religion has for the most part lost its authentic meaning; it has evaporated into casuistry, rendering its demands less difficult and its impositions less exacting; it has shifted its emphasis from faith and inwardness to rites and ceremonies. Our religious crisis is therefore this: that the birthplace of religion is no longer religious except in a derivative and external sense; the descendants of those who were granted the burden and vision of God hardly know His holy name. Our genuine Semitic religious fervour, failing to find vent for itself in authentic religious channels, frustrated in its depths by its own self-impoverishment, seeks an outlet for itself in the negative form of quasi-religious bigotry and fanaticism, and in sectarian ill will and hostility.36
To combat this widespread “bigotry,” Malik considered it imperative to work for a form of “religious renaissance” in the Middle East through which the authentic, spiritual dimensions of religious life would be revived. Although Malik did not refer explicitly to the “spiritual crisis” during the drafting of the Universal Declaration, it certainly provided an additional impetus for articulating religious liberty in a way that stressed the liberty of conscience, rather than the free exercise of religious practices.
Twenty years later, when Malik reflected on his contributions to the making of the Universal Declaration, he highlighted his involvement in the shaping of Article 18 and explained why he had considered the inner liberty of conscience so important:
In no text did I take as much anxious interest as in this text on freedom of thought, conscience and religion. What constitutes humanity more than anything else is this inward freedom which should therefore be absolutely inviolable. Hence, though I cared for every word in the Declaration, I felt that, if we should lose on this Article on freedom of conscience and religion, namely, if man’s absolute freedom were to be derogated from, in any way, even by the subtlest indirection, my interest in the remainder of the Declaration would considerably flag . . . Without the full and unimpaired right to think and believe freely, the value of these other rights pales into relative insignificance. One enjoys these other rights precisely in order to be free, and being free means nothing if it does not mean freedom to think and believe and change in your belief from the good to the better and better as the truth progressively reveals itself to you. The right to be free inwardly is the end and justification of all other rights . . . The very essence of freedom is the right to become, not the right to be.37
In this passage, Malik’s allegiance to a distinctly personalist version of religious liberty becomes apparent. The core of this principle is not the external freedom of worship or exercise but the person’s “right to become.” This signals a dynamic understanding of what religion is and of how convictions are formed. Religious manifestations are envisioned not as reflections of static creeds but of deep individual processes. But the personalistic version of religious liberty was also apolitical. The person’s process of “becoming”–takes place in his own inner citadel, which appears beyond reach of the temporal powers. This makes religious liberty a frail political good, since religious expressions could be curtailed without damaging the core of belief and conscience.
The only aspect of freedom of conscience that is specified in Article 18, and which indeed gives it a tangible dimension, is the right to change one’s religion. Malik put a lot of effort into the inclusion of this aspect, which he considered central to an understanding of religious liberty that focused on the individual person’s religious choice. But this aspect also distinguished Malik’s understanding of religious liberty from that of Maritain, who, in spite of his own conversion experience, never mentioned it in his own writings on human rights. This might point to a subtle tension between these different takes on personalism, one that merits further research. In the following section, however, I want to suggest that Malik’s struggle for the right to change one’s religion was spurred by not only his own convictions but also one of his principal allies in the drafting process: the international ecumenical movement.
The Ecumenical Movement and the Right to Change One’s Religion
The ecumenical movement’s struggle for international recognition of the right to change one’s religion did not begin in the context of the United Nations. This had for a long time been a prime concern for Christian missionary organizations in the Middle East. As Saba Mahmood notes in her important piece on this topic, for missionaries in the Ottoman Empire and their European supporters, “religious liberty meant the freedom to proselytize in the Ottoman territories and an important means for securing religious conversion.”38 But it was only with the emergence of international human rights that this was elevated to an ostensibly “universal” struggle.
