The United States historically has honored the religious
rights of its citizens, a tradition which Martha Nussbaum characterizes as the
"fixed star" of American legal history (Nussbaum 21). The recent case
of Kenneth Bae’s missionary action, labor camp imprisonment in North Korea and
the subsequent diplomatic developments could be viewed in line with the
constitutional preservation of religious rights. Yet in this specific case, the
US’s protection of these rights clashed with its national foreign policy,
forcing the US government to prioritize the right of its citizens to engage in
religious practices such as proselytism over the sovereignty of foreign
countries in managing religious activity internal to their borders. To
circumvent a situation in which the US is obliged to value the constitutional
rights of its citizens over foreign jurisdiction, I claim that the US
government must establish a focused policy regulating the behavior of its
citizens in delivering evangelistic aid to third world countries.
On December 21, 2012, the Korean Central News Agency of
the DPRK announced that it had arrested Kenneth Bae, a Christian missionary and
naturalized US citizen from South Korea, for “committ[ing] crimes aimed to
topple the Democratic People’s Republic of Korea” (Taylor). Mr. Bae had
connections to evangelical organizations such as the Joseph Connection and
Youth with a Mission, and as the founder of the Sino-based tour group Nation
Tours, had travelled through the country fourteen times previously without
incident (Taylor). During past trips, Bae along with members of his tour group
visited orphans and provided aid to North Korean citizens, in addition to
singing Christian songs, and hosting public worships designed to “allow for the
walls [of religious repression] to come down in North Korea" (FlorCruz).
Upon entering the city of Rason in 2012, Bae was tried for planning the
“Jericho Operation,” a campaign to infiltrate and convert 250 North Korean
students, and he was sentenced to 15 years of hard labor (FlorCruz). The US
government responded swiftly and disparagingly to Bae’s arrest, stating that he
had “no reason to be detained” and that he “should be released immediately,” a
message it reinforced by sending North Korean Human Rights Envoy Robert King to
negotiate Bae’s release (US Vice President Joe Biden). North Korea
arbitrarily rescinded its invitation to Ambassador King, and nine months later,
the US managed to secure Bae’s release when it dispatched Director of National
Intelligence James Clapper in a second diplomatic overture to the regime. This
is not the first time the US government intervened to negotiate the release of
an American missionary that had run afoul of the DPRK’s strict religious laws;
most recently in May 2014, Jeffrey Fowle was arrested for leaving a bible in a
North Korean nightclub and was released a month before Bae (Baker and
Gladstone).
The freedom of
conscience in humanitarian aid versus the right to proselytize
While Kenneth Bae was primarily arrested as a consequence
of his proselytizing activities, he was motivated to repeatedly enter the DPRK
by a desire to deliver humanitarian aid to the North Korean citizens, a
compulsion which I will analyze alongside his evangelistic intentions. It is
commonly accepted that humanitarian aid, fundamentally, is a matter of human
rights. This is evident from the viewpoint of the individual needing assistance
in North Korea or other third-world countries, who through the aid, gains full
access to "component rights" such as the right to life, food, health
and medical services (Pietropaolo 4). Yet given that individual aid workers
provide charity due to a personal sense of sympathy and moral duty, the
distribution of humanitarian aid can also be considered an aspect of the
donor’s right to freedom of conscience. The ability to provide humanitarian aid
to those living in third world countries, and therefore act according to one’s
conscience is firmly entrenched in the universal right to freedom of
conscience, which is expressed in Article 18 of the Universal Declaration of
Human Rights.
Evidence drawn from aid-giving practices around the world
show that religiously-motivated groups are more inclined to deliver charity
than non-religious ones, in light of the spirit of generosity and care for
one's neighbor that are central to the practices of many major religions
(Schnable 3). Regular involvement in international humanitarian aid is
stimulated by the “diffuse cultural ambience” that characterizes religious
communities and also exposes members to greater opportunities for almsgiving
(Schnable 2). Especially in developing regions in Latin America, missionaries
of religions such as Christianity that operate with a “preferential option for
the poor,” raised awareness on the plight of the lower classes and opened the
way to charitable contributions from the international community (The
Guardian Global Development Students Speak). Furthermore, the lack of
returns or rewards that a donor receives for his contribution in third-world
countries means that those motivated by an external, usually religious cause
constitute a significant number of the charitable workers in these areas. Due
to the tendency for religious groups to bring humanitarian aid to third
world countries, it has been common for the delivery of charity to be
associated with, to the extent that it is even indistinguishable from, the
religious proselytizing activities of missionaries.
