Religion, Secular Beliefs and Human Rights: 25 Years After the 1981 Declaration (Studies in Religion, Secular Beliefs and Human Rights)

Religion, Secular Beliefs and Human Rights 25 Years After the 1981 Declaration

STUDIES IN RELIGION, SECULAR BELIEFS AND HUMAN RIGHTS VOLUME 2

Religion, Secular Beliefs and Human Rights 25 Years After the 1981 Declaration By

Natan Lerner

MARTINUS NIJHOFF PUBLISHERS LEIDEN • BOSTON 2006

Library of Congress Cataloging-in-Publication Data Lerner, Natan. Religion, secular beliefs, and human rights : 25 years after the 1981 declaration/Natan Lerner. p. cm. -- (Studies in religion, secular beliefs, and human rights, ISSN 1871-7829; v. 2) Includes bibliographical references and index. ISBN-13: 978 90 04 15209 0; ISBN-10: 90 04 15209 1 (hardback: alk. paper) 1. Human rights—Religious aspects. 2. Religion and international affairs. 3. Freedom of religion (International law) I. Title. II. Series. BL65.H78L48 2006 323.44'2–dc22 2006044033

ISSN 1871-7829 ISBN-13: 978 90 04 15209 0 ISBN-10: 90 04 15209 1 © 2006 Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. PRINTED IN THE NETHERLANDS

For Bertha, Lidia, Rut, Ana, and Isar, and my grand-children Roni, Gil, Ziv, and Keren, with the hope that, in the world in which my grand-children will grow, freedom of religion, all beliefs, and human rights will be fully respected

CONTENTS

Foreword by John Witte, Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

2. The Legal Meaning of Religion and Belief . . . . . . . . . . . . . . . . . . .

5

3. Religious Human Rights under the United Nations . . . . . . . . . . . .

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4. The 1992 UN Declaration on Minorities . . . . . . . . . . . . . . . . . . . .

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5. Regional Protection and Special Arrangements . . . . . . . . . . . . . . .

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6. Protecting Religious Groups and Communities . . . . . . . . . . . . . . .

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7. Proselytism and Change of Religion . . . . . . . . . . . . . . . . . . . . . . . .

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8. Religion and Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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9. A Secular View of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . .

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10. Religious symbols: How Wide the Margin of Appreciation? The Turkish Headscarf Case, the Strasbourg Court, and Secularist Tolerance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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11. State and Religious Communities: The Case of Israel . . . . . . . . . .

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12. Bilateral Arrangements: The Holy See and Israel . . . . . . . . . . . . .

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Concluding remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair.” Charles Dickens opened his Tale of Two Cities with these famous words to describe the paradoxes of the eighteenthcentury French Revolution fought for the sake of “the rights of man and citizen.” These same words aptly describe the paradoxes of the twentieth-century world revolution fought in the name of human rights and democratization for all. The world has entered something of a “Dickensian era” in the past three decades. We have seen some of the best of human rights protections inscribed on the books, but some of the worst of human rights violations inflicted on the ground. We have celebrated the creation of more than thirty new constitutional democracies since 1980, but lamented the eruption of more than thirty new civil wars. We have witnessed the wisest of democratic statecraft and the most foolish of autocratic belligerence. For every South African spring of hope, there has been a Yugoslavian winter of despair, for every Ukrainian season of light, a Sudanese season of darkness. These Dickensian paradoxes of the modern human rights revolution are particularly striking when viewed in their religious dimensions. On the one hand, the modern human rights revolution has helped to catalyze a great awakening of religion around the globe. In regions newly committed to democracy and human rights, ancient faiths once driven underground by autocratic oppressors, have sprung forth with new vigor. In the former Soviet bloc, for example, numerous Buddhist, Christian, Hindu, Jewish, Muslim, and other faiths have been awakened, alongside a host of exotic goddess, naturalist, and personality cults. In post-colonial and post-revolutionary Africa, these same mainline religious groups have come to flourish in numerous conventional and inculturated forms, alongside a bewildering array of Traditional groups. In Latin America, the human rights revolution has not only transformed long-standing Catholic and mainline Protestant communities but also triggered the explosion of numerous new Evangelical, Pentecostal, and Traditional movements. Many parts of the world have seen the prodigious rise of a host of new or newly minted faiths—Adventists, Bahi’as, Hare Krishnas, Jehovah’s Witnesses, Mormons, Scientologists, Unification Church members, among many others—some wielding ample material, political, and media power. Even in modern day Israel, Natan Lerner shows us, new religious movements have added to an already surprisingly wide religious pluralism.

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One cause and consequence of this great awakening of religion around the globe is that the ambit of religious rights has been substantially expanded. In the past three decades, hundreds of major new statutes, cases, and constitutional provisions on religious rights have been promulgated in nation-states—many replete with generous protections for liberty of conscience and freedom of religious exercise, guarantees of religious pluralism, equality, and nondiscrimination, and several other special protections and entitlements for religious individuals and religious groups. These national guarantees have been matched by a growing body of regional and international norms that have expanded the important religious rights provisions of the 1948 Universal Declaration of Human Rights and 1966 International Covenant on Civil and Political Rights—most notably the 1981 UN Declaration on Religious Intolerance and Discrimination Based Upon Religion and Belief, the 1989 Vienna Concluding Document, and the 1992 UN Declaration on Minorities. On the other hand, this very same world human rights revolution has helped to catalyze new forms of religious and ethnic conflict, oppression, and belligerence that have sometimes reached tragic proportions. In some communities, such as the former Yugoslavia and Chechnya, local religious and ethnic rivals, previously kept at bay by a common oppressor, have converted their new liberties into new licenses to renew their ancient hostilities, with catastrophic results. In Sudan and Rwanda, ethnic nationalism and religious extremism have conspired to bring violent dislocation or death to hundreds of rival religious believers each year, and persecution, false imprisonment, forced starvation, and savage abuses to thousands of others. In France, political secularism, laicization, and nationalism have combined to threaten a sort of civil denial and death to a number of believers, particularly “sects” and “cults” of high religious temperature or of low cultural conformity. In the United States, political messianism and Christian fundamentalism have intersected to inspire a growing “clash-of-civilizations” ethic that has encouraged bigotry against minorities at home and belligerence against the “axis of evil” abroad. In still other communities, from Asia to the Middle East, Christians, Jews, and Muslims, when in minority contexts, have faced sharply increased restrictions, repression, and martyrdom. And, in many parts of the world today, barbaric Islamicist terrorists have wrapped their cunning belligerence around a distorted and destructive theory of a jihad that is being waged against all manner of religious, cultural, and ethnic enemies, real and imagined. In parts of Russia, Eastern Europe, Africa, and Latin America today, this human rights revolution has brought on something of a new war for souls between indigenous and foreign religious groups. This is the most ironic chapter in the modern Dickensian drama of religion and human rights. With the political transformations of these regions in the past two decades, foreign religious groups were granted rights to enter these regions for the first time in