The case of the British mandate for Palestine provides an interesting illustration of this transformation. In 1917, the Conference of Missionary Societies (CMS) requested of the British government that it use its presence in Palestine to repeal Ottoman restrictions on religious conversion. In 1937, this message was repeated in a memorandum on “Religious Freedom in Palestine” submitted to the Colonial Secretary. “The guarantee of freedom of conscience,” the document stated, “should explicitly include freedom of religious conversion, and those who profess conversion and desire to change their religion should keep their civil rights intact.”39 This met with little interest from the Peel Commission, which instead recommended that the future Arab and Jewish states should embrace the same form of minority rights protection as Iraq had done when it was released from mandatory control. This included protection for establishment of schools, charitable organizations, and other religious institutions, but also the autonomy to set up religious courts with jurisdiction over family law and issues of personal status. In essence, this was merely a way of repackaging the British updated version of the Ottoman millet system in the contemporary language of minority protection.40
In 1947, British Protestants tried to convince the United Nations Special Committee for Palestine (UNSCOP) of the necessity of including this right in the Partition Plan for Palestine. W. H. Stewart (bishop, Church of England in Jerusalem) and W. Clark-Kerr (moderator, Church of Scotland in Jerusalem) summed up the “Christian interests” in the country with the motto “Shrines and Souls”: the protection of religious sites and the protection of religious liberty. The term “Shrines” not only included a few buildings in Jerusalem, Nazareth, and Bethlehem but encompassed the entire territory, its history and “atmosphere.” The churches had noted with dismay a tendency toward “corruption of atmosphere,” a “secularization of sacred things and of sacred places.” The reason for this deterioration, they argued, was the government’s commitment to religious neutrality, which in fact had been exaggerated to the point that it worked against the interests of Christianity.41
After this general concern for the Holy Land, Stewart and Clark-Kerr continued with the dimension of “religious liberty” which they equated with the term “souls.” When characterizing this liberty, Stewart emphasized that its most central aspect was the right to change one’s religion: “We have emphasized, perhaps somewhat severely, what we regard to be really the lack of true religious freedom in this country, particularly when religious freedom is interpreted, and we hold it should be, to allow freedom of conversion from one faith to another.”42 But once again, the Protestants’ conceptualization of religious liberty was disregarded. The Partition Plan dedicated two chapters to prescribing the organization of religious life in the successor states of the Mandate. Even if this included a general declaration of the “freedom of conscience and the free exercise of all forms of worship,” the central message was that the states should uphold the system of allowing far-reaching autonomy to religious communities in the realms of family law and education.43 Thus, even if the institutional aspects of religious liberty were excluded from religious liberty in the Universal Declaration, it was entirely possible for the members of the General Assembly to accentuate the very same aspects when dealing with the specific context of Palestine.
The ecumenical engagement with international human rights took off in the early 1940s when the American Federal Council of Churches (FCC) and Foreign Mission Council (FMC) set up a Joint Committee on Religious Liberty (JCRL). The explicit aim of this group was to work for an international charter of human rights that would have “a satisfactory place for the protection of religion and conscience” within it. For this purpose, the Committee’s first undertaking was to craft a “brief and clear formulation of what religious liberty actually means.”44 This resulted in a “Statement on Religious Liberty” that was distributed to the Roosevelt administration, to members of the American Congress, to heads of diplomatic missions in the United States, and to a wide range of church organizations in the United States and abroad.45 The core paragraph of the Statement suggested an interpretation of religious liberty in line with the interests of JCRL’s mother organizations:
Religious liberty shall be interpreted to include freedom to worship according to conscience and to bring up children in the faith of their parents; freedom for the individual to change his religion; freedom to preach, educate, publish, and carry on missionary activities; and freedom to organize with others, and to acquire and hold property, for these purposes.46
The Statement was followed by a series of memoranda that developed some of the principles in the Statement (i.e., the intimate connection between religious liberty and civil rights) and pointed out certain “ways in which [the Statement] may be used by our government.” The series concluded with a memorandum that deplored the absence of a designated human rights bureau in the Dumbarton Oaks proposal for the shape of the United Nations.47 During the negotiations on the UN Charter in San Francisco, JCRL’s front man O. Frederick Nolde was also named an associate of the FCC’s advisory group to the U.S. delegation, with a special responsibility for advancing the human rights cause. In this capacity, he was able to establish a consensus in the American NGO group on the need for laying stress on the language of human rights in the Charter, not least through the establishment of a designated Human Rights Commission. The American delegation took notice and was joined by other sponsoring powers in pushing for explicit mention of such a Commission in Article 68 of the Charter.48 Even if religious liberty was the principal mission of the JCRL, this soon became inseparable from its exertion for international human rights in general.