The provision of aid to third world countries by missionaries with
proselytizing intentions has historically caused much controversy. This takes
place when a religious group’s evangelical objectives interfere with, or are
manifested in the distribution of humanitarian aid. Some Christian evangelists
from South Korea, situated in China across the border from North Korea, have
been known to openly state that their ultimate goal of helping North Korean
refugees is to inform them of God, even establishing the defectors’ conversion
to Christianity as a prerequisite for their protection and safety (Jung 151).
Furthermore, such a manifestation of the foundational religious goal of
converting non-believers in aid delivery can lead to a perception of the giving
of humanitarian aid as treading on a fine line between acceptable and
unacceptable forms of religious practice in third world countries. This
distinction becomes significantly harder to perceive in North Korea’s
convoluted legal norms, where foreign missionaries must pay close attention not
to the nominal guarantee of the right to freedom of religious belief in the
state Constitution, but to the implemented and practiced governmental attitude
toward religious practice and external religious influences. The North Korean
Constitution in essence is unfavorable toward the religious practices of
foreign missionaries in the DPRK, due to its purely superficial protection of religious
rights (Constitution of the DPRK, Art. 68). One can speculate that Mr. Bae was
unaware of the situation of religious freedom in North Korea, which requires
government approval, which, in itself, is unfavorable to religious
missionaries.
The culture of religious
liberty in the United States
In order to fully understand Mr. Bae’s arrest and the
extent to which his “crimes” could be discussed under the right to freedom of
conscience and religion, it is necessary to examine his actions in the national,
cultural context from which they originated. Authors Brian Tierney and Martha
Nussbaum effectively engage in conversation concerning the character of the
American attitude of religious toleration into which Kenneth Bae moved at age
18 and in which his missionary and humanitarian aid work to North Korea were
rooted.
According to Tierney, American history was an indirect,
non-progressive story that confounded the clear message for toleration of
religious beliefs and practices proposed in founding documents. Early American
leaders like William Penn and Roger Williams emerged as the strongest and most
forward-thinking proponents of religious toleration in their age (Penn’s
conception of the liberty of thought and belief as the “natural right of all
men” formed the basis on which Pennsylvania’s state constitution was later
founded (Tierney 42).) Such advanced ideological conceptions were unable to
curb the persecution of heretics, outsiders, and members of minority religions,
however, that would be ever present throughout American history, and which
Tierney believes, proves that intolerance is an unavoidable pattern in human
conduct. For Nussbaum, on the other hand, religious equality and full respect
for religious practices form the foundations of the American legal system, the
modern understanding and application of which has evolved gradually through the
experience of the American people in a diverse society. Nussbaum suggests that
these pillars tie together various characteristics of the US’s national religious
scene, including nonestablishment of state orthodoxy, separation of church
& state, and special accommodation of religious minorities to allow for
“individual religious choice” and “equal freedom...to worship in [one’s] own
way” (Nussbaum 19). Nussbaum pays close attention to what she calls the
“respect-conscience principle” of the American religious tradition, under which
the government must “respect the fact that [different religious groups] have
different religious commitments,” even when it does not believe that these
beliefs are “correct, or… valid routes to the understanding of life,” opening
the way for controversial practices such as proselytism (22-23). The historic
occurrence of persecution and coercion of heretics that Tierney notes contributed
to a “new depth of insight” into founding documents, whose meaning became
deeper and more widely applicable through the American experience (357).
Regardless of their perspectives on the course and advancement of
religious liberty throughout history, both authors concur that the American
tradition has been particularly advanced from inception in its promotion of a
broad interpretation of religious rights. Moreover, the prescient upholding of
religious liberty in the founding documents and the works of the founding
fathers suggest that Kenneth Bae’s evangelistic practices were in compliance
with the spirit of the religious rights enshrined in the earliest American
legal instruments.