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decades. Beginning in the early 1990s, they came in increasing numbers to preach their faiths, to offer their services, to convert new souls. Initially, local religious groups—Orthodox, Catholic, Protestant, Sunni, Shi’ite, and Traditional alike—welcomed these foreigners, particularly their foreign co-religionists with whom they had lost contact for many decades. Today, local religious groups have come to resent these foreign religions, particularly those from North America and Western Europe who assume a democratic human rights ethic. Local religious groups resent the participation in the marketplace of religious ideas that democracy assumes. They resent the toxic waves of materialism and individualism that democracy inflicts. They resent the massive expansion of religious pluralism that democracy encourages. They resent the extravagant forms of religious speech, press, and assembly that democracy protects. A new war for souls has thus broken out in these regions, a war to reclaim the traditional cultural and moral souls of these new societies, and a war to retain adherence and adherents to the indigenous faiths. In part, this is a theological war, as rival religious communities have begun to demonize and defame each other and to gather themselves into ever more dogmatic and fundamentalist stands. The ecumenical spirit of the previous decades is giving way to sharp new forms of religious balkanization. In part, this is a legal war, as local religious groups have begun to conspire with their political leaders to adopt statutes and regulations restricting the constitutional rights of their foreign religious rivals. Beneath shiny constitutional veneers of religious freedom for all and unqualified ratification of international human rights instruments, several countries of late have passed firm new anti-proselytism laws, cult registration requirements, tightened visa controls, and various other blatantly discriminatory restrictions on new or newly arrived religions. Indeed, many parts of the world seem to be on a new dawn of Islamic or Christian religious establishment. Such Dickensian paradoxes have exposed the limitations of a human rights paradigm standing alone. They have inspired the earnest search for additional resources to deter violence, resolve disputes, cultivate peace, and ensure security through dialogue, liturgical healing, reconciliation ceremonies, truth commissions and other means. Such Dickensian paradoxes have also underscored an elementary, but essential, point—that human rights norms need a human rights culture to be effective. Human rights norms, including those protecting religion, have little salience in societies that lack constitutional processes that will give them meaning and measure. They have little value for parties who lack basic rights to security, succor, and sanctuary, or who are deprived of basic freedoms of speech, press, or association. They have little pertinence for victims who lack standing in courts and other basic procedural rights to pursue apt remedies. They have little cogency in communities that lack the ethos and ethic to render human rights violations a source of shame and regret,

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restraint and respect, confession and responsibility, reconciliation and restitution. As we have moved from the first generation of human rights declaration following World War II to the current generation of human rights implementation, this need for a human rights culture has become all the more pressing. Such is the state of religion and human rights today that Professor Natan Lerner so ably analyzes on the pages that follow. Professor Lerner has long been one of the masters of international human rights law. He has written several path-breaking studies on the rights of racial, ethnic, and linguistic groups, including two landmark volumes published by Brill’s subsidiary Martinus Nijhoff: Group Rights and Discrimination in International Law (1991, 2d ed. 2003) and The UN Convention on the Elimination of All Forms of Racial Discrimination (1965, 2d ed. 1980). In this new volume, he focuses his expertise on religious rights, or more accurately: (1) the rights of individuals to thought, conscience, and belief and the corresponding rights to assemble, speak, worship, proselytize, educate, parent, travel, or to abstain from the same on the basis of their beliefs; and (2) the rights of religious groups to attain legal status or legal personality in a community and their corresponding rights to corporate property, collective worship, organized charity, parochial education, freedom of press, autonomy of governance, and more. This volume is vintage Lerner—a wise and accessible, lucid and learned, comprehensive and efficient treatment of many of the hardest legal questions on religion and belief that are now facing nation-states and human rights organizations around the world. The chapters analyze and contextualize every relevant provision on religious rights offered by the modern international human rights instruments since the 1948 Universal Declaration of Human Rights as well as selected regional instruments and bilateral treaties and concordats. This feature alone is worth the price of admission. No other book that I know of provides such a penetrating and pithy probing of all the relevant international legal instruments that protect religion and belief. Particularly novel and powerful is Professor Lerner’s treatment of religious group rights, and their many chronic abuses in recent campaigns of ethnic cleansing, national xenophobia, religious establishment, and anti-proselytism. Here, he uses his deep expertise on group rights, racial discrimination, genocide and other forms of international crime to lift up many provisions of the international human rights instruments that have not received sufficient attention from religious rights activists. Also highly valuable is his long chapter on the modern problems of proselytism and conversion in international and domestic law. Here, the legal questions are almost overwhelming: How does the state balance one community’s right to exercise and expand its faith versus another person or community’s right to be left alone to its own traditions? How does the state protect the juxtaposed rights claims of majority and minority religions, or of foreign and indigenous religions? How does the state

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craft a general rule to govern multiple theological understandings of conversion or change of religion—particularly the sharply juxtaposed understandings of Christians who have easy conversion into and out of the faith, and Muslims who have easy conversion into the faith but allow for no conversion out of it? These are not new questions, Professor Lerner shows us. They confronted the drafters of the international bill of rights from the very beginning. But some of the compromises of 1948 and 1966 have today begun to betray their limitations acutely. The chapter includes a number of smart and practical suggestions to tamp down the hottest flashpoints of difference and controversy on this perennially contested issue. The reader cannot help but be troubled by Professor Lerner’s learned critique throughout the volume of the many limitations and compromises that are still betrayed by the international human rights instruments—particularly in the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. While some of the limitations of the 1981 UN Declaration have been offset by subsequent instruments like the 1989 Vienna Concluding Document and the 1992 UN Declaration on Minorities, religious rights remain underdeveloped, and sometimes under attack, in many parts of the world. Even developed countries in Western Europe and North America, which historically played such a vital role in the development of religious rights protections, have shown surprising indifference to religious rights of late. Thus, on this silver anniversary year of the 1981 Declaration, Professor Lerner renews his call for the United Nations to move from a mere declaration on religious tolerance to a binding covenant or convention on religious rights that will help build a better human rights culture dedicated to the full protection of religion and belief. Regional instruments, while valuable, are alone not sufficient, Professor Lerner shows us, to provide the kind of rigorous religious rights protection that is needed. The 1960 American Convention on Human Rights, for example, has had precious little influence on American laws of religious freedom, and has done far too little to blunt the growing clashes among Catholic, Protestant, Pentecostal, and Traditional groups in various Latin American nation-states. Some of the regional human rights instruments of Africa, notably the 1990 Cairo Declaration on Human Rights, give undue preferences to Islam, and these documents have been exploited both by Islamicist nation-states and transnational jihadist groups to visit their prejudices on religious minorities at home and abroad. The 1950 European Charter on Human Rights, in practice, accords such a wide “margin of appreciation” to its member nation-states that religious minorities have fared poorly when they have challenged the secular policies of Turkey, the laicization policies of France or Belgium, or the religious establishment policies of Ireland, Germany, or Greece. The recent Turkish headscarf case before the Strasbourg