When the Commission eventually came to life and began its work drawing up an international bill of human rights, Nolde reappeared in the UN corridors as director of the Churches’ Commission of International Affairs (CCIA), the diplomatic branch of the nascent World Council of Churches. In this capacity he attended almost every session of the Commission and established professional relationships with most of the delegation (apart from the Russians). Although he closely monitored all of the Commission’s work, his primary concern was of course the article on religious liberty. Here he made several significant contributions, not least by helping to secure the right to change one’s religion but also by pinpointing four categories of manifestation: worship, practice, teaching, and observance. This made one of the core members of the Drafting Committee conclude that Article 18 was indeed “principally his fashioning.”49
But Nolde’s was not the brain behind the JCRL’s struggle for international religious liberty. The political background to this work becomes more fully discernible if we examine the most intellectually ambitious of JCRL’s activities: Religious Liberty: An Inquiry, compiled by the Baptist missionary and layman Searle Bates in 1945. Stretching over a good six hundred pages, Religious Liberty set out not only to examine the status of religious liberty in all corners of the world but also to provide an overview of the principle’s historical evolution, philosophical and religious ways of justifying it, as well as a discussion of different problems relating to its articulation. Religious Liberty contains an extensive philosophical section which betrays the impact of personalist human rights language on Protestants as well. Bates employs Maritain’s work as proof of the possibility of rapprochement between Catholic and Protestant thought on religious liberty. Bates refers to Maritain no less than twelve times over the course of the book, describing him as the philosopher of late who had most successfully spelled out “in the light of Christian faith and in the experience of modern and contemporary society, a right relation of Church and State.”50
In some passages, Bates also adheres closely to Maritain’s conceptualization of religious liberty as a protection of the human person’s moral responsibility to reach God. This is not least apparent in Bates’s own attempt to spell out the core principle of religious liberty: “Rooted deeply in the moral freedom to choose among good courses, where inferior courses are also possible, religious liberty may be defined as actualized opportunity for individuals and groups to pursue high spiritual aims.”51 Even so, it is evident from the book that the ecumenical movement’s engagement with religious liberty originated in a concern for very particular political situations. When identifying these in the opening chapters of Religious Liberty, Bates (like most human rights activists at the end of the war) did not turn to the recent mass murder of Jews in Nazi Germany. Instead, he found the most acute denials of religious liberty in Soviet Russia, Franco’s Spain, and in the “Moslem Countries.” The latter of these three examples recurs throughout his book as a straw man that helps to define religious liberty by way of negation: “Orthodox Islam is the contrary on religious liberty and finds no room for the concept as developed in Western lands. In principle it forbids apostasy under dire penalty and provides for change of faith only toward Islam.”52 In Bates’s hands, even a presumably positive concept in Islamic legal tradition like ‘Ahl al-Kita;amb (peoples of the book) is turned into a proof of Islam’s incompatibility with the Western tradition of religious liberty:
Historically established “religions of the book,” notably Christianity and Judaism, are allowed to continue in quiescent communities, on sufferance, so long as they do not challenge in the slightest manner the dominant Islamic society. Even they are under stronger pressure than the people of other lands can readily understand. Hundreds of Copts in Egypt turn each year to Islam for economic or for matrimonial reasons.53
In a later passage, Bates once again confirmed that the ecumenical movement’s early efforts to specify the necessary components of religious liberty had been made in light of “the socio-religious-political pressures for uniformity in the Mohammedan societies.”54 Thus the stress on the freedom of religious choice and the freedom to change was not derived from an abstract notion of what religious liberty is but rather stemmed from tangible concerns voiced by missionary organizations. By having this component of religious liberty recognized as a universal human right, they sought international legitimacy for those forces that worked to transform the political and religious landscapes of “Mohammedan societies.”