The modern-day protection of religious rights in the US and around
the world was greatly influenced by the terms of the UDHR, with its protection
of the universal right to freedom of thought, conscience, and religion (UDHR,
Article 18). Many countries have interpreted these terms as mandating a certain
degree of government secularism in order to preserve free religious choice,
though the manner in which they implement secularism varies significantly by
country. The principle of secularism or laicite constitutes the official
state policy of France, and in 2010, the French government abolished the
wearing of religious face-coverings and head gear in public places, in an
attempt to uphold this policy and appear “politically correct” (McGoldrick
254). This can be compared to secularism in the United States, the enforcement
of which promotes a “truly equal liberty” which gives equal deference to the
practices of every religion (Nussbaum 22). In terms of the yearly output of
missionaries, 127,000 of the world’s 400,000 evangelists in 2010 originated
from the US, while the number of French evangelists was not even mentioned in
many studies (Lovering). This statistic proves that the historic tradition of
protecting religious rights in the US has had a notable impact on the American
interpretation and the implementation of Article 18 of the UDHR.
Then what role has proselytism played in the liberal environment
of the United States? Nussbaum’s perspective on the preservation of religious
liberty throughout American history and the US’s interpretation of the UDHR
portray the United States as an environment generally favorable to religious
practices involving proselytism. In a 1940 court case concerning the religious
practice of members of the Jehovah’s Witness, the US Supreme Court unanimously
reaffirmed the US’s commitment to defending the right to engage in evangelistic
behavior; on the grounds of protecting the liberties of American citizens in
the long view, the Court Justices considered the right to engage in religious
proselytism essential to enlightened opinion and right conduct on the part of
citizens of a democracy (Cantwell v. Connecticut).
Yet as demonstrated by the contrasting interpretations of
secularism, a principle commonly derived from the terms of the UDHR, in the US
and France, the influence of the culture and tradition of a country on its
protection of religious rights allows for highly disparate treatments of this
rights category. While exercising a right protected under American rights laws
during his trip to North Korea, Mr. Bae ran into an irreconcilable conflict
between the religious rights instituted in the US and the DPRK, compelling the
US government to intervene in an attempt to free him and restore his rights.
The liberal reading and implementation of international rights documents in the
United States can therefore have consequences outside the religious context, on
the country’s diplomatic and political position in the international realm.
Questions on the US
government’s duty to restore Mr. Bae’s rights and secure his release
Once the US government’s upholding of the religious rights of its
citizens extends into international discussions, it becomes relevant to various
international agreements regarding the sovereignty of nations over their
citizens overseas, including the 1963 Vienna Convention on Consular Relations,
ratified by 177 state parties including the US and DPRK. While the consuls of
member states under the Vienna Convention function to protect the interests of
its citizens in foreign countries, this protection must “be exercised in
conformity with the laws...of the receiving state” (VCCR, Article 36). When the
citizen of a member state of the Convention is arrested or detained in a
foreign country, consular officials are permitted only to converse with him and
arrange for legal representation, while still respecting the authority and
decisions of the receiving state (VCCR, Article 36). US actions with regards to
the arrest of Kenneth Bae were therefore not in compliance with the established
international agreements. Throughout his sentencing and imprisonment, the US
government, through official remarks and the sending of envoys to negotiate Mr.
Bae’s release, clearly demonstrated and acted upon its disapproval of the
DPRK’s actions.
Certain factors allowed for Mr. Bae’s religious rights to override
current US foreign policy, among them, the perception of the involved foreign
country as inferior to the United States in its protection of human rights,
given its poor track record in the international community. The significance of
these factors in determining US actions can also be seen in the case of Saeed
Abedini, an Iranian American pastor who, like Bae, was detained “on charges
related to his religious beliefs,” while establishing Christian churches and
creating orphanages in the repressive state of Iran in 2012 (“Detained U.S.
Citizen Saeed Abedini”). In a press statement, Secretary of State John Kerry
expressed that the “best outcome for Mr. Abedini” was “immediate release” by
Iranian authorities on humanitarian grounds (“Detained U.S. Citizen Saeed
Abedini”).
As seen in the cases of Mr. Abedini and Mr. Bae, the domestic and
international position of the sending state is substantially weakened by the
detainment of its citizen overseas. From an international standpoint, the
presence of a hostage establishes a condition in negotiations between the
receiving and sending state, for which the latter nation is forced to make
concessions in order to secure the well-being and release of its imprisoned
citizen. If the two countries were engaged in political or diplomatic
negotiations prior to the arrest of the citizen, the presence of a hostage can
be manipulated to the advantage of the receiving state in the larger bilateral
discussion, with potentially far-reaching impacts on the outcome of the
original negotiations and relations between the states. In order to free Mr.