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Court, which Professor Lerner analyzes in detail, is only the most recent and most sensational illustration of the limitations of the 1950 Charter in action. This is not to say that regional instruments, bilateral charters, and national constitutions cannot serve effectively to protect religious rights and freedoms. The recent concordats between the Papal See and various nation-states, including Israel, Professor Lerner shows us, are signal examples of forceful and foresightful protections for religious rights and freedoms. Also exemplary are selected judgments of high courts in Australia, India, Israel, Europe, and the United States to which Professor Lerner adverts intermittently throughout the volume. But too many religious minorities remain exposed to local prejudice and to vicious treatment for the world to rest content with this patchwork normative quilt. The world needs a comprehensive binding international instrument to protect everyone’s essential freedoms of religion and belief. Lest any reader think that all this enthusiasm for religious rights is merely an elaborate form of parochial self-service, Professor Lerner makes clear throughout the volume, but especially in chapter nine, that he defends religious rights on non-religious or secular grounds. He respects those who argue for religious rights on and with religious terms, and he recognizes that religious prophets and groups were among the early architects of religious freedom in the past. But he does not think religious rights to be “ineliminably religious” in nature, and does not rest his case on religious conviction and argument alone. To the contrary, he argues that secular rationales are a necessary feature of, and can be a sufficient ground for, the robust protection of a human rights regime dedicated to the protection of thought, conscience, and belief. This is a striking argument and no doubt will be highly controversial for some readers. But it makes the case even more powerful that the world needs a binding universal convention on religious rights and freedom for all, even those who freely eschew religion. I have had the privilege of working with Professor Lerner over the past dozen years, and I have watched him develop a number of the keen insights that are reflected in this volume. This is a man of enormous integrity, humanity, and wisdom, who reveals in his person and in his scholarship the true meaning of excellence, tolerance, and respect for all. The world would be much a better place if we would follow his example and heed the instruction that he offers us in the pages that follow. John Witte, Jr. Director, Center for the Study of Law and Religion Emory University, Atlanta

PREFACE

This is not entirely a new book. In the following pages I have incorporated a large portion of a former book, Religion, Beliefs, and International Human Rights, published in 2000 by Orbis Books, Maryknoll, New York, as part of the Religion and Human Rights Series of Emory University, Atlanta, the editors of which are John Witte, Jr. and Abdullahi Ahmed An-Na’im. I have updated the sections dealing with implementation, summarizing developments of the last five years. I have added to it a number of articles written in different times that have appeared in several journals, as well as some unpublished material. All deal with, or are relevant to, the relationship between religion, beliefs and international human rights, against the background of changes and problems that became central in the 21st century in this area and of the impact that such relationship is having on the world scene. Religion, and secular or non-religious beliefs related to religion, and their interaction with human rights, are not any more a discipline demanding essentially the interest of theologians, philosophers and historians of culture. They are today a major item in any serious and responsible discussion on the factors influencing international affairs, from the legal, political, ideological, social and even security perspectives. Religion, or rather the religions, are a basic dimension in the world of today. The law, international law and human rights law in particular, have to take into consideration that dimension, and to some extent have done it. The treatment of religious minorities, frequently the victims of discrimination and persecution; the confrontation between some regimes and religious groups, and between such groups themselves; the difficulties that religious rights and freedoms are exposed to in different countries and regions; the controversies around what freedom of religion means for individuals and communities, all this is today a subject which governments, international organizations, and legal scholars cannot address any more as a theoretical issue reserved to specialists. It belongs now to the permanent agenda of all those who aspire to influence international life and ensure respect for fundamental freedoms. One of the most disturbing issues on that agenda is the extent to which there is a relationship between religion and terrorism, a complex and dangerous phenomenon demanding the preoccupation of many governments. International organizations have devoted meetings and conferences to this theme, undoubtedly controversial and extremely sensitive for some religious communities and some countries. There seems to be no doubt that religion, or rather religious fanaticism, became a major source of terrorist activity. On

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the other hand, such relation should not become an argument to stigmatize some faiths or their members in an indiscriminate way. This theme plays already a role in international and domestic legislation. Some very grave developments in different geographic areas have even had a strong impact on disciplines such as international criminal law. I have incorporated a chapter on this issue, emphasizing recommendations made at a 2005 OSCE meeting in Vienna. The international community will mark, in 2006, the 25th anniversary of the 1981 United Nations Declaration on the Elimination of Discrimination and Intolerance Based on Religion or Belief. I felt that this is an appropriate date for this publication, although the date is of course mainly a good reason, or pretext, to reiterate, and perhaps add a few more, thoughts relevant to the growing interest that States, peoples, international organizations and nongovernmental world-wide associations are showing in the subject of religion, beliefs and human rights. More specifically, it may also hopefully induce a renewal of the unfinished debate on the scope of international legislation in this respect. As we shall see, the 1981 Declaration, which involves measures of implementation, performed a useful and constructive task in the promotion of religious freedom, the prevention of discrimination based on religion or belief, and the protection of endangered religious communities. The question to be asked is if this is enough, against the background of events in the twenty five years that elapsed since the adoption of the Declaration. The claim may be advanced that it is not enough, and the issue of the adoption of a mandatory treaty inspired by the Declaration should again be raised. Many States that have supported in the past the idea of a convention may feel that they were right and could retake their arguments. Others, and some major religious groups that opposed, for well known reasons, such a treaty may now rethink the matter, in view of the fact that members of such groups, on right or wrong grounds, are now feeling the need to have their religious freedoms stronger protected, with the help of clear-cut, positive provisions of an obligatory treaty widely ratified. The undoubtedly constructive use of the Declaration can however be invoked, as it was in the past, as a justification to preserve the present situation. It can be argued that a Declaration that is being implemented in practice, despite not being mandatory, is preferable to a convention that may be ratified only by a part of the international community and may therefore be not obligatory for States that refuse to ratify the treaty. This is an argument that should not be ignored. But, on the other hand, it belongs rather to the sphere of tactics. As a matter of principle, in this first decade of a new millennium, when international institutions have elaborated and are promoting so many obligatory treaties concerning a wide range of areas of human life, freedoms related to religion should not remain a neglected field.