As the General Assembly’s Third Committee convened in the Parisian winter of 1948 to finalize the Declaration, the freedom to change one’s religion was the only aspect of article 18 that generated controversy. Above all, this criticism was voiced by states with predominantly Muslim populations, but not in reference to the ban on apostasy in Islamic law. It was not so much the substantial right to change one’s beliefs that upset delegations like Saudi Arabia (its representatives even recognized this right to be implied in the liberty of conscience) as the imperial and evangelical connotations that it triggered. In their rhetoric, these opponents of the right to change focused on how Christian missionaries throughout history had abused the invocation of such rights to stir up religious emotions and pave the way for political interventions. The opposition of some Middle Eastern states to Article 18 was, in other words, not so much a repudiation of religious liberty as an abstract political concept but a response to an active provocation.55 Interestingly, the only delegate to refer explicitly to Islam in this context, the Pakistani Zafrullah Khan, did so while soliciting his country’s support for the Article. After lengthy consultations with Malik, which included intensive study of the Quran, he reached the conclusion that full freedom of religious choice best captured the core of Islam. “Apostasy, by itself,” he later explained, “however condemnable is a spiritual offense and entails no temporal penalty. This is the essence of the freedom to change one’s religion. The Quran is explicit on it.”56
Article 18 of the Universal Declaration was not a self-evident articulation of religious liberty. On the contrary, it marked an important departure from how this principle had previously been defined in international fora. In the Berlin Treaty of 1878 and the minority treaties that emanated from the Paris Peace Conference in 1919, religious liberty had primarily been construed as a negative obligation of states to respect the “free exercise of religion.” This formula was also incorporated into the draft bill of international human rights that the Institute de droit internationale proposed in 1929. In keeping with FDR’s “Four Freedoms” address, the American Law Institute’s 1944 Statement on Essential Human Rights proposed that religious liberty be spelled out as the duty of states to protect the “freedom of belief and of worship.” Neither of these enunciations explicitly linked religious liberty to the freedom of “thought” or “conscience.” In this regard, Article 18 marked a subtle but distinct change of tone.
This was a politically motivated departure. For personalists like Maritain and Malik, liberty of conscience was a far more forceful version of religious liberty than freedom of worship. In fact, the freedom of worship had been recognized by the Soviet Constitution of 1936, which to many observers proved just how politically ineffective this articulation of religious liberty was. Explicit connection to liberty of conscience signaled that religious liberty was an antimaterialist political good: it constituted a safeguard for the individual person’s ethical responsibility to choose God. Therefore, it also provided protection for religion itself, not just a limited category of religious practices. But it was not only communism that this version of religious liberty was taken to discredit. Malik also hoped that the globalization of liberty of conscience would stimulate a surge of religious authenticity in the Middle East, “the birthplace of religion,” which in his view had been corrupted by “quasi-religious bigotry and fanaticism.” In a similar way, the ecumenical movement’s quest to advance a version of religious liberty that centered on the freedom to change one’s religion fed into the struggle of Christian missionaries to transform the political and religious landscape of the Middle East. It was, in short, its instrumentality that made religious liberty so attractive: it was not merely an inherent feature of a just society; it also promised to aid the dissemination and revival of Christianity as such.
