The Evolution from Religious Minorities to Belief Minorities in Supranational Law

Introduction

This paper introduces and investigates some transformations that the legal category ‘religious minority’ has undergone at the international level. Towards that aim, particular emphasis will be given to religion as a legal criterion for defining ‘minority’ status. This criterion has been redefined by international institutions thanks to a new interpretation of religious freedom that is not limited to traditional religions. In so doing, the innovative concept of the binary terminology ‘religion or belief’ is incorporated in the interpretation of freedom of religion in general and of religious minority in particular. If the consolidation of the use of the binary terminology ‘religion or belief’ has represented a transformative element in the protection of religious freedom—including non-believers, atheists and agnostics—this innovation has also transformed the legal concept of religious minority. This evolutionary trajectory originates from the extension of the acronym ‘freedom of religion or belief’ (FoRB) from the general context of religious freedom to the specific context of minority rights. This transformative trajectory of religious minority constitutes the fulcrum to this study and will be explained in several steps. First, and on a methodological level, a ‘vocabulary test’ will be employed to highlight how the word ‘belief’ has progressively integrated the elements of definition of ‘freedom of religion’ within its scope and the effects of such transformative trajectory. Based on this analysis, and second, this paper will describe the evolution of the legal concept of religious minority. This is done through examining several legal texts and documents, dated between 1966 and today, in the progressive construction of the legal notion of ‘belief minority’.

The construction of FoRB in the deconstruction of religion

After World War II, religious freedom becomes a universal human right in Article 18 of the Universal Declaration of Human Rights in 1948. This article provides that: “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” (UN General Assembly 1948). Overall, considering this textual recognition of religious freedom as a universal human right and source of human dignity for all, it stands to reason that international institutions have refrained from adopting a definitive definition of religion, and this has not been determined by using specific (and thus not universally shared) religious doctrines as their interpretative standard (Ferrari 2022). More precisely, in the light of religious freedom, the belonging to a specific religious community and/or belief in God are not qualified as parameters of universality, but conversely universality springs from the diversity of religions or beliefs as a universal characteristic of humanity. Religious freedom, to be universal, should include the religious diversity expressed by humanity. In this perspective, universality, from an element qualifying the people of God in Hebrew and Christian tradition, becomes a human prerogative in the enjoyment of the right to religious freedom. Seen this way, this right does not only directly qualify the relationships around the divine, but the freedom to have, not have, change or manifest a religion or belief.¹ The universal crystallisation of the sovereignty of the individual over his conscience is realised in the deconstruction of the traditional meaning of religion as the object of religious freedom. Starting from 1948, the internationalisation of freedom of religion as a universal human right has thus produced a new and inclusive definition of ‘religion’ in international and European law. Against this background, freedom of religion can be seen as an umbrella category to protect a wide array of moral orientations, including atheists, agnostics, and indifferentists (Bielefeldt, Ghanea & Wiener 2016).

In practical terms, international institutions moved on to frame the universal protection of freedom of religion as a source equally protecting both believers and non-believers. Going beyond the meaning of religion in its most conventional sense, overall, the extensive scope of these protections can be traced back to a complex intermingling of European and international laws that have recognised over time an all-out freedom to non-belief (Baldassarre 2023). In 1960, Arcot Krishnaswami, United Nations Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, described religion as “difficult to define” and emphasised that “the term ‘religion or belief’ […] includes, in addition to the various religious beliefs, other beliefs such as agnosticism, freethinking, atheism and rationalism” (Krishnaswami 1957: 1). This unusual definition of religion or belief, which expresses the personal point of view of the expert and not an official position of the United Nations, does not mention the term conscience. Thirty-four years later, the European Commission of Human Rights developed an increasingly intense guarantee of belief, going so far as to describe atheism as “a certain metaphysical conception of man, which conditions his perception of the world and justifies his action” (§ 79 in Comm. EDH 1994). In the text of the decision, the Commission qualifies atheism as a point of view comparable to “a religious cult in the classical sense” (ibid.). One year earlier, the European Court of Human Rights in its judgment Kokkinakis v. Greece established that:

Compared with a traditional sense of religion based on transcendent doctrines, international institutions have included in the protection of freedom of religion not only traditional religion but also anti-religious beliefs. This dynamic evokes the evolution of a traditional concept of religion through the progressive affirmation of an inclusive approach to freedom of religion. The development can be seen in Article 18 of the International Covenant on Civil and Political Rights (General Assembly 1966) and in the corresponding acts of the Human Rights Committees (HRC 1993). Furthermore, this more inclusive approach to freedom of religion is also visible in the case law of the Strasbourg Court applying Article 9’s paragraph 1 to traditional religions, new religions, religious minorities and philosophical beliefs (CEDH 2025), in the Presidium’s explanations to Article 10 of the Charter of Fundamental Rights of the European Union (Praesidium de la Convention 2007), and in Article 17 of the Treaty on the Functioning of the European Union, which involves religious denominations and philosophical groups in the dialogue with the European Commission (Priollaud and Siritzky 2008: 9).