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Among the complicated subjects related to religion that developed in recent decades is the fascinating controversy around the legitimacy of the use of religious symbols in non-religious environments. To what extent is the ostentation of religious-induced clothing or symbols an indisputable right emanating from freedom of religion? When can they be seen as provocation? What margin of discretion has a state to decide by itself these issues? When can the individual right to express religious affiliation be limited? In some countries – France, Turkey, the United States, Great Britain and others– the subject required judicial determination. International tribunals, like the European Court of Human Rights, have dealt with the matter. I have included in the book – under the title “How Wide the Margin of Appreciation? The Turkish Headscarf Case, the Strasbourg Court, and Secularist Tolerance”– a critical article on a case decided by the European Court of Human Rights in 2004. I found the Court’s ruling inconsistent with prior decisions and contrary to some basic human rights norms concerning the expression of freedom of religion or beliefs. The article appeared in the Willamette Journal of International Law and Dispute Resolution, of the Willamette University College of Law, Salem, Oregon, Volume 13, 2005. The last decades also witnessed the development of international criminal law. An International Criminal Court with worldwide jurisdiction has been established; special tribunals were put in charge of tragic situations in some parts of the world. The interaction between that area of law and the issue of religious freedom cannot be ignored. All these problems have been dealt with by the international community as a whole but also by regional institutions. Some States also felt the need to adopt measures extending their jurisdiction or intervention to situations abroad. This again caused controversy. It is the array of complex and delicate situations like those described that will be addressed in the following pages. The result will not be a strictly coherent and well planned volume. There may be a lack of unity and repetitions. The author, who teaches international law, human rights, and state and religion subjects, felt that it is a timely publication, that responds to the needs of his students and legal scholars, as well as the general public concerned in one way or another with these topics. It starts with a short Introduction, based on the opening remarks of my article in a recent volume on “Facilitating Freedom of Religion or Belief: A Deskbook”, edited by Tore Lindholm, W. Cole Durham, Jr. and Bahia G. Tahzib-Lie (Brill/Nijhoff, 2004). Following is a general overview of the legal meaning of religion and beliefs, as it developed particularly during the United Nations era, with a view to determine the minimum international standards regarding freedom of religion or belief. As said, the 25th anniversary of the 1981 Declaration is an excellent pretext to review its implementation process

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and to continue the already mentioned debate on the necessity and convenience of a mandatory treaty. It may be mentioned that between the Declaration on Racial Discrimination and the adoption of a Convention on the subject only very few years elapsed; in the case of religion, the issues have been more complicated and, a quarter of a century later, the matter is still open, although it must be admitted that a real reconsideration of the subject has not taken place. Religious groups or communities are frequently minorities and, therefore, instruments on the rights of minorities are an essential ingredient in every discussion on freedom of religion or belief. Under the title “The 1992 UN Declaration on Minorities”, I have reproduced a commentary that I have written more than a decade ago, on the 1992 UN Declaration on the Rights of Persons Belonging to Minorities, in Volume 23 (1994) of the Israel Yearbook on Human Rights. This declaration is a modest step forward in the recognition of religious, ethnic and cultural minorities and their protection by international law. Still, it implies improvement in comparison with the approach of Article 27 of the Covenant on Civil and Political Rights. This is a dimension that should not be neglected in an updated discussion on religious freedom. I have also included in this volume a short review essay that I have written for the Journal of Law and Religion, sponsored by the Hamline University School of Law (Vol. XIV, No. 1, 1999–2000), under the title “A Secular View of Human Rights”. I take issue with the views exposed by a distinguished American scholar, Michael J. Perry, in an enjoyable book on the idea of human rights, where he claims that this idea is inescapably religious. My own views, as a “secular enthusiast of human rights”, are based on the conviction that there is an intelligible secular version of human rights free from the need of religious justification, and this is the prevailing view after the second world war, at least from a legal perspective. I have included a full chapter to the issue of proselytism, change of religion, conversion, and international human rights, on the basis of a lengthy article published in 1998 in the Emory International Law Review, Vol. 12, No.1. The question of proselytism was the main obstacle to the adoption of a mandatory treaty on freedom of religion and beliefs, and it may also have the same effect on any renewed attempt to achieve one. The issue became of great international interest after the political changes in the Soviet Union and Eastern Europe, and was frequently discussed in international fora. The reciprocal impact of law and religion is particularly complex in some societies. One of them is the State of Israel. A prominent Catholic author, Robert J. Drinan, S.J., has stressed in a recent book on the balance between religious freedom and international law (“Can God & Caesar Coexist”, Yale University Press, 2004) that the “church-state arrangement in Israel does not fit easily into any single category of religion-state relations.” “The centrality

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of Judaism in Israel must be viewed in line with its Declaration of Independence, which states that “Israel will guarantee freedom of religion and conscience, of language, education and culture.” “The government of Israel—he adds—exemplifies in a unique way the dilemmas facing a new nation whose institutions and laws reflect the international human rights that since 1948 have become customary international law.” “Should Israel–Drinan asks—seek to be a dramatic example of a government that neither subsidizes nor discourages any religious group?” I share Drinan’s view that the case of Israel is a good example of the dilemmas and difficulties surrounding the law and religion relationship. I have therefore incorporated in the book a paper on Israel that I submitted to a recent International Conference on the State and Religious Communities organized by the Japanese Association of Comparative Constitutional Law, chaired by Professor Hiroaki Kobayashi of Nihon University. In the same context I thought that it will be useful to reproduce a short article that I have written several years ago on human rights in the bilateral agreement between the Holy See and the State of Israel (12/13 “La Porta d’Oriente”, 1998). I am grateful to the publishers and journals that authorized me to reproduce these earlier articles. I am deeply indebted and grateful to Professor John Witte, Jr., head of the Center for the Study of Law and Religion at Emory University and general co-editor of the series on religion and human rights, which includes the former book largely reproduced in this volume. Professor Witte encouraged me to prepare this new publication and provided me with guidance, constructive criticism, and most valuable advice throughout. It is my hope that this volume, beyond technicalities, will be useful to all those interested in the interaction between religion, secular beliefs, and human rights.

NATAN LERNER Kiriat Ono, Israel

CHAPTER ONE

INTRODUCTION

This section provides an overview of the nature and scope of the minimum standards for freedom of religion or belief in the international community, as regulated by the principal international norms. Although the international community had already addressed racial discrimination, racial hatred, and other human rights issues, the United Nations did not address racial and religious discrimination and intolerance until the early sixties, following a series of anti-Semitic outbursts. The United Nations separated the issues and promptly drafted a declaration and a convention against racial discrimination. However, the United Nations did not draft a declaration regarding religion and belief until 1981. Moreover, it does not appear the United Nations will draft a convention regarding religion and belief any time soon, for reasons discussed hereafter. Scholarly literature regarding human rights was criticized for similarly failing to sufficiently address religion, belief, and related issues. This deficiency has been remedied in recent years. Today, there are a fair number of books and articles that address religion and beliefs and the minimum standards and norms that prevail in the area. Among them, mention should be made, first of all, of two major collective works, Religious Human Rights in Global Perspective, edited by Johan D. van der Vyver and John Witte Jr., in two volumes that were the impressive outcome of an international conference at Emory University in Atlanta in 1996, and Facilitating Freedom of Religion and Belief: A Deskbook, edited by Tore Lindholm, W. Cole Durham, Jr., and Bahia G. Tahzib-Lie. Both collective books have been published by Martinus Nijhoff.1 Religious Liberty and International Law in Europe, by Malcolm D. Evans (1997), Religion and Human Rights: Basic Documents, edited by Ted Stahnke and J. Paul Martin (1998), Freedom of Religion or Belief: Ensuring Effective International Legal Protection, by Bahiyyih G. Tahzib, the result of a 600-page doctoral thesis (1996), Freedom of Religion and Belief: A World Report, edited by Kevin Boyle and Juliet Sheen (1997), and The Influence of Religion on the Development of International Law, edited by Mark W. Janis (1991) also deserve mention. My own Religion, Beliefs and International Human Rights, published in 2000 by Orbis Books, is

1 The following pages are part of my article on The Nature and Minimum Standards of Freedom of Religion or Belief, included in this collective book.