It is beyond doubt that religious liberty has acquired a very different meaning since Article 18 was formulated. Above all, the relationship between religious liberty and secularism has been turned upside-down. In 1948, religious liberty was envisioned as a first line of defense for Christianity against the dangers of secularism. Today, it is more often construed as one of the defining features of liberal secularist programs. Even international human rights institutions like the European Court of Human Rights have declared that political secularisms (e.g., Turkish and French laicism) are in line with how it understands religious liberty (although the Court’s consistency in this regard is highly questionable).57
Even as the legacy of 1948 does not determine how we understand religious liberty today, it is too simplistic to dismiss Article 18 as an empty vessel. This particular expression of religious liberty includes elements that make us inclined to classify certain situations as violations of religious liberty while neutralizing others. This is most apparent when it comes to the hierarchical distinction between internal and external freedom. In some of the more recent case law of the European Court of Human Rights, it has been evident that this distinction helps to de-dramatize certain curtailments of religious practices. When elaborating on its understanding of religious liberty in S;alahin v. Turkey, the Court reaffirmed that this right is “primarily a matter of individual conscience” and “does not protect every act motivated or inspired by a religion or belief.” From this basic premise, it could effectively frame the Turkish ban on the wearing of the hijab as a minor restriction of religious liberty, which left the core of free conscience and belief untouched.58 Moreover, as Elizabeth Shakman Hurd argues, different articulations of religious liberty also govern different forms of subjectivity: “Inasmuch as the protection of religious freedom hinges upon, and even sanctifies, a religious psychology that relies on the notion of an autonomous subject who chooses beliefs, and then enacts them, such projects privilege particular kinds of religious subjectivity while disabling others.”59 In other words, Article 18 defines not only the boundaries within which a subject may act but also what it means to be an authentic subject in the first place. From this perspective, the distinction between inner and external liberty once again becomes problematic. It not only helps to define religious liberty but offers an implicit definition of authentic religion as well.
However, as this essay has shown, there is no reason to claim that Article 18 is a natural articulation of what religious liberty really is. It is only one of many expressions available in the Western tradition, just as it was only one of many versions in circulation during the postwar moment. Its triumph was the work of a few actors for whom this version of religious liberty formed the heart of what human rights were in 1948. It was a product of persistence, not consensus. During the final negotiations in the General Assembly, the Cuban delegate Guy Pérez Cisneros summed up the opinion of those states that gave in to these efforts. Article 18 was, in his view, “among those which had been least well drafted by the Commission on Human Rights. It began with a phrase which meant nothing, as it stated a right which was evident, which existed a priori and which need not be defended.” Furthermore, it “placed too much emphasis on the individual’s right to change his religion.” In spite of this general disapproval, Pérez Cisneros announced that his delegation had decided not to pick a fight, but instead to support Article 18 “in a spirit of conciliation.”60
I would like to thank Andrea Karlsson, Jesper Svartvik, Lena Halldenius, Anthony Fiscella, Elena Namli, Dan-Erik Andersson, and Kjell-Aåke Modéer for their comments on earlier drafts of this essay, as well as the editors and anonymous reviewers at Humanity for their thoughtful suggestions.
1. Malcolm D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 191–92.
2. See above all Samuel Moyn, “Personalism, Community, and the Origins of Human Rights,” in Human Rights in the Twentieth Century, ed. Stefan-Ludwig Hoffmann (Cambridge: Cambridge University Press, 2010), 85–106; and Marco Duranti, “The Holocaust, the Legacy of 1789 and the Birth of International Human Rights Law: Revisiting the Foundation Myth,” Journal of Genocide Research 14, no. 2 (2012): 159–86.
3. E/CN.4/AC.1/3, Article 46. Cf. Hersch Lauterpacht, An International Bill of the Rights of Man (New York: Columbia University Press, 1945), 151.
4. Hersch Lauterpacht, International Law and Human Rights (New York: Praeger, 1950), 353. For a lucid account of Lauterpacht’s intellectual trajectory and a clear-sighted critique of International Law and Human Rights, see Martii Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2002), 353–412.
6. Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 273–74, 377 n. 44.
7. Mark Mazower, “The Strange Triumph of Human Rights, 1933–1950,” Historical Journal 47, no. 2 (2004): 379–98; Mazower, “Minorities and the League of Nations in Interwar Europe,” Daedalus 126, no. 2 (1997): 47–63; Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, N.J.: Princeton University Press, 2009), 104–48.
