BUSINESS ETHICS
AND
THE INTERNATIONAL
RELIGIOUS FREEDOM ACT
Glenn Boggs
College of Business
Florida State University
Copyright © 2000 by Glenn Boggs
Cite as 1 ALSB INT'L BUS. L.J. 15
Policy and
Findings of the International Religious Freedom Act of 1998 | Organization and Structure of the
International Religious Freedom Act of 1998 | Presidential Actions Under the Act | Collateral Issues in the Act | Business Codes of Conduct | Comments
From the Ambassador at Large | Unocal's
Business and Human Rights Statement | Conclusion
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof . . .
1st Amendment, U.S. Constitution
One of the most enduring and advantageous contributions to the betterment of the human
condition so far made by the American experiment in self-government is expressed in the
first two clauses of the First Amendment. If the individual secures control from the state
over whether to worship, and if so, then how to worship, human freedom is vastly
increased. Since freedom of religion under the Constitution has now existed in America for
over two hundred years, perhaps many naively believe that this condition extends widely
and uniformly around the globe. Sadly, it does not. Sectarian violence and state
persecution based on religious belief are regularly reported in the international press.
One has only to recall the human rights abuses reportedly committed by the government of
the People's Republic of China or the religious overtones permeating the conflict in the
Balkans or Northern Ireland to recognize the point.
Now at the threshold of the third millennium, perhaps it will be possible for the
United States to use its position as the world's only remaining superpower to further
advance human rights by enhancing freedom of religion on an international scale. If so,
how can business men and women of good will play a role in achieving that goal?
In October, 1998, the U.S. Congress adopted and the President subsequently signed the
International Religious Freedom Act.1
This new law expresses its purpose in unequivocal language in its Policy section:
It shall be the policy of the United States, as follows:
(1) To condemn violations of religious freedom, and to promote,
and to assist other governments in the promotion of, the fundamental right to freedom of
religion.
(2) To seek to channel United States security and development
assistance to governments other than those found to be engaged in gross violations of the
right to freedom of religion. . . .
(4) To work with foreign governments that affirm and protect
religious freedom, in order to develop multilateral documents and initiatives to combat
violations of religious freedom and promote the right to religious freedom abroad.
(5) Standing for liberty and standing with the persecuted, to use
and implement appropriate tools in the United States foreign policy apparatus, including
diplomatic, political, commercial, charitable, educational, and cultural channels,
to promote respect for religious freedom by all governments and peoples.2 (emphasis added)
No doubt aware that critics of this new U.S. policy initiative would likely complain
that Congress was attempting to impose its own view of morally correct behavior on other
cultures, the Act contains several "Findings" which show preexisting
international support for human rights including religious freedom. For example, the Act
states:
(2) Freedom of religious belief and practice is a universal
human right and fundamental freedom articulated in numerous international instruments,
including the Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights, the Helsinki Accords, the Declaration on the Elimination of All
Forms of Intolerance and Discrimination Based on Religion or Belief, the United Nations
Charter, and the European Convention for the Protection of Human Rights and Fundamental
Freedoms.
(3) Article 18 of the Universal Declaration of Human Rights
recognizes 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." Article 18(1) of
the International Covenant on Civil and Political Rights recognizes that "Everyone
shall have the right to freedom of thought, conscience, and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice, and teaching."3
As these examples show, fair minded people everywhere can agree that human freedom
would be significantly advanced if all persons on earth were accorded freedom of
conscience and religious belief. Unfortunately, that is not now the case in a wide variety
of places. For example, the Act also states,
More than one-half of the world's population lives under
regimes that severely restrict or prohibit the freedom of their citizens to study,
believe, observe, and freely practice the religious faith of their choice. . . .
(5) Even more abhorrent, religious believers in many countries
face such severe and violent forms of religious persecution as detention, torture,
beatings, forced marriage, rape, imprisonment, enslavement, mass resettlement, and death
merely for the peaceful belief in, change of or practice of their faith. In many
countries, religious believers are forced to meet secretly, and religious leaders are
targeted by national security forces and hostile mobs.
(6) Though not confined to a particular region or regime,
religious persecution is often particularly widespread, systematic, and heinous under
totalitarian governments and in countries with militant, politicized religious majorities.4
As a specific example of some of the suffering endured, consider the plight of
Christians in Southern Sudan. A periodical entitled The Presbyterian Layman
reported on remarks by an official from the Institute of Religion and Democracy that there
are,
Christian people in Southern Sudan who suffer virulent forms of persecution at the
hands of Islamic government officials. Inhabitants of entire villages are being
systematically slaughtered. Children are killed in front of their parents. In areas of
severe food shortages, Islamic government officials distribute food given by other
countries only to persons who sever their ties with Christianity.5
In addition, a recent article in USA Today headlined "Anti-Christian
Attacks Hit India." The article went on to report, in part,
In the past year, at least 100 attacks on Christians have
taken place in India, more than have occurred in the past 50 years combined.
