International Religious Freedom Report: Time to Back Up Tough Talk with Tough Actions

John G. Malcolm / July 31, 2012

Yesterday, the State Department issued its 2011 International Religious Freedom Report, which represents the culmination of an annual review the State Department must undertake pursuant to the International Religious Freedom Act of 1998 (IRFA). However, other than exhorting countries that are egregious violators of religious liberties (as defined in IRFA) to stop doing bad things, the report appears to be short on specific recommendations designed to improve the situations in those countries.

IRFA affirmed America’s commitment to religious freedom as enshrined in our Constitution and in various international instruments, such as Article 18 of the Universal Declaration of Human Rights (UDHR), which provides:

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.

At the release of the report, Suzan Johnson Cook, the U.S. Ambassador at Large for International Religious Freedom, stated:

Freedom of religion is not just an American right but the right of all people. It goes hand in hand with freedom of expression, freedom of speech and assembly, and when religious freedom is restricted, all these rights are at risk. And for this reason, religious freedom is often the bellwether for other human rights. It’s the canary in the coal mine.

Secretary of State Hillary Clinton delivered a serious and sobering speech later in the day at the Carnegie Endowment for International Peace, in which she noted that “[m]ore than a billion people live under governments that systematically suppress religious freedom.” She stated that the report “sends a signal to the worst offenders that the world is watching.” Unfortunately, if “what’s past is prologue,” to quote Shakespeare, there is reason to believe that insufficient action will be taken by President Obama to undergird the Secretary’s inspiring words.

IRFA requires the President, who has delegated this authority to the Secretary of State, to designate as “countries of particular concern” (CPCs) those countries whose governments have engaged in or tolerated “particularly severe violations of religious freedom,” which are defined in Section 3(11) of the Act as ones that are systematic, ongoing, and egregious, including acts such as torture, prolonged detention without charges, disappearances, or other flagrant denials of the right to life, liberty, or the security of persons. After a country is designated a CPC, the President is required by law to conduct an annual review, no later than September 1 of each year, and to take one or more of the actions specified in the IRFA.

Section 405 of the IRFA provides the President with an array of options to consider including demarches; private or public condemnation; the denial, delay or cancellation of scientific or cultural exchanges; the cancellation of a state visit; the withdrawal or limitation of humanitarian or security assistance; the restriction of credit or loans from United States and multilateral organizations; the denial of licenses to export goods or technologies; a prohibition against the U.S. government entering into any agreement to procure goods or services from that country; or “any other action authorized by law” so long as it “is commensurate in effect to the action substituted.”

Although IRFA provides that the “President shall seek to take all appropriate and feasible actions authorized by law to obtain the cessation of violations,” the President retains the authority to invoke a waiver of sanctions against a CPC if, in his judgment, circumstances warrant it.

Unfortunately, although IRFA envisions an annual review by the President of the State Department’s CPC recommendations, yesterday’s report did not contain any, citing instead CPC recommendations that were made by the State Department in August 2011. The eight countries that were designated as CPCs by the State Department in August 2011 were Burma, the Democratic People’s Republic of Korea (North Korea), Eritrea, Iran, the People’s Republic of China, Saudi Arabia, Sudan, and Uzbekistan. These are the same eight countries that have been designated as CPCs since January 2009, and many have been on the list for far longer than that.

Although the IRFA is ambiguous as to whether a new designation is required, it is seems strange that, as part of an annual review, the State Department did not proffer an updated list. Equally strange is that the State Department did not offer any explanations as to why it rejected many of the recommendations of the United States Commission on International Religious Freedom (USCIRF), an independent, bipartisan federal government commission, that recommended CPC designation for several other countries in its 2012 Annual Report.

Specifically, USCIRF, where I used to serve as General Counsel, recommended that Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkey, Turkmenistan, and Vietnam be designated as CPCs and provided detailed information to support those recommendations, along with specific policy recommendations to remediate the problems in those and other countries. IRFA provides that the Secretary of State must take “into consideration the recommendations of the Commission.” While this does not mean, of course, that the Secretary must or even should adopt all of the Commission’s recommendations, it is somewhat surprising that the International Religious Freedom Report doesn’t address—even in passing—these seeming discrepancies in views toward the appropriate designation of these additional eight countries.

And what actions have been taken against the eight countries that the State Department did designate as CPCs? Well, in the case of Saudi Arabia and Uzbekistan, the answer is none, since the President has waived the imposition of sanctions supposedly to further the purposes of the IRFA, although it is hard to see how. With respect to the other countries, sanctions have been imposed, some of them quite severe. However, unfortunately, even with respect to these countries, the sanctions that have been imposed have been under other statutes for other violations of law. While this practice of “double-hatting” is permissible under the IRFA, it sends the wrong signal that our government cares more about other violations of law than it does about egregious violations of religious liberty, and it also provides little incentive for CPCs to ameliorate those violations and improve the human rights of people living within their borders.

Religious freedom has often been given short shrift at Foggy Bottom. Indeed, the U.S. Ambassador at Large for International Religious Freedom is one of the few Ambassadors who does not report directly to the Secretary of State, reporting instead to the Assistant Secretary for Democracy, Human Rights and Labor. Let us hope that the President will take sufficient action under the IRFA to attempt to address the suffering that many people of faith endure at the hands of egregious violators of religious liberties abroad.