8. René Cassin, La charte des droits de l’homme: Conférence Nobel (Stockholm: Norstedt, 1969).
9. Glenda Sluga, “René Cassin: Les droits de l’homme and the Universality of Human Rights, 1945–1966,” in Hoffmann, ed., Human Rights in the Twentieth Century, 111–12. Cf. Marc Agi, “De l’idée d’universalité comme fondatrice du concept des droits de l’homme d’après la vie et l’œuvre de René Cassin” (Ph.D. diss., Université de Nice, 1980); Jay Winter, Dreams of Peace and Freedom: Utopian Moments in the Twentieth Century (New Haven, Conn.: Yale University Press, 2006), 99–120.
10. A/C.3/SR.161, 723.
11. Simon Schwarzfuchs and Frances Malino, “Alliance Israelite Universelle,” in Encyclopaedia Judaica, ed. Michael Berenbaum and Fred Skolnik (Detroit: Macmillan Reference USA, 2007), 671–75.
12. André Chouraqui, L’Alliance Israélite Universelle et la renaissance juive contemporaine: Cent ans d’histoire (1860–1960) (Paris: Presses Universitaires de France, 1965), 291.
13. Marc Agi, René Cassin: Fantassin de droits de l’homme (Paris: Plon, 1979), 131.
14. Moria Paz, “A Non-Territorial Ethnic Network and the Making of Human Rights Law: The Case of the Alliance Israelite Universelle,” Interdisciplinary Journal of Human Rights Law 4, no. 1 (2009): 1–24. For a definite account of Jewish diplomacy and minority rights in Versailles, see Carole Fink, Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878–1938 (Cambridge: Cambridge University Press), 2004.
15. A/C.3/SR.161, 726. Cf. E/CN.4/SR.32, 4.
16. “To Secure These Rights: The Report of the President’s Committee on Civil Rights” (Washington: GPO, 1947).
17. Carol Anderson, Eyes Off the Prize: The United Nations and the African-American Struggle for Human Rights, 1945–1955 (Cambridge: Cambridge University Press, 2003), 74–76.
18. Paul M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005), 19; Martin Scheinin, “Article 18,” in The Universal Declaration of Human Rights: A Common Standard of Achievement, ed. Gudmundur Alfredsson and Asbjørn Eide (The Hague: Nijhoff, 1999), 379–92.
19. Moyn, “Personalism,” 87.
20. Ibid., 88.
21. Jacques Maritain, Reflections on America (New York: Scribner, 1958).
22. A note on gender: I follow Maritain’s (and other personalists’) consistent use of the masculine pronoun when referring to both the human person and God.
23. Jacques Maritain, Natural Law: Reflections on Theory and Practice, ed. William Sweet (South Bend, Ind.: St. Augustine’s Press, 2001), 40–47; Hugo Grotius, On the Law of War and Peace (1625), prolegomena, §11.
24. Maritain, Natural Law, 77.
25. Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (Oxford: Oxford University Press, 1969), 118–72. For a critical analysis of Berlin’s distinction: Lena Halldenius, Liberty Revisited: A Historical and Systematic Account of an Egalitarian Conception of Liberty and Legitimacy (Lund: Bokbox Publications, 2001).
26. Jacques Maritain, Les droits de l’homme et la loi naturelle (Paris: Hartmann, 1945), 79.
27. E/CN.4/SR.26, 12.
28. E/CN.4/SR.14, 6.
29. Morsink, Universal Declaration of Human Rights, 297.
30. Glenn Mitoma, “Charles H. Malik and Human Rights: Notes on a Biography,” Biography 33, no. 1 (2010): 222–41.
31. E/CN.4/SR.14, 3–4.
32. E/CN.4/SR.8, 4.
33. E/CN.4/SR.9, 3.
34. Charles Habib Malik, Man in the Struggle for Peace (New York: Harper and Row, 1963), 228.
35. Fawwaz Traboulsi, A History of Modern Lebanon (London: Pluto, 2007), 134, 267.
36. Charles Habib Malik, “The Basic Issues of the Near East,” Annals of the American Academy of Political and Social Science 258, no. 1 (1948): 3.
