Interview credit: Talk About: Law and Religion (Elizabeth A. Clark and Dmytro Vovk)
Dmytro Vovk: The freedom of religion or belief (FoRB) and gender equality problematic is very politicized, often in different directions. Some countries use FoRB language to criticize human rights and gender equality as concepts; others focus international efforts on gender equality while deemphasizing FoRB; and yet other countries invest significant recourses in the advancement of gender equality or FoRB abroad while achieving less impressive results on the domestic level. How does this politicization affect international human rights law?
Nazila Ghanea: What I would say is that how you approach this and how much of a problem one sees in it depends on one’s framework. To be honest, I have never considered a clash between freedom of religion or belief and gender equality from an international human rights law framework. The linchpin of this has to be Article 5 of the International Covenant on Civil and Political Rights (ICCPR) that tells us no right can be used to extinguish or violate another right; therefore, they are all coexisting, interrelated, and reinforcing. Thus, we must consider human rights in parallel and in a mutually enriching manner.
What we do have in freedom of religion or belief, as in a number of other rights, are, of course, the limitation grounds. But even those grounds need to be strictly interpreted. In its General Comment 22, the Human Rights Committee is very clear that any limitation must be established in law and must be only on the grounds that are stated. In addition, both General Comment 22 and General Comment 34 state that these limitations must be nondiscriminatory.
What I have also tried to bring into very clear focus since the very early days of taking over the mandate is that there are three dimensions of freedom of religion or belief that are very well established in the UN Special Rapporteur on FoRB’s mandate practice of 36 years and in international law. The first dimension is that we have freedom of religion or belief itself as upheld, for example, in Article 18 of the ICCPR. The second dimension is that there can be no discrimination, inter alia, on the grounds of religion or belief. But the third dimension is that this freedom cannot justify violations of other human rights. This approach is sketched out, although in a very short form, in the statement dedicated to the International Day to Commemorate the Victims of Acts of Violence Based on Religion or Belief, by UN Experts and the Special Advisor of the Secretary-General on the Prevention of Genocide. It speaks volumes that 57 mandate holders have signed it and supported it.
Elizabeth A. Clark: I appreciate the way you tried to disentangle those issues; they certainly get conflated in the public mind. In principle, it’s easy to see that human rights are noncompetitive and mutually reinforcing, which is a really useful, attractive way of looking at it. But how can it work practically when FoRB–based claims and claims based on the right to nondiscrimination are sometimes mutually exclusive? For example, one can’t protect both the right of LGBTQ students to establish their own club and the right of a religiously-affiliated university not to recognize it.
NG: What is clear in principle to say is that international human rights law requires that we advance all these rights simultaneously in parallel with one another. But none of that means they will not be used in order to set them up against one another or that they will not be politicized. Obviously, we find that they are politicized, not least at times of elections or party politics. There are even attempts to suggest that even in principle one right should be championed above the other. I do not think that human rights law accepts the approach that one right is given a greater emphasis or there is a hierarchy among human rights.
But is it possible that they clash or they find themselves set against each other in a particular case? Well, absolutely! The determination of such cases rests on the facts and the specifics of the case and should judged by an independent court of law, in a nondiscriminatory manner and with equality before the law for all parties. We should not then then generalize from the outcome of such a case and say that there is a necessary clash between these rights or that one of those rights can extinguish the other.
There are even attempts to suggest that even in principle one right should be championed above the other. I do not think that human rights law accepts the approach that one right is given a greater emphasis or there is a hierarchy among human rights.
There are some difficult questions here. If we look at case law, for example, in England and Wales, what creates a point of challenge in particular cases is whether religious manifestation is a public sector duty, a public service that is being carried out. We cannot have the expectation that others will practice religion in accordance with our religion or belief. Manifestations draw from a free conscientious choice to respect certain religious or belief observances and obligations. In a recent article for the Emory Law Journal, I suggested that we need to give more attention to this nexus between having, adopting, and changing religion or belief and manifesting religion or belief.
DV: Let’s turn to the actors working in the field. FoRB defenders and women’s organizations are traditionally suspicious of each other. The former suspects the latter of being hostile towards religion and religious people, while the latter blame the former for advancing religion itself rather than religious freedom as a human right. That being said, do you see any room for their collaboration for advancing both rights in a noncompetitive manner? Are there any positive examples of their collaboration?
NG: In the past five or six years I have seen many more examples of collaborations and efforts to bring these communities together and to recognize the common advocacy causes and grounds where they can cooperate. Pertinent examples of this include personal status law, which has a minority dimension, a freedom of religion or belief dimension, and a gender dimension. (For instance, nationality passing through the mother is something that is denied in many parts of the world.) Among other issues are interfaith marriage, which is prohibited in many parts of the world; custody; divorce; and other related civil rights.
