E/CN.4/1999/58/Add.1
page 10
of protection for minorities in the field of religion or belief, because it
would in particular act as a check on the “might is right” principle.
It would also be beneficial for the freedom of religion or belief in general,
inter alia for the reasons discussed in the specific case of the
Religious Freedom Restoration Act. These persons were also surprised
that the United States had no such law when the House of Representatives,
on 14 May 1998, and the Senate, on 9 October, had adopted a law establishing
such protection abroad. Other non-governmental representatives considered
that the legal framework was adequate, but that there were problems of
constitutional interpretation affecting the freedom of religion or belief, as
illustrated by the Smith case.
26.
The State Department representatives considered that the First Amendment
to the Constitution was a sufficient guarantee and preferable to general
legislation, which could only be the result of a compromise in the Congress,
where, moreover, minorities were by definition in a weak position. They
explained that the First Amendment constituted the general and principal legal
framework and that, under the Constitution, the Congress could not adopt a law
on religion, despite the existence of specific laws, which had however been
vetted by the Supreme Court in relation to the relevant constitutional
principles. It was also stressed that while the wording of the First
Amendment was general and might raise queries within a specific political
context, the United States' political system of separation of powers meant
there could be no doubt about the matter. Apart from the protective legal
framework offered by the Constitution, any violation in the field of religion
or belief was punishable under the criminal law. It was therefore considered
that any revision of the First Amendment would be pointless, but would on the
contrary be liable to weaken it. According to the Under-Secretary of State,
while the system of separation of religion and the State under the
Constitution was not perfect, it was preferable to have a fight between
freedoms rather than a fight over freedom.
C.
Other matters
27.
Many persons deplored the failure of the United States to ratify the
Convention on the Rights of the Child, which includes provisions on freedom of
religion or belief. We may note that 191 States have ratified this
Convention, but that they do not include Somalia and the United States of
America. This situation has been interpreted as a manifestation of
isolationism and rejection of other people, and also as an attitude revealing
a fear on the part of certain religious communities that if children were
granted too many rights, those rights might subsequently be used against the
parents.
28.
In general, it appears that international human rights law, including
treaties ratified by the United States, is seen as belonging solely to foreign
affairs and not to domestic affairs and that domestic law de facto takes
precedence over international law. As one academic said: “It partly reflects
the American sense of superiority on human rights issues. Congress thinks we
do just fine on religious liberty issues, and the rest of the world should not
be telling us how to get it right.”