37. Charles Habib Malik, “The Universal Declaration of Human Rights,” in Free and Equal: Human Rights in Ecumenical Perspective, ed. O. Frederick Nolde (Geneva: World Council of Churches, 1968), 11.
38. Saba Mahmood, “Religious Freedom, the Minority Question, and Geopolitics in the Middle East,” Comparative Studies in Society and History 54, no. 2 (2012): 418–46.
39. Laura Robson, “Church, State, and the Holy Land: British Protestant Approaches to Imperial Policy in Palestine, 1917–1948,” Journal of Imperial and Commonwealth History 39, no. 3 (2011): 465–66. See also Laura Robson, Colonialism and Christianity in Mandate Palestine (Austin: University of Texas Press, 2011).
40. Palestine Partition Commission: Report October 1938 (His Majesty’s Stationery Office, 1938), 152.
41. A/364, Add.II, 137–38. For a more thorough account of the “ambivalent friendship” between Anglican bishops in Jerusalem and the British mandatory government, see Maria Smaåberg, “Ambivalent Friendship: Anglican Conflict Handling and Education for Peace in Jerusalem, 1920–1948” (Ph.D. diss., Lund University, 2005).
42. A/364, Add II, 136.
43. United Nations General Assembly Resolution 181, 29 November 1947, chaps. 1–2.
44. Malik, “Universal Declaration of Human Rights,” 17.
45. Many commentators applauded it as a “fine and forward-looking document” but generally doubted that it would have any impact on concrete political action. See, for instance, W. E. B. Du Bois, “Prospect of a World without Race Conflict,” American Journal of Sociology 49, no. 5 (1944): 455.
46. “Statement on Religious Liberty,” adopted in 1944 by the Federal Council of Churches (April 12) and the Foreign Missions Conference (March 21).
47. “Proposals for the Establishment of a General International Organization” (Dumbarton Oaks, October 4, 1944) only mentioned “human rights and fundamental freedoms” when enumerating the general purposes of the organization in the area of economic and social cooperation.
48. Malik, “Universal Declaration of Human Rights,” 21–25.
49. Ibid., 10.
50. Searle Bates, Religious Liberty: An Inquiry (New York: International Missionary Council, 1945), 9, 41, 103–4, 197, 214, 297, 317, 322, 345, 385, 391, 404.
51. Ibid., 373.
52. Ibid., 9.
53. Ibid., 10.
54. Ibid., 305.
55. A/C.3/SR.127, 391–2, 403–4.
56. Zafrullah Khan, Islam and Human Rights (London: Islam International Publications, 1967), 117; Malik, “Universal Declaration of Human Rights,” 10, 45.
57. Samuel Moyn, “From Communist to Muslim: Religious Liberty in European Human Rights Law,” South Atlantic Quarterly, forthcoming; Peter Danchin, “Islam in the Secular Nomos of the European Court of Human Rights,” Michigan Journal of International Law 32, no. 4 (2011): 663–747.
58. Refah Partisi (No. 2) v. Turkey, 37 Eur. H. R. Rep. 1 (2003); S;alahin v. Turkey, 44 Eur. H. R. Rep. 5 (2007); Dogru v. France, App. No. 27058/05, 49 Eur. H. R. Rep. 179 (2008); Cf. Lautsi v. Italy, App. No. 30814/06 (2009) (Chamber); Lautsi v. Italy, App. No. 30814/06 (2011) (Grand Chamber).
59. Elizabeth Shakman Hurd, “Believing in Religious Freedom,” Immanent Frame (2012), http://blogs.ssrc.org/tif/2012/03/01/believing-in-religious-freedom (accessed June 15, 2012).
60. A/C.3/SR.127, 404.