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largely reproduced in the present volume. Numerous articles on the subject have been published in scholarly journals. International organizations have adopted measures intended to guarantee freedom of religion or belief at the global and regional levels. These measures have also had some influence on domestic legislation. The measures address issues such as (1) the nature, scope, and other substantive aspects of freedom of religion or belief, inner- and outer-religious freedoms, the expression and manifestation of the freedom, permissible limitations and derogation of the freedom, and how the freedom clashes or interacts with individual and collective rights, and (2) the procedural aspects available to protect individuals’ fundamental rights of freedom of religion or belief, including freedom from religion. Some countries have unilaterally addressed the second issue, while other countries have entered into special arrangements with churches, religious communities and congregations. With the beginning of a new millenium, the international community’s continued efforts and interest in development, advancement, and technology present the ineluctable question of whether states and inter-state organizations are likewise ready to make additional progress in the area of freedom of religion or belief by, perhaps, adopting a mandatory treaty based on the existing draft or other instruments. Conversely, if the international community sees this next step as premature, undesirable, or risky, the question becomes whether it is possible to agree upon another way to place freedom of religion or belief on equal footing with other basic human rights. None of the several suggestions and proposals to that effect adequately answer why this essential manifestation of human liberty has received less attention than other fundamental rights. Indeed, religion profoundly impacts the state of the world. Tragic events that demonstrate the powerful influence of ethnicity and religion, and in some cases require the intervention of massive international force, are but additional proof that religion plays a weighty role in xenophobia, racism, group hatred, and even territorial changes. Furthermore, religious persecution and conflicts between believers and nonbelievers; between different churches in multi-religious societies; between dominating, protected, or preferred religions and religious minorities; and concerning newly established religions, are all common phenomena. Some even argue that a shift from violence between sovereign states to conflicts between ethnic and religious groups is taking place.2

2 See Susanne Hober Rudolf and James Piscatori, eds., Transnational Religion and Fading States (1997), 3–4. See also Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (1996), which caused considerable controversy.

INTRODUCTION

3

In fact, the problem is so pervasive that the United States, the major political force in the world, considered it necessary to go through the complicated legislative process (legally and otherwise) to enact domestic legislation to protect endangered groups abroad.3 These problems suggest that time is ripe for the international community to give equal attention to freedom of religion or belief. Since the notion of “religion”, and the related notion of secular “beliefs”, are difficult to define in legal terms, and in order to avoid philosophical and ideological controversy, international and human rights law have prescribed a catalog of rights and the means of protecting those rights, under the agreed heading of “freedom of thought, conscience and religion,” rather than defining the freedoms themselves. All of the basic documents refer to these three freedoms. Moreover, most of the developed international norms protect the manifestations or expressions of the freedom of religion or belief.4 A major political confrontation between Western and Communist countries was avoided by inserting “belief ” after “religion.” The terms are intended to refer to both theistic views of the universe, as well as atheistic, agnostic, rationalistic, and other views excluding religion and religious norms.5 In the title of this volume, I have preceded the word “religion” with the adjective “secular”, intended to point out that the reference is to non-religious beliefs concerning religion. Historically, the protection of religious freedom preceded the protection of other rights.6 It commenced with provisions in bilateral treaties modifying the traditional rule cuius regio eius religio, a weak, limited, ad hoc system that only worked in favor of those religious minorities that a signatory state sought to protect, usually on grounds of reciprocity.7 Other states unilaterally extended diplomatic protection to persecuted religious minorities. Still other states 3 See US Department of State, Annual Report on International Religious Freedom (i.a.2002); International Religious Freedom Act 1998, public Law No. 105–292 Stat. 2787 (codified at 22 USC para. 6401 [1998]. 4 Problems exist with regard to new religious movements and sects, an issue that sparked emotional debates in several countries and led some to enact special legislation. The United Nations Special Rapporteurs have dealt with this subject in their reports, as we shall see. On June 22, 1999, the Council of Europe adopted the Parliamentary Assembly Recommendation 1412 (1999) on the illegal activities of sects. The Council considered it “undesirable” to enact major legislation on sects and reaffirmed its commitment to freedom of conscience and religion (ibid.). 5 See Tahzib, Freedom of Religion or Belief, 1–3. 6 See John P. Humphrey, “Political and Related Rights” in Human Rights in International Law, vol. I, ed. Theodor Meron (1985), 171, 176; Karl Josef Partsch, “Freedom of Conscience and Expression, and Political Freedom”, in The International Bill of Rights, ed. Louis Henkin (1981), 209; Paul Sieghart, The International Law of Human Rights (1983). 7 At this stage (the sixteenth century) the abandonment of this traditional rule that the religion of the sovereign should be the religion of everyone under his jurisdiction did not imply the establishment of a general freedom of religion.

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adopted the principle of religious tolerance and promulgated some rules on religious freedom in their legislation.8 The Augsburg (1555), Westphalia (1648), and Vienna (1815) treaties were important stages in this development, showing that the international community was relatively accepting the principle of humanitarian intervention. Such intervention was on pragmatic grounds, however, without any philosophical or legal justification. The period culminated with the French and American Revolutions.9 The next relevant step toward the protection of religious freedom was the unsuccessful, but interesting, regime that developed after World War I based upon Article 22 of the Covenant of the League of Nations, which guaranteed freedom of conscience and religion. Treaties and states’ unilateral statements on religious freedom sought to ensure the protection of national, ethnic, religious, cultural, and linguistic minorities. This protection included individual and collective religious rights. The system failed, however, with the breakdown of the League of Nations, a consequence of the general political situation preceding World War II.10 A completely different treatment of the issue of religious rights was that under the United Nations, after the end of the war. We deal with in detail in coming chapters.

8 On the early developments, see Alessandra Luini del Russo, International Protection of Human Rights (1971). See also Evans, Religious Liberty and International Law in Europe, 42. On religious rights and minorities, see the respective chapters, below. 9 On religious rights under domestic law, see Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, U.N. Doc. E/CN.4/Sub.2/200/rev.1, U.N. Sales No. 60.XIV.2 (1960). 10 We refer to this regime below.