Abedini, Secretary of State Kerry “brought up Saeed[‘s case] every time he
m[et] with the Iranians” for negotiations on Iran’s nuclear capabilities,
establishing another condition for which the US would have had to allow
concessions to Iran in an already precarious dialogue situation (ACLJ). The
United States have never established diplomatic relations with the DPRK, yet it
was widely speculated at the time of Mr. Bae’s arrest that the North Korean
state fully intended for his release to coincide with acknowledgement of the
legitimacy of the regime or US compliance with its political demands (Taylor).
The situation of Americans detained abroad for continuing to carry
out rights they had thought were their entitlement as American citizens also
places internal pressure on the United States government for failing to fulfill
its honor-bound duty to defend the Constitutional rights of its citizens. In
news interviews, members of Mr. Bae’s family repeatedly called on President
Obama to “push harder for [Bae’s] release” (Hancocks) Mr. Bae’s case
illustrates one example of an exception in US compliance with international
agreements when the religious rights of its citizens are involved. Both
intervention and nonintervention in these cases lead to significant
consequences for the US, due to the lack of regulatory statutes detailing the
rights of missionaries working overseas.
Inadequacy of current
international and national human rights instruments
A careful examination of existing national and international legal
measures addressing the religious rights shared by members of the international
community, however, reveals that the issues of controversial religious rights
such as proselytism and the defense of such rights in a foreign-hostage
situation are insufficiently and only indirectly addressed. At the most basic
level, Article 18 of the UDHR vaguely outlines the universal right to
"thought, conscience, and religion," which can be exercised either
"in public or private," and manifested in a variety of ways: through
"teaching, practice, worship, or observance" (UDHR, Article 18). Not
much progress was made in 1954 by the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, which stated that "everyone
shall be free to adhere, or not to adhere to a religion or belief" and
declared the right to remain free from subjection to "material or moral
coercion likely to impair [one's]...religion or belief," but also called
for the freedom "to teach or to disseminate" one's religion or belief
publicly and privately, without properly addressing the overlapping area of
these two rights (“Draft Principles on Freedom and Non-Discrimination in the
Matter of Religious Rights and Practices”). As previously established, such
broad and open terms have allowed for UN member states to institute laws that
range from near outright prohibition in North Korea to relative toleration of
religious proselytism in the United States, while still remaining within the
boundaries asserted by the United Nations. Meanwhile, UN instruments such as
the Convention on Racial Discrimination, which could establish more definite
boundaries when applied to protection of the right to evangelize and share
one's faith with others, are not considered binding by UN member states. The
United Nations’ legal instruments addressing the religious right to proselytize
are therefore too ambiguous to be considered valid founding documents for the
development of rights legislation within member states, and may have
contributed to foreign-hostage situations such as that of Mr. Bae.
While the United States generally seeks to preserve the human
rights of its citizens, laws concerning the rights of citizens and limitations
on their religious worship and practices have instituted diverse rulings on
proselytism. The Establishment and Free Exercise Clauses of the First Amendment
prohibit establishment of a state church and the right to freely engage in
religious practice according to one's individual choice, which like Article 18
of the UDHR, does not offer a solution for a conflictual situation in which the
right to practice one's chosen religion is viewed in the context of the right
to evangelize, a practice that may be central to one's religion. Furthermore,
Supreme Court rulings on the proselytism of members of the Jehovah’s Witness,
which I mentioned above as having had a significant influence on the US’s
treatment of the practice, deliver an often contradictory message. According to
the decision in the Cantwell v. Connecticut court case, restriction of
the right of citizens to engage in proselytism, regardless of the appearance of
the action as a “rank error to [one’s] neighbor” and the proselytizer as one
“resort[ing] to exaggeration,” is contrary to the spirit of a democracy (Cantwell
v. Connecticut). Yet this statement was preceded by the declaration that “a
State may...regulate the time, place and manner of soliciting upon its streets,
and...safeguard the peace, good order, and comfort of the community"(Cantwell
v. Connecticut). The state theoretically has the authority to deny
protection to religious proselytism on the grounds of preserving the subjective
notion of “good order” in society. Extending the scope of this reasoning to the
international sphere, the burden remains on the US government to prove why
generally-applied legal protection should not be extended to specific religious
practices, while the North Korean government’s judgement establishes the standard
against which religious practices are approved on a case-by-case basis.