The violence has escalated since the Hindu nationalist Bharatiya
Janata Party (BJP) came to power in early 1998. More than two dozen churches have been
burned. Priests have been forced to leave their parishes; nuns have been hassled.
Last month, the violence made headlines worldwide when an
Australian-born Christian missionary and his two sons, ages 6 and 10, were burned to death
while they slept in their car.
Though church and government leaders agree that a "lunatic
Hindu fringe" is responsible for the violence, church leaders say the government has
given the extremists the green light by failing to take substantive action against them.
"They are doing nothing. That is why I hold them
responsible," says the Most Rev. Alan de Lastic, the Roman Catholic archbishop of New
Delhi.6
These, of course, are only examples of the kind of suffering currently borne by
religious people who hold a wide variety of faiths throughout the world today. Remember
that according to Congress' finding of fact, "More than one-half of the world's
population lives under regimes that severely restrict or prohibit the freedom of their
citizens to study, believe, observe, and freely practice the religious faith of their
choice."7
In order to implement the policy of confronting religious persecution throughout the
world, the Act creates an organizational structure for that purpose in the executive
branch of the U.S. government. First, a new ambassadorship entitled Ambassador at Large
for International Religious Freedom at the head of a new office in the Department of State
(the Office on International Religious Freedom) was established. The Act provides that the
Ambassador will be appointed and confirmed in the usual way and prescribes his official
duties (in part) as follows,
The primary responsibility of the Ambassador at Large shall be
to advance the right to freedom of religion abroad, to denounce the violation of that
right, and to recommend appropriate responses by the United States Government when this
right is violated.
(2) Advisory role.--The Ambassador at Large shall be a principal
adviser to the President and the Secretary of State regarding matters affecting religious
freedom abroad and, with advice from the Commission on International Religious Freedom,
shall make recommendations regarding--
(A) the policies of the United
States Government toward governments that violate freedom of religion or that fail to
ensure the individual's right to religious belief and practice; and
(B) policies to advance the right
to religious freedom abroad.8
In addition to creating the Ambassadorship and an Office on International Religious
Freedom, the new Act places several other obligations on the Secretary of State. First,
starting in September, 1999, there will be an Annual Report on International Religious
Freedom. This report will go to Congress, and in order to comply with the Act, it must
meet a variety of specific statutory requirements including providing data, information,
and assessments on each foreign country. It also contains an Executive Summary which, in
turn, must satisfy statutory requirements for items in its content. The Secretary of State
must also set up a religious freedom Internet site, increase religious freedom training
for Foreign Service officers, provide equal access to U.S. missions abroad for religious
activities (under certain conditions), develop prisoner lists and issue briefs for certain
countries, require U.S. chiefs of mission to provide contacts and meetings with certain
nongovernmental religious organizations, and prepare other specified reports, strategy
concepts and funding recommendations.9
One of the major initiatives of the Act is the establishment of a new and independent
U.S. Commission on International Religious Freedom. The Commission has nine voting members
plus the Ambassador as an ex officio nonvoting member. The Commission's primary
responsibility is:
(1) the annual and ongoing review of the facts and
circumstances of violations of religious freedom presented in the Country Reports on Human
Rights Practices, the Annual Report, and the Executive Summary, as well as information
from other sources as appropriate; and
(2) the making of policy recommendations to the President, the
Secretary of State, and Congress with respect to matters involving international religious
freedom.10
In order to carry out its duties Congress provided the Commission with a potentially
powerful tool regarding Hearings and Sessions by prescribing that,
The commission may, for the purpose of carrying out its duties
under this title, hold hearings, sit and act at times and places in the United States,
take testimony, and receive evidence as the Commission considers advisable to carry out
the purposes of this Act.11
It only takes a small flight of imagination to foresee that provocative witnesses
before the Commission might very well end up live on CNN or as sound bites for the
network's evening news. Perhaps if a forum like this had existed in the 1930's public
scrutiny might have been focused on Nazi persecution of European Jews and the Holocaust
may even have been minimized, deterred, or delayed.
Congress funded the Commission with an appropriation of $3,000,000 and required the
Commission to make an annual report to the President, the Secretary of State and itself.12
To further strengthen the organizational framework established by the Act, Congress
also suggested a change to the National Security Council staffing. The Act states,
It is the sense of the Congress that there should be within
the staff of the National Security Council a Special Adviser to the President on
International Religious Freedom, whose position should be comparable to that of a director
within the Executive Office of the President. The Special Adviser should serve as a
resource for executive branch officials, compiling and maintaining information on the
facts and circumstances of violations of religious freedom . . . and making policy
recommendations. The Special Adviser should serve as liaison with the Ambassador at Large
for International Religious Freedom, the United States Commission on International
Religious Freedom, Congress and, as advisable, religious nongovernmental organizations.13
At the core of this new law, Congress specified a range of possible U.S. responses to
foreign violations of religious freedom which the President has at his disposition by
stating,
For each foreign country the government of which engages in or tolerates violations of
religious freedom, the President shall oppose such violations and promote the right to
freedom of religion in that country through the actions described in subsection (b). . . .