In particular, the deconstruction of religion has emerged in the progressive construction of a new freedom of religion or belief, that overcomes the distinction among freedom of conscience and freedom of religion provided in legal sources. In this cross-cutting dynamic, the various international and European institutions, sharing a common distinction between freedom of thought, conscience, religion or belief, interpret and apply freedom of religion or belief without reference to freedom of conscience. It should be noted, moreover, that, in this disconnection between the legal construction of freedom of belief and freedom of conscience, a major transformation in the approaches of international and European institutions has been mobilised. The increasingly rare reference to the word ‘conscience’ is a part of the shift that started with the original tripartition ‘freedom of thought, conscience and religion’, later to include ‘freedom of belief’, and then resulted in the binary terminology of ‘freedom of religion or belief’. This new formula has become established through the dominant use of the English acronym ‘FoRB’ (Ventura 2021). The trend was crystallised by international and European institutions, for example in 1993, 2000, and 2013, as described below.

In 1993, the Human Rights Committee of UN underlined in General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) that: “The freedom to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief” (HRC 1993).

In 2000, the formula ‘FoRB’ was mobilised by the Commission on Human Rights in the appointment of a specific expert named ‘Special Rapporteur on freedom of religion or belief’ (UN Commission on Human Rights 2000), which was subsequently endorsed by ECOSOC decision 2000/261 and welcomed by General Assembly resolution 55/97 (General Assembly 2001). In the development of this mandate, equality in the protection among believers and non-believers has been qualified as international standards of interpretation, application and promotion of FoRB (Special Rapporteur on freedom of religion or belief 2023).

In 2013, the European Union emphasised the impact of the consensus that the acronym FoRB had obtained from the various institutional actors in a document called ‘EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief’. In this document, the Council of European Union underlines that: “The right to freedom of thought, conscience, religion or belief, [is] more commonly referred to as the right to freedom of religion or belief (FoRB) […]” (EU Council 2013).

Building on this background, we can now observe two levels of overlap: one between the freedom of belief and the freedom of conscience; and another between the freedom of belief and the freedom of religion. Freedom of belief thus appears to replace freedom of conscience while it also overlaps with freedom of religion, as the formula ‘freedom of religion or belief’ stretches as far as to include theistic, non-theistic and atheistic doctrines. ‘Religion and belief’ therefore potentially cover a very broad field of application with limits that are difficult to define. The continuous osmosis between the contents of two freedoms seems to make religions and beliefs interchangeable according to variable geometries of superposition. This fluidity was confirmed by the European Union in 2013 in the previously mentioned document ‘EU Guidelines on the promotion and protection of freedom of religion or belief’. Recalling the General Comment No. 22 of the United Nations Human Rights Committee (HRC 1993), the guidelines emphasised that:

The inclusion of FoRB in the interpretation of religious minority: the new concept of belief minority

In international law, another trajectory of deconstruction of the hegemony of ‘religion’ in the specific frame of FoRB can be traced by examining the progressive inclusion of this linguistic formula in the legal interpretation of the concept of religious minority. The transition from minority religion to minority belief in international law is here tracked by first describing the general legal framework defining ‘religious minority’ and then proceeding to an analysis of relevant documents starting from 1966 (Ferrari, 2019). This enables understanding the conceptual evolution of the legal term ‘belief minority’.

Firstly, to describe the general legal framework between 1950 and 1966, the United Nations’ reflection on the rights of religious minorities was included in the codification of an international treaty devoted to the protection of human rights. This process was culminated in the inclusion of Article 27 within the International Covenant on Civil and Political Rights in 1966. The covenant constitutes the first international source to use the linguistic formula ‘religious minority’. Article 27, in particular, states that: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language” (General Assembly 1966). Regarding this wording, which uses neither the word conscience nor the word belief, the question about the definition of religious minority becomes important, as does the difference to the contents of protection expected by Article 18 of the covenant. More precisely, Article 18 provides the general right to have, to adopt and to manifest a religion or belief, while the Article 27 only protects the specific freedom to profess and practice a minority religion. The definition of religious minority and the distinction with Article 18 at the international level is particularly relevant to the obligation of national states to respect religious minority rights. Indeed, until the entry into force of the international covenant, the discussion on the legal status of religious minorities had been developed on a theoretical level by international institutions independently of the codification of a legal source. Article 27 not only provides the concept of religious minority and assigns specific protection to individuals belonging to minority groups but also requires the States that have ratified the covenant to respect the rights of religious minorities.