In trainings within ministries there has been a number of examples where the training has included freedom of religion or belief and gender rights. This has overcome previous situations where ministries may have been divided around this issue; some championing gender equality while others uphold freedom of religion or belief. It has taken courage to advance human rights training that addresses both rights.
It is not only human rights [controversies] that have provoked these communities into being hostile to one another. The CEDAW Convention emerged in a specific time and context as a convention to chart new territory and to be very strident regarding the need to overcome all barriers and to advance the rights of women and girls. One of the barriers that was constantly put in front of women’s rights advocates around the world as an obstacle was the “religion” card. We have clarity in legal norms that both rights coincide and reinforce each other. But from the perception of grassroots women’s rights advocates, it is understandable that for some “religion” was merely taken as an obstacle that needed to be overcome to advance CEDAW rights.
In trainings within ministries there has been a number of examples where the training has included freedom of religion or belief and gender rights. This has overcome previous situations where ministries may have been divided around this issue.
In recent years, however, there has been a transformative shift in understanding, including by UN Women, that freedom of religion or belief is a right that women, as well as other persons have, which can be positively engaged and used to advance the objectives and activities of UN Women and other organizations. Certainly, we cannot rest on our laurels and say that this has been well understood at the grassroots. Every time this issue is politicized or used as an electoral tool, then it refreshes the challenge. But we now have many examples of cooperation and many NGOs and shadow reports tackling this.
One example I’d like to mention specifically is the “Faith for Rights” initiative that has emerged over the last five years. It recognizes that in many instances of human rights advocacy and in different cases and jurisprudence, ‘religion’ has come up as a justification for restricting rights. But faith-based actors have also been champions and defenders of human rights. They have and can play a critical role in advancing not only freedom of religion or belief or women’s rights but all human rights. The Faith for Rights 18 commitments are one way of promoting this.
EAC: This flows into my next question. We often think about those advocating women’s rights and those advocating for freedom of religion or belief, but sometimes those who get lost in the picture are women of faith. What about them? Sometimes it looks like they are in a sort of “blind zone.” FoRB defenders, especially in non-Western societies, do not pay much attention to gender problematic (and often are not really aware of international standards in this field), while some feminist organizations are inclined to think of religious women as supporters of the patriarchal, male-dominated structure of society, whose needs are irrelevant to the feminist agenda.
The women’s rights movement observed in the scholarship some decades ago that women have been invisible from the project of international law and international human rights law. Women had also been invisible in FoRB scholarship and advocacy, and “religious women” have further been invisible in both gender rights and women’s rights advocacy. So it is a double-bind situation. It rests partly on the first obstacle, that religion was being used by states as a justification to limit human rights for example through reservations against treaty obligations. On the other hand, there was an insufficient understanding of and engagement with freedom of religion or belief. It is quite timely and appropriate that we are considering women of faith.
If there are women who are wanting to uphold certain restrictions to their gender rights because they are choosing to observe a particular religion or belief, what do we do with this? Here we are considering situations that do not constitute “harmful practices” as understood in international human rights law. In feminism we recognize that all women have agency, and we should not be patronizing and silencing them. We should not deny agency to such women. Of course, there are some questions. Are they freely choosing it or being forced to? What are the implications of their choice? Are noncompliance or exit really options available to them? These need consideration on a case-by-case basis in a nuanced, context-specific way.
Women had been invisible in FoRB scholarship and advocacy, and “religious women” have further been invisible in both gender rights and women’s rights advocacy.
DV: This actually reminds me about the Leyla Şahin case. Commenting on this case, Andras Sajo, mentions, “One can have an ad hoc solution for Leyla Şahin allowing her to wear a headscarf at Istanbul University 30 years ago, but one must also consider how to protect those women in eastern Turkey who did not want to wear a headscarf. Is it possible to have a general rule in these circumstances? Or are you going to proceed with local rules for each situation? I’d naïvely say that local rules are better, but law is not about local rules.” Do you find this argument persuasive? Is it possible to protect both women wearing headscarves as a part of their religious identity and those for whom the headscarf is a symbol of their subordination to male dominance?
This is an arena that not only benefits from lawyers and human rights lawyers but also from political scientists, historians, and sociologists. The FoRB perspective is based on the recognition of women’s agency and on the context of free choice in deciding whether to wear hijab or not. It also assumes that multiple manifestations will be acceptable and achievable by women in different parts of the world; it must be possible for women to wear hijab and to not wear hijab. This necessarily means that compulsory hijab is against freedom of religion or belief.