Each action taken under paragraph (1)(b) shall be based upon
information regarding violations of religious freedom, as described in the latest Country
Reports on Human Rights Practices, the Annual Report and Executive Summary, and on any
other evidence available, and shall take into account any findings or recommendations by
the Commission with respect to the foreign country.14
The Act gives the President a wide variety of actions to choose from to oppose
religious persecution abroad which are listed in the accompanying note.15
The list of possible sanctions include diplomatic and financial alternatives available
to the President. The Act makes it clear that Congress is especially concerned about
foreign states which are engaged in "particularly severe violations of religious
freedom"16 but even there the
statute does not hamstring the President in the conduct of foreign policy. The Act
provides the President with authority (subject to certain conditions) to delay specified
presidential actions, (with exceptions to "ongoing presidential action") with
"Presidential Waivers;" the President also has authority to shield certain
existing contracts from adverse effects of actions taken under this Act.17 Congress also requires the
President to engage in consultations with foreign governments and other specified parties
before taking certain actions in response to violations.18
One very interesting aspect of the Congressional approach to opposing international
religious persecution is the expressed desire of Congress to specifically identify the
individuals or institutions in foreign countries who are responsible for religious freedom
violations. To achieve this goal the Act states,
For the government of each country designated as a country of particular concern for
religious freedom under paragraph (1)(A), the President shall seek to determine the agency
or instrumentality thereof and the specific officials thereof that are
responsible for the particularly severe violations of religious freedom engaged in or
tolerated by that government in order to appropriately target Presidential actions
under this section in response. . . .
Whenever the President designates a country as a country of
particular concern for religious freedom under paragraph (1)(A), the President shall, as
soon as practicable after the designation is made, transmit to the appropriate
congressional committees--
(A) the designation of the country, signed by the President; and
(B) the identification, if any, of responsible parties. . . .19 (emphasis added)
To round out the scope of the President's authority, the Act also provides that certain
information must be published in the Federal Register, that the courts have no
jurisdiction to review "any Presidential determination or agency action" under
the Act, and that Presidential actions under the Act will terminate on the occurrence of
specified events.20
Collateral Issues in the Act
To be sure that a variety of other federal statutes dealing with international
relations conform to the spirit and intent of the Act, Congress included a series of
enactments addressing such areas as: U.S. foreign assistance (including military,
economic, and multilateral assistance items), exports of certain material, international
broadcasting, international exchanges, foreign service awards, and refugee, asylum and
consular matters. Congress tucked a small provision regarding Visas and Admission to the
U.S. in with the matters regarding asylum which may prove to be especially interesting and
perhaps newsworthy. Under the Act, some foreign government officials who are perpetrators
of religious persecution could be barred from entry into the U.S. Specifically the Act
states,
(G) Foreign government officials who have engaged in
particularly severe violations of religious freedom.--Any alien who, while serving as a
foreign government official, was responsible for or directly carried out, at any time
during the preceding 24-month period, particularly severe violations of religious freedom,
as defined in section 3 of the International Religious Freedom Act of 1998, and the spouse
and children, if any, are inadmissible.21
It is easy to foresee how implementation of this requirement could provoke cries of
outrage from foreign states if and when certain of their government officials are denied
entry to the United States.
Business Codes of Conduct
Since the goal of advancing human rights, and particularly religious freedom,
throughout the world is one around which a broad-based consensus of agreement can be
forged, Congress may have been inclined to take the step of seeking assistance from the
business community to achieve the goals of the Act. In any event, Congress included such a
provision in the new statute. The law provides,
(a) Congressional Finding.--Congress recognizes the increasing
importance of transnational corporations as global actors, and their potential for
providing positive leadership in their host countries in the area of human rights.
(b) Sense of the Congress.--It is the sense of the Congress that
transnational corporations operating overseas, particularly those corporations operating
in countries the governments of which have engaged in or tolerated violations of religious
freedom, as identified in the Annual Report, should adopt codes of conduct--
(1) upholding the right to freedom
of religion of their employees; and
(2) ensuring that a worker's
religious views and peaceful practices of belief in no way affect, or be allowed to
affect, the status or terms of his or her employment.22
Notice that Congress has not compelled companies operating abroad to do anything.