CHAPTER TWO

THE LEGAL MEANING OF RELIGION AND BELIEF

Modern human rights law has sought to avoid much philosophical controversy by asserting that the terms religion and belief are meant to refer to both theistic views of the universe, as well as atheistic, agnostic, rationalistic and other convictions where religion and belief are absent. Because religion, in general, has been too hard to define, the United Nations has adopted instead a catalog of rights in the sphere of religion, under the heading of freedom of thought, conscience, and religion. The same approach has been followed in regional human rights instruments. None of the international and regional instruments addressing the freedom of rights of religion has attempted to define religion.1 Religion Some legal dictionaries have attempted to define the term religion more precisely. Stroud’s Judicial Dictionary, for example, provides the following description: “The essential elements of religion arc belief in and worship of God.” Here, the distinction between religion and belief is absent. Stroud’s further asserts that “religion and ethical principles must not be confused, for religion is concerned with man’s relation to God, ethics with man’s relation to man.”2 By comparison, Black’s Law Dictionary defines religion as “a [human’s] relation to Divinity, to reverence, worship, obedience, and submission to mandates and precepts of supernatural or superior beings. In its broadest sense [religion] includes all forms of belief in the existence of superior beings exercising power over human beings by volition, imposing rules of conduct, with future rewards and punishments.”3 These and similar dictionary definitions of religion contain several common elements. All incorporate the recognition of the existence of a Supreme Being, usually called God. The nature and power of this being differ from one religion to another. For all religions God has a normative function, and believers are expected to follow God’s teachings and rules of conduct. This may 1 David Little, “Tolerance, Equal Freedom, and Peace: A Human Rights Approach,” in The Essence of Living in a Free Society, ed. W. Lawson Taitte (1997), 151–90, refers to all fundamental beliefs as being covered by the 1981 Declaration. 2 Stroud’s Judicial Dictionary, 5th ed. (1986), 2218. 3 Black’s Law Dictionary, 6th ed. (1990), 1292.

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include a duty to propagate these teachings and rules among others in order to persuade them to accept the teaching as true. Believers are also expected to express their religious convictions in varying forms of worship or cult. Generally, though not always, a church or other institution is established to organize the cult or worship. A number of courts, particularly in the United States, have also attempted to define the outer limits of religion for constitutional purposes. In its early years the United States Supreme Court stressed the need for a relationship of humans to some Supreme Being. More than one hundred years ago the Court defined religion as a term that “has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter.”4 In Torcaso v. Watkins (1961), the Court gave wider scope to the legal term religion—now including Buddhism, Taoism, Ethical, Cultural, and Secular Humanism among protected religious beliefs.5 This trend, however, has its limits. As the Court asserted in Wisconsin v. Yoder (1972): “Ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”6 In United States v. Seeger (1965) and Welsh v. United States (1970), the Supreme Court affirmed this broad approach regarding religious diversity and plurality.7 Specifically, the Court determined that the First Amendment religion clause forbade the legal distinction between “religions based on a belief in the existence of God as against those religions founded on different beliefs.”8 In subsequent years the Court “moved in the direction of a functional definition of religion, stressing the ultimate concern of individuals. . . . The resulting bifurcated definition of religion fairly accommodates the individual’s liberty of belief within the confines of the affirmative secular state.”9 In Malnak v. Yogi (1979) the United States Court of Appeals for the Third Circuit asserted that in order to meet the definition of religion, a belief must (1) address fundamental and ultimate questions; (2) be comprehensive in Davis v. Beeason, 133 U.S. 333, 342 (1890). 367 U.S. 488(1961). 6 Wisconsin v. Yoder, 406 U.S. 205, 215–216 (1972). 7 Respectively 380 U.S. 163 (1965); 398 U.S. 333 (1970). 8 Torcaso v. Watkins, 367 U.S. 488, 495 (1961). 9 Note, “Towards a Constitutional Definition of Religion,” Harvard Law Review 91 (1978): 1056–89, at 1089. For a general discussion of religious rights see John Witte Jr., Religion and the American Constitutional Experiment (1999); Wojciech Sadurski, “On Legal Definitions of Religion,” Australian Law Journal 63 (1989): 834–843 (commenting on the Church of New Faith case decided by the Australian High Court and favoring a bifurcated definition that would permit reading the same word differently in the non-establishment and free exercise clauses). See also Michael S. Ariens and Robert A. Destro, Religious Liberty in a Pluralistic Society (1996), 947–995. 4 5

THE LEGAL MEANING OF RELIGION AND BELIEF

7

nature and not an isolated teaching; and (3) present formal and external signs analogous to recognized religions, such as services, ceremonies, clergy, organizational structure, efforts at propagation, observation of holidays, and manifestations similar to those of traditional religions.10 The existence of these conditions would permit a distinction between generally accepted religions and some beliefs or sets of ideas that may claim to be religious but fall short. The nature and scope of each religious tradition determine the emphasis it places on certain aspects of existence and human behavior. All religions prescribe norms by which their adherents should conduct their personal, familial, and social lives. In some cases the norms imply a profound identification between the individual and the creed and preclude an easy change of religion. Belief Belief is a broader concept than religion. It includes religion but is not limited to its traditional meaning. Belief has been defined legally as a “conviction of the truth of a proposition, existing subjectively in the mind, and induced by argument, persuasion, or proof addressed to the judgment.”11 In certain United Nations instruments, the term belief has been adopted to cover the rights of nonreligious persons such as atheists, agnostics, rationalists, and others. The debate that accompanied the inclusion of the word belief in such documents is instructive in identifying the underlying political motivations. U.N. Special Rapporteur Arcot Krishnaswami, in order to limit controversy, considered the phrase religion or belief to include various theistic creeds and beliefs such as “agnosticism, free thought, atheism and rationalism.”12 There are political, philosophical, social, and many other kinds of beliefs. Nevertheless, the term is frequently used in connection with religion or the absence of religion. For example, there may be totalitarian regimes that require full submission of the individual and of the individual’s social group to the beliefs of the system. Nazism, for instance, expected the German individual to identify fully with the Nazi creed in almost religious terms—despite Nazism’s nonreligious, antireligious character.13 Communist and other totalitarian regimes also attempt to control the beliefs of their respective peoples.

Malnak v. Yogi, 592 F.2d 197, 207–210 (3d Cir. 1979). Black’s Law Dictionary, 6th ed. (1990), 155. 12 Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices (1960), 1 n.l. See also David Little, “Tolerance, Equal Freedom, and Peace: A Human Rights Approach”, in The Essence of Living in a Free Society, ed. W. Lawson Taitte (1997), 10. 13 On the imposition of beliefs such as folkish state and the Fuhrerprinzip, see William L. Shirer, The Rise and Fall of the Third Reich (1960). 10 11

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Human rights law has thus far avoided a definition of religion, except to ensure that it includes the concept of belief. As John Witte Jr. has noted, “This capacious definition of religion in international law has left it largely to individual states and individual claimants to define the boundaries of the regime of religious rights.” Unfortunately, individual legislatures “embrace a bewildering array of definitions of religion.”14 The U.N. System As shown in the following pages, the system of the Universal Declaration of Human Rights has been adopted by other legal texts. It refers to the three basic freedoms: thought, conscience, and religion. Instead of a specific definition, positive human rights law contains a catalog of rights and duties and ways of protecting them. It determines the reach and limits of rights related to religion and belief, and it formulates rules to regulate relations among religions, churches, the state, and individuals. Much is left to the discretion of each constitutional and legal system and to particularized judicial interpretation and legal thought. The three basic freedoms are mentioned in all the relevant human rights instruments, both globally and regionally. Nevertheless, these freedoms do not have identical weight as legal notions.15 Freedom of thought and freedom of conscience16 can be considered more philosophical than legalistic. Both freedoms emanate from the most internal and intimate sphere of human existence. Freedom of conscience can sometimes be legally violated or restricted. Freedom of thought, on the other hand, can only be violated or affected by complicated and sophisticated means of acting upon the human mind. Freedom of religion in a strict sense includes freedom of belief and freedom from religion, which can be understood as the right not to be coerced into accepting religious norms or behavior. These and related freedoms—including the freedoms of expression, association, teaching, and so forth—must be interpreted in light of the attempt to define religion, an attempt that has not yet produced a consensus.