On the practical level courts have considered questions such as: How old is the girl child? Is there a figure in the family who is imposing the wearing of the hijab or other religious symbol? Is there a figure who is likely pressuring the girl child to wear that symbol or not? Do we have any evidence that she has freely arrived at this choice? What, for example, do the school authorities or the employer do about it? Is there any particular reason why this symbol is particularly problematic in a particular context? Are there general (not discriminatory) security screenings able to be upheld?
The FoRB perspective is based on the recognition of women’s agency and on the context of free choice in deciding whether to wear hijab or not.
It again becomes heavily dependent on the facts of the case, but when courts are deciding these cases, they should be mindful of freedom of religion or belief, and the agency of the women, and see whether choice has been feasible in that context or not.
EAC: Another context where these tensions and concerns about women’s agency exist is the problem of domestic violence. What is the role of religious groups in counteracting domestic violence? We see that many churches and religious organizations across the globe oppose national and international mechanisms targeting domestic violence (think about the debates around the Council of Europe’s Istanbul Convention), while others develop policies and programs countering domestic violence and supporting victims who are mostly women and girls.
NG: When it comes to such violations, religious authorities and communities need to work hand in hand with state authorities. State authorities, however, should clearly not fabricate cases and frame communities in order to impose restrictions on minorities they already find unfavorable. I mean the state authorities should not use this for ulterior purposes or to intervene in the functioning of a religious community, which is recognized in Article 6 of the 1981 Declaration which gives an illustrative range of examples regarding manifestation of religion or belief including in community with others. Religious communities should be able to gather, teach, worship, collect funds, and be active in society. This is all within the FoRB standards.
We also have the minority rights standards, which include religious or belief minorities, which add an additional set of clear protections that pertain to them. Minorities should be involved in public life and be able to be part of discussions on any matters concerning them. The government has a positive role in advancing the survival and the functioning of, inter alia, religious or belief minorities.
If human rights defenders are divided amongst those who uphold freedom of religion or belief and those who uphold gender rights, we are weakening civil society as well as the possibility of advancing rights.
But when it comes to violence against women, there should be a healthy collaboration [between religion communities and the state]. If the religious authorities can also counsel, prevent, and educate [regarding the problem of domestic violence], this may be a unique point of access because religious associations can reinforce the attention to this problem in the language that is particularly powerful and effective for their communities of believers, as the latter may well be much more persuaded by the tenets of their faith than by quoting the law at them. Thus, each actor has its own educative, positive role for the prevention of domestic violence.
DV: FoRB and gender equality also play in employment and labor relations. Matteo Corsalini, a researcher from University of Padua, argues that both religious exemptions for “faith-based” business in the U.S. and “neutrality policies” implemented by some European business entities do not protect freedom of/from religion of their employees but rather aim to maximize profits of the owners of respective businesses, who don’t have to pay for additional contraception for their employees or are able to dismiss a hijab-wearing Muslim employee in order tosatisfy their clients’ preferences. What do you think about this?
NG: I would find it quite compelling that there may be a capitalist ambition [behind these exemptions and policies]; we should not disregard that. Sometimes we look at this purely in terms of religious autonomy, conscientious objections, and exemptions because sometimes we are too close to the issue and are apt to see everything exclusively from the FoRB perspective. It is helpful to stand back and look at wider processes at play and be mindful of that. Sometimes we have to wonder why some of these employer-employee cases cannot be addressed at source rather than leading to court cases. Why is the environment so adversarial and contentious so that everything is pushed to courts of law? Treating employees well and creating a harmonious work environment is profitable and beneficial to the retention and flourishing of staff as well as for flourishing of the business.
EAC: What is the future of FoRB and gender in international law? What new institutions, mechanisms, or initiatives do you expect to be established in the short-term or middle-term perspective?
NG: If we take it away from the macrolevel to the microlevel, then we can put a lot more attention on training that is considerate of both [FoRB and gender]—different voices being reflected in this training in order to humanize the problem. [We can] bring it down to concrete examples, so that rather than it being seen as an intrusion or threat, we can hear the other side and bring together the advocates of both rights. I think this can really help. If human rights defenders are divided amongst those who uphold freedom of religion or belief and those who uphold gender rights, we are weakening civil society as well as the possibility of advancing rights.
I hope that the number of collaborations can increase and that we can give attention, for example, to courts going down to particular cases and sharing how they were resolved, or what courts were mindful of once they arrived at particular decisions. We should take it away from the national level of politicization or international level of ‘clash’ and bring it down to far sharper legal and principled decision-making. This is relevant for courts as well because, even in the court cases that we have, courts have not been immune from pressure.