Instead, Congress has, in effect, invited international business firms to help it achieve
the goals advanced in the Act. The statutory language only "recognizes the increasing
importance of transnational corporations . . . and their potential for providing positive
leadership in their host countries in the area of human rights" and the "sense
of the Congress" that such corporations "should adopt codes of
conduct" which protect their employees' and workers' human rights to freedom of
religion. (emphasis added)23
Comments From the Ambassador at Large
America's first Ambassador for International Religious Freedom is Robert Seiple who
took office in May, 1999. According to an article in the Los Angeles Times
. . . Seiple, 56, was already well acquainted with wrenching
conditions of poverty and strife overseas. For the last 11 years he has been president of
the international Christian relief organization World Vision Inc.
But now as an ambassador, Seiple, an evangelical Christian, faces
the daunting task not only of working to end religious persecution, but also of elevating
human rights, and religious freedom in particular, as a primary foreign policy objective.24
The Times went on to report,
In the interview and in a speech earlier this week at the Los
Angeles Islamic Center, Seiple criticized Turkish officials for their treatment of Merve
Kavakci, an American-educated Muslim activist who was elected to Turkey's parliament.
Kavakci was prevented from being sworn in as a member of parliament because she refused to
remove her head scarf.
"It is absolutely essential that this woman's rights under
Turkish law and international human rights be fully respected as this case proceeds,"
Seiple told his audience at the Islamic center. "As a matter of general principle,
secularism and respect for internationally protected rights of freedom of religion are not
mutually exclusive."25
In April, 1999, The Christian Science Monitor reported that Seiple made the
following comments which appear to reflect his views toward the international business
community and its role in advancing religious freedom as follows:
Helping international business to "lift its voice" may begin by encouraging
individual corporations with facilities or employees in foreign nations to embrace the new
federal law and adopt a business code of conduct. The recent experience of Union Oil
Company of California (Unocal) may be instructive in this regard.
Unocal's Business and Human Rights Statement
According to a recent Associated Press article, Unocal has been involved in a
controversy surrounding its operations in Myanmar. One of the company's critics, Robert
Benson (a law professor), claims that Unocal forced villagers there to relocate, using
forced labor to build the company’s infrastructure. "Unocal denies the
allegations." A Unocal spokesman said that the company is a "solid corporate
citizen" that had recently "formalized a corporate position on human rights."
The spokesman, Mike Thatcher, said "The bottom line is, we respect human rights in
all of our projects,"27
(emphasis added) A recent check on the Unocal's web postings reveals the following
statement:
What, if anything, is the role of the multinational corporation in
supporting human rights?
Unocal, as a U.S. company operating in many different foreign
countries, has a legal and ethical obligation to remain politically neutral. Our economic
impact, however, is far from neutral. We have seen time and again how our presence has
improved the quality of life for people - regardless of politics. And history suggests
that economic progress typically promotes increasing respect for human rights.
Our energy development operations have clear human rights
implications. We generate economic growth that gives political confidence and influence to
a rising middle class. We hire, train and provide advancement opportunities for the
citizens of our host countries. We introduce modern values and concepts, such as equal
employment opportunity regardless of sex, race, ethnic background or religious preference.
We provide a supportive working environment in which all employees may freely contribute.
We introduce safety training and environmental programs into the workplace, and offer
health care and educational opportunities that further empower communities. And, in
keeping with our commitment to improve people's lives wherever we work, we support a wide
variety of humanitarian and philanthropic initiatives.
These are not simply by-products of our commercial activities.
Rather, they constitute what we see as our responsibility and commitment to
the people and the countries where we work.
Moreover, the nature of our business also creates long-term
relationships with host country leaders and other key decision makers. Often, in the
context of discussing our energy development activities with government officials, Unocal
is able to raise concerns about human rights issues and privately present our views.28
Although the foregoing statement only addresses religious freedom in the context of
equal employment opportunity (see the third paragraph) it does clearly state the company's
view on a variety of human rights issues and suggests how the company might unofficially
and quietly seek to influence public policy in host countries. Perhaps this document can
be seen as an initial model for international companies who choose to accept Congress'
invitation to adopt business codes to advance their employees' and workers' freedom of
religion.
Conclusion
Congress has made a policy choice to use the power and influence of the United States
to advance the cause of religious freedom throughout the world. To implement this policy
it created both a new Commission on International Religious Freedom and an Ambassador at
Large on the same subject. It also provided the President with a variety of political,
diplomatic, and economic sanctions to use in conducting foreign policy. Congress invited
the international business community to participate in this initiative by adopting
Business Codes of Conduct to protect and increase the religious freedom of their workers
and employees. As the shareholders, directors, and executives of transnational
corporations become aware of, and perhaps interested in the cause of advancing
international religious freedom, utilization of this available tool may then expand. |
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