14 John Witte Jr., “Introduction,” in Religious Human Rights in a Global Perspective: Religious Perspectives, ed. John Witte Jr. and Johan D. van der Vyver (1996), xxiv. 15 See detailed sources and discussion in chapter 1. 16 Freedom of conscience is frequently related to what is called conscientious objection, a subject that exceeds the area of religion alone and has engendered abundant case law in many countries. The Human Rights Committee related the issue of freedom of conscience to the right to manifest one’s religion or belief. General Comment No. 22(48) (Article 18), U.N. GAOR Hum. Rts. Comm., 48th Sess., Supp. No. 40, para. 11, U.N. Doc. A/48/40 (1993).

THE LEGAL MEANING OF RELIGION AND BELIEF

9

Once we agree that a legal definition of religion is difficult to achieve, we can appreciate the importance of setting a catalog of rights and duties in clarifying the notion of religion. The elaboration of such a catalog requires a delineation among the three manifestations of such rights. In other words, we must ask whether we are dealing with individual rights, collective rights, or rights of the religious group, community, or congregation. We must also ask whether these rights—individual, collective, and group—warrant protection by domestic and international law. Positive replies to these questions are vital. Freedom of religion—no matter how religion is defined—is undoubtedly a basic right of each human being, irrespective of group membership. It seems proper to locate this right high on the list of basic rights. Nevertheless, individual religious rights cannot be viewed in isolation, as certain religious practices require group participation. For example, there may be a need for a minimum quorum in order to pray. There may be a need for a leader or priest. There may be a need for the use of religious articles that cannot be provided by the believers themselves—a special installation such as a church, synagogue, or mosque, special furniture, prayer books, and the like that can only be produced or acquired collectively or by an organized institution. In other words, religion is a right belonging to individuals, several persons jointly, or an established group. Sometimes these rights are complementary. Sometimes they conflict. When this happens, individual religious rights may be compromised and require further legal protection.17 A catalog of religious rights is therefore essential. United Nations instruments provide such a catalog on a global level, as illustrated by Article 18 of the 1948 Universal Declaration of Human Rights; Articles 18, 20, 26, and 27 of the 1966 International Covenant on Civil and Political Rights; Article 6 of the 1981 Declaration on Intolerance and Discrimination Based on Religion or Belief; and concurring articles in other global and regional texts. Constitutional law may qualify or even modify such provisions. The pertinent international law will be discussed in the following chapters. Sects or New Religious Movements The fact that international human rights instruments provide no definition of religion has created confusion regarding the concepts of sect and new religious movements.18 Special Rapporteur Amor observes that although the denotation

17 On individual, collective, and group rights, see Natan Lerner, Group Rights and Discrimination in International Law (2nd ed., 2003). 18 See the report submitted by Abdelfattah Amor, special rapporteur on Freedom of Religion and Belief to the Commission on Human Rights, U.N. ESCOR, 54th Sess., Agenda Item 18, at 28, U.N. Doc. E/CN.4/1998/6 (1998).

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of sect was originally neutral and meant a community of individuals constituting a minority within a religion that decided to split from that religion, “it often now has a pejorative connotation so that it is frequently regarded as synonymous with danger, and sometimes a non-religious dimension when it is identified with a commercial enterprise.”19 Professor Amor has recommended further study of the problem with the hope that the terms religions, new religious movements, and commercial enterprise can be better clarified. In his report on a visit to Germany in 1997, during which he had consultations with the Bundestag Study Commission on sects and psycho-groups, as well as with associations of victims of sects, Professor Amor noted the competition between traditional religions and “a multitude of new groups and communities claiming the status of religions.”20 Reports on the abusive exploitation of followers of such sects, he observed, created a public alarm, especially when the public learned of those cases involving collective suicides. Such developments provoked state intervention, including the establishment of parliamentary commissions in Germany, Belgium, France, and other countries. The Church of Scientology, described as both a sect and a commercial enterprise, received special mention in commission reports. The special rapporteur made a distinction between “sects” and “psycho-groups.” Some sects, he observed, are propagators of a religion, while others are not. In order to avoid intolerance, he therefore advised caution when criticizing such groups. Religious organizations, in fact, have complained about the risk of being equated with sects. This has been a particular problem in Germany since the mid-1970s. In response, the German government, concerned that its youth was prone to antisocial behavior and dependency, launched an information and education campaign. Victims of sects created associations that were aimed at trying to avoid the abuses of the freedom of religion and belief, while acknowledging “the need to regulate the psychotherapy market, where financial motives were often concealed under a religious label.”21 Representatives of the Church of Scientology claimed that its group was a religion and fell within the international definition formulated in United Nations studies. Furthermore, the Church of Scientology claimed that it, in fact, was the victim of discrimination and persecution.22 In his conclusion, Professor Amor referred to the highly emotional international debate on sects or new religious movements and to a total confusion in

19

Ibid. See Report by Amor, U.N. Doc. E/CN.4/1998/6/Add.2. 21 Ibid., 14. 22 Ibid., 16ff. The authorities, on their part, alleged that Scientology was a commercial enterprise, as established by a German Federal Labor Court, and all measures taken were according to law. 20