The issues highlighted in Article 27 have been the focus of its interpretation since 1979, when Francesco Capotorti published the first report about the explication of this article. In the process of interpretation, the concept of religious minority has been elaborated according to a dialectical element inherent in the concept: the existence of religious minority depends on the presence of a religious majority. The religious minority is not defined by itself but always in relation to something other than itself. In this context, the legal status of religious minorities is constructed in contrast to that of the majority. The dialectic between religious majorities and religious minorities becomes a criterion for defining the minority and a vector for specifying general religious freedom, distinguishing particular contents of the guarantee for religious minorities. In particular, insofar as the promotion of religious freedom for minorities is concerned, the main criterion of distinction between Article 18 and Article 27 of the International Covenant on Civil and Political Rights, the definition of what corresponds to a religious minority becomes necessary. This necessity seems to stem from the search for an official definition of religious minority developed by international institutions after 1966 and to be specified on an individual and collective articulation of the interests corresponding to the freedom of the members of a minority to profess and practise their religion.

In this context, the institutional development of the definition of religious minorities is a major effect of the text of the Article 27. Indeed, the definition responds to the need for international institutions to establish the criteria for the legal existence of ‘religious minority’, as a condition provided by Article 27, and therefore to specify the recipients of the rights to freedom to profess and practise a minority religion. From this point of view, seminal publications and studies in the field highlight the construction of the definition of religious minority and the specific rights that surround the distinction between general religious freedom and the freedom of members of a minority to profess and practise their religion. Such publications include the aforementioned ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’ by Francesco Capotorti in 1979 (Capotorti 1979), the ‘Proposal concerning a definition of the term ‘minority’’ by Jules Deschênes in 1985 (Deschênes 1985), and the ‘Observation générale n° 23’ published by the Human Rights Committee in 1994 (HRC 1994). For the purposes of this article, the definition of the 1979 study is analysed.

In the 1979 study, Francesco Capotorti developed an analysis of “essentially legal character”, aiming to answer “all the questions of law and of fact connected with the principles enunciated in Article 27 of the Covenant” (Capotorti 1979: V). Towards that aim, Capotorti developed the following definition of an ethnic, religious or linguistic minority: “An ethnic, religious or linguistic minority is a group smaller than the rest of the population of the State to which it belongs and possessing cultural, physical or historical characteristics, a religion or a language different from those of the rest of the population” (Capotorti 1979: 7). Looking at the specific framework of FoRB in the definition of religious minority, it bears noting at this point how international law introduced an innovative legal understanding of ‘minority religion’.

Moving from the criterion of the religion professed by a group, which expresses the basis of the identity of a minority in the Capotorti’s definition, religion has been redefined within a new interpretation. In this context, the broadening of the criterion of religion has occurred in international law through the application of the term ‘belief’ to religious minorities. The consolidation of the use of the binary terminology ‘religion or belief’ in the dimension of general religious freedom, as inclusive protection also for non-believers, atheists and agnostics, is reflected in the notion of religious minority within the UN legal model. This development is significant for our reflexion, because it highlights how the circulation of the linguistic formula ‘FoRB’ from the context of general religious freedom to the rights of religious minorities integrates a new threshold of relationship between the different guarantees linked to religious freedom, while at the same time transforming the traditional notion of religious minority (Ferrari 2021).

Starting from 2010, the documents applying the term ‘belief’ to religious minorities increase the circularity of the religious freedom glossary and progressively construct the notion of a ‘belief minority’, thus representing a new challenging perspective in the field of international law and religion. As already emphasised, even if the Human Rights Committee, referring to Article 18 of the Covenant, made it clear that the terms belief and religion must be interpreted in the broadest sense and in different terms (HRC 1993), the same Committee made no reference to the notion of ‘belief minority’ in General Comment No. 23, referring to Article 27 (HRC 1994). The UN Human Rights Office amended the definition of religious minority in 2010 by introducing the word ‘belief’. According to the office, religious minorities are groups “in a non-dominant position in the society in which they live and their […] religious or beliefs may be different from the majority or the dominant groups” (OHCHR 2010: 4). This interpretation was also followed by the UN Human Rights Council Forum on Minority Issues in the final recommendations of its annual meeting in 2013:

Seven years later, in 2020, the Special Rapporteur on minority issues, Fernand de Varennes, completed the transposition of the formula ‘freedom of religion or belief’ into the notion of religious minority by founding the concept of ‘religious or belief minorities’ (Varennes 2020: 16). The expert justified this transformation with the need to guarantee consistency between the broad notion of religion, developed in the field of Article 18 by the other United Nations institutions through the category of religion or belief, and that of religious minority provided for in Article 27. Indeed, according to Varennes:

The belief minority from international law to national law: conclusions

Despite the hegemony of the formula ‘freedom of religion or belief’ as international standard for the application of all norms concerning human rights, many questions remain as to the effectiveness of this approach, including the concrete application of Article 27 to groups of non-believers at the national level. In this context, the protection of religious or belief minority can be seen to emerge from the relation, the synergy and, sometimes, even the competition between different legal systems (Ventura 2021). Regarding this competition, Italy for instance has ratified Article 27 of the International Covenant on Civil and Political Rights (Legge n° 881 1977), while at the same time refusing to follow the ‘belief minority’ category developed by international institutions.² Although implicitly, the Italian government has has declined to extend minority protections to non-belief groups on an equivalent basis. This stance is particularly evident in the treatment of the Union of Atheists, Agnostics and Rationalists (UAAR) which, for the Italian government, is not a religious denomination and is consequently precluded from negotiating an agreement (‘intesa’) with the State. Article 8 paragraph 3 of the Italian Constitution provides that the relations of denominations other than Catholicism with the State “are regulated by law, based on agreements with their respective representatives” (Italian Constitution 1948). However, the legal concept of “denominations other than Catholicism” remains undefined, and the Italian government has instead utilised a definition of religious denominations as the expression of “a fact of faith directed towards the divine and experienced in common by several people who make it manifest in society through their own particular institutional structure” (Constitutional Court 2016; UAAR 2003).³ This orientation has been validated by the Italian Constitutional Court. The Court has clarified that the State is not obliged to negotiate with UAAR as the current situation is not a condition of inequality and, at the same time, that the decision of the government to not promote the negotiation is a political act and is not subject to judicial review (Casuscelli 2018; Constitutional Court 2016).

All in all, the Italian case seems to be part of a European trend reported by the Atlas of Religious or Belief Minority Rights, a project that has mapped and measured the rights of religious or belief minorities in the EU countries. Among its findings, the Atlas stated that the legal status of belief minorities “in many EU countries […] is not the same as churches and religious communities” (Baldassarre 2024: 14). This lack of equality with religious denominations emerges in specific domains of protection of FoRB. For example, concerning spiritual assistance, in all twelve countries involved in the project “a spiritual assistance service is organised or financed by the State. Furthermore, in many countries, this service is expected to be provided by a chaplain” (Baldassarre 2024: 14). This demonstrates how a broader understanding of FoRB in international law generally has not translated into rethinking conventional definitions of freedom of religion or belief under national law, as also shown by other examples in the EU states reported by Atlas (Baldassarre 2024). The legal concept of FoRB does not seem to provide the rights granted to belief minorities in recent interpretations of international law if and when States defend a traditional definition of religion (and belief) based on categories largely shaped by perceptions of majority religion, possibly also including the national religious minorities. This traditional approach to religion in Europe can emerge in the different national models intertwined with a confessional tradition, as in the case of Italy, or in a separatist tradition, as in the case of France that, ratifying the International Covenant on Civil and Political Rights, has expressed an opt-out clause on the applicability of Article 27 in France (Gilbert and Keane 2017). Compared to these resistances, a major exception is Belgium. In the Belgium’s approach to law and religion, the equal status among religious and belief minorities is protected by article 11 of the Constitution, that provides: “Enjoyment of the rights and freedoms recognised for Belgians must be provided without discrimination. To this end, laws and federate laws guarantee among others the rights and freedoms of ideological and philosophical minorities” (Wattier 2016).

In conclusion, with regards to Europe, the reluctance of many states to incorporate international standards of protection of FoRB highlights the extent to which safeguarding belief minorities’ protection remains a major challenge at national levels. Interpreting and applying the binary terminology of ‘religious or belief minorities’ suggests a renewed opportunity to extend protection to non-believing groups that also corresponds with the targets of the International Covenant on Civil and Political Rights Article 27. In this regard, where states have ratified Article 27, yet domestic legislation falls short of meeting international standards, belief minorities may collectively invoke breaches of their freedom of belief at both national and international levels. This possibility to claim a synergy between international and national law could form a meaningful avenue for the empowerment of non-believing actors and, at the same time, offers a valuable perspective to broader law and religion debates.

Competing Interests

The author has no competing interests to declare.