Moreover, there is very little national legislation currently in
place that specifies the rights, especially religious rights, guaranteed to
American citizens abroad. I established above that since the ratification of
the Vienna Convention on Consular Affairs, US Consular officers have only been
authorized to act as points of communication and support for US citizens
subject to foreign legal processes of indictment and prosecution. Yet the US’s
actions in seeking to overturn such foreign rulings suggest that in certain
cases, the American government is compelled to defend the rights of its
citizens, even at the cost of weakening its international position and
breaching international agreements. The prevalence of US intervention on behalf
of missionaries arrested abroad can be attributed to the specific case of
religiously-motivated charity, in which restriction of the activity on
religious grounds can interfere with the realization of other categories of
rights, notably the right to freedom of conscience. In light of the US
government’s multiple international interventions to restore the religious
rights of its detained citizens, one could cite the 1940 court ruling for Reid
v. Covert which “reject[s] the idea that, when the United States acts
against [or for] citizens abroad, it can do so free of the Bill of Rights,” and
other legislation detailing the rights promised to US citizens in the country (Reid
v. Covert). While the US legal structure offers strong protection of the
religious rights of its citizens, the changing character of its rulings
regarding proselytism and its unclear stance regarding intervention on behalf
of detained citizens necessitates the development of a new policy that
specifies and qualifies the right of American missionaries to proselytize in
foreign, third-world countries.
In order to grant necessary respect for freedom of conscience
(embodied in the delivery of humanitarian aid) and religious rights
(fulfillment of the foundational religious practice of proselytism), and ensure
that both rights are carried out with the greatest possible freedom, I propose
the development of a US foreign policy tailored to the distribution of
humanitarian aid in third world countries by American missionaries. Above, I
have established that charitable activities have been associated with the
practice of evangelism, to the extent that the former practice is almost
indistinguishable from the latter. However, it is necessary for the two practices
to be seen as distinct activities, the conscientious act of aid-giving to the
people of third world countries being one that is universally protected under
the right to freedom of conscience and proselytism being a public manifestation
of the donor’s religion. With this distinction in mind, religious groups should
have the ability to engage in both aid-giving and proselytism, so long as the
intention to proselytize is not merged with the intention to provide aid; in
clearer terms, one’s agenda for evangelism cannot interfere with the successful
delivery of aid or become a condition necessary for the people in a third world
country to receive aid. It is important to note that this distinction does not
prohibit American missionaries from accomplishing religious proselytism, but
instead states that the evangelistic intention should not be manifested in the
act of distributing humanitarian aid. A foreign country may be opposed to
foreign missionaries delivering charity, or the potential for such groups to
focus on an intention to proselytize. In that case, the United States
government must consider the environment and take regulatory measures which
constrain the ability of American missionaries to disseminate aid in particular
countries. Rather than imposing an unlawful restriction on missionaries’
religious rights, this measure identifies the favorable environments in which
religious groups can complete their charitable activities without fear of
arrest. It will then be within the best interest of missionary groups to act
according to the recommendations of the US government and respect the norms of
the foreign countries in which they do practice by making a careful distinction
between the act of aid-giving and proselytism. By upholding their role in the
agreement with the US government and the international community, American
missionaries such as Kenneth Bae will be compelled to pay keener attention to
the international and diplomatic impacts of their activities.
Conclusion
When American citizen Kenneth Bae was arrested in 2012
while leading a tour of the DPRK, the immediate public outcry over the sentence
raised important questions regarding the DPRK’s reaction to Mr. Bae’s
activities. While working in and delivering humanitarian aid to orphanages
during previous trips to North Korea, Mr. Bae’s acts of charity were protected
under the universal freedom of conscience; one can surmise that his attempts to
fulfill the underlying evangelistic intention were seen to be problematic by
the North Korean regime, leading to his imprisonment. The United States
celebrates a tradition of religious liberty, and it was in this environment
that Mr. Bae’s determination to travel to North Korea for evangelistic purposes
took root, though it ultimately clashed with the religious norms established by
the DPRK. I have proposed the establishment of the above policy to guide US
actions in cases such as that of Mr. Bae, in light of the significant
consequences that US intervention has had on the national foreign policy.
Inevitably, any new policy will face opposition and difficulty in
implementation and enforcement, especially when no such law has previously been
established as a precedent. It is my hope that the above legislation will more
clearly frame the issue of evangelism and humanitarian aid to third-world
countries, while taking into consideration the greater context of US
international relations.