THE LEGAL MEANING OF RELIGION AND BELIEF

11

which all groups and communities in the field of religion and belief are generally considered to be dangerous and using religion for other ends, whether financial or criminal. Nevertheless, most religious communities in Germany consider themselves to be free to exercise their religious rights. The special rapporteur still recommended a campaign to develop awareness among the media, which he believes distort stories involving religion and belief. He also proposed legislation that would make punishable any writings or statements that foment hatred.23 While this book was being written, the French government passed a decree establishing an Interministerial Commission for the Fight against Sects. The goal of this decree is to analyze the phenomenon of sects and encourage additional research about sects. The decree also encourages the public to improve its selfawareness and take necessary measures to counteract any actions by sects that would threaten public order.24 Other European governments have been examining similar measures that would contain the influence of sects without endangering freedom of belief. Debates have taken place throughout Europe, and the judiciary branches of some countries have been asked to make legal determinations about certain sects. Outside Europe, mainly in the United States, a similar debate involving legal scholars and theologians has been taking place.25 The debate involving sects, cults, or new religions is obviously a delicate matter. It has already caused considerable confusion and in some cases has generated a climate of suspicion or even manifest or latent intolerance within society.26 Measures taken against the Church of Scientology in Germany have been compared with the measures taken against Jewish people in Nazi Germany. The raising of such emotions, if nothing else, may create a good reason to renew the discussion on what is a workable and universal legal definition of religion and belief. Until such time, sects remain prone to regulation, even though such regulation is difficult to effectuate.27 The Council of Europe took note of such difficulty in a recommendation under the title “Illegal Activities of Sects.” The Parliamentary Assembly of the council considered that “major legislation on sects was undesirable” and might “interfere with the freedom of conscience and religion” as well as “harm traditional religions.”28

23

Ibid., 21 ff. Decree No. 980–890. A French parliamentary commission investigated the issue earlier. 25 See Time ( January 27, 1997), which contains several articles on the issue. 26 Report by Amor, E/CN.4/1998/6/Add.2, at 23. 27 The Oslo Declaration on Freedom of Religion or Belief, adopted on August 11–15, 1998, at a conference convened under the auspices of the Norwegian government, for instance, does not refer to the problem of sects. For the text, see Helsinki Monitor 9 (1998): 101, and appendix 16 herein. 28 Recommendation 1412 (1999), adopted on June 22, 1999, and published in the Official Gazette of the Council of Europe. 24

CHAPTER THREE

RELIGIOUS HUMAN RIGHTS UNDER THE UNITED NATIONS

During the United Nations era four major instruments have responded globally to human rights issues related to religion and belief: (1) the 1948 Universal Declaration of Human Rights; (2) the 1959 Arcot Krishnaswami Study; (3) the 1966 International Covenants on Human Rights; and (4) the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. In addition, there have been several general texts and related instruments prohibiting discrimination. This chapter will analyze the religious human rights provisions in these instruments, with some reference to domestic legislation and jurisprudence.

The Universal Declaration of Human Rights The Universal Declaration of Human Rights, adopted by General Assembly Resolution 217 A (III) of 10 December 1948, has a number of provisions relevant to religious human rights. Article 2 forbids distinctions of any kind, including religion, in the enjoyment of the rights and freedoms set forth in the Declaration. Article 26 refers to religious groups and covers the right of education. Article 29, which addresses the limitations in the exercise of the proclaimed rights, is also relevant to those interested in protecting religious rights. The most crucial provision of the Universal Declaration on religious rights is Article 18, which states: 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 greatly influenced the texts incorporated in the 1966 Covenants, and was influential in regional treaties and the 1981 Declaration, which will be discussed below. Nehemiah Robinson, in his classic commentary on the declaration, divided Article 18 into two parts: the first clause guarantees the right to freedom of thought, conscience, and religion; the second enumerates the specific rights included therein. This second part is not exhaustive. It only

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contains those rights that the United Nations thought essential to include because their observance might not be universal at present.1 Robinson understood that freedom of thought is a broad category. In his interpretation, it included the right to profess a religion or to profess none— in other words, the right to believe or not to believe. To Robinson, the freedom of thought included two other freedoms: freedom of conscience and freedom of religion, which were explicitly mentioned “in order to leave no doubts” in the minds of the peoples of the world, as it may be deduced from the travaux preparatoires. Freedom of conscience was not seen at the time as a strictly legal concept, and there was some opposition to its inclusion. On the other hand, the sacred and inviolable character of freedom of thought, in the words of Rene Cassin, allowed it to be understood as part of the vernacular of different legal systems.2 The term belief has a particular meaning in the declaration. Its inclusion in Article 18, and in similar articles in other instruments, should be interpreted strictly in connection with the term religion. It does not refer to beliefs of another character—whether political, cultural, scientific, or economic—all of which deserve protection according to law but do not belong to the sphere normally described as religion. The term belief was incorporated into the declaration to protect nonreligious convictions, such as atheism or agnosticism, and its meaning was clarified during the discussions on subsequent instruments dealing with religious rights. Another difficult problem in the drafting of the Universal Declaration was the recognition of the right to change one’s religion, a right that was denied by some religions and countries. The clause received opposition but, nevertheless, was adopted by a vote of 27 to 5, with 12 abstentions. The acceptance was earned, according to Robinson, on the understanding that the declaration must be universal and that this clause did not represent a specific right but was the consequence of freedom of religion and thought. The drafters of the declaration were aware that there were many controversial issues involved, including apostasy; missionary activities; coercion and enticement; proselytism and its limits; the status of new or young religious movements struggling for recognition; and the social dangers inherent in the practices of certain sects

1 Nehemiah Robinson, Universal Declaration of Human Rights: Its Origin, Significance, Application, and Interpretation (1958), 128ff. See also Martin Scheinin, “Article 18,” in The Universal Declaration of Human Rights: A Commentary, ed. Asbjorn Eide et al. (1992), 263–274; Karl J. Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” in The International Bill of Rights, ed. Louis Henkin (1981), 209–245; John P. Humphrey, “The Universal Declaration of Human Rights: Its History, Impact and Judicial Character,” in Human Rights: Thirty Years after the Universal Declaration, ed. B. G. Ramcharan (1979), 21. 2 Scheinin, “Article 18,” 266.

RELIGIOUS HUMAN RIGHTS UNDER THE UNITED NATIONS

15

using all kinds of manipulations to attract adherents. In chapter 7 I shall deal with these controversies in more detail, especially as many of them continue to demand public and professional attention in many parts of the world. Article 18 makes a mild concession to the rights of religious groups. It refers to everyone’s right to manifest his religion or belief “alone or in community with others.” The words “in community” do not involve a clear reference to religious bodies or institutions; such reference would have been outside the spirit prevailing in the United Nations at that time. Yet, these words suggest that religious rights are more than a strictly individual issue. A right to be exercised in community with others must therefore refer to something more than simply the collection of rights of individuals. The critical role of the Universal Declaration in the development of the legal and political philosophy of the second part of the twentieth century is beyond question. It is one of the most important single legal documents of our time, and most of its contents can now be seen as customary international law. Its impact on domestic law, in the West at least, remains powerful. First Specific Steps: The Krishnaswami Study (1959) It has been rightly asserted that the subject of religious human rights was shunned and neglected more than any other similar subject, perhaps as a consequence of the generally acknowledged fact that no topic has divided humankind more.3 The Subcommission on Prevention of Discrimination and Protection of Minorities decided that one of the first studies ordered by the subcommission should deal with this subject, including a program of action to eradicate religious discrimination. To that end, the subcommission appointed in 1956 a special rapporteur, Arcot Krishnaswami from India. He submitted in 1959 a careful and comprehensive report.4 The study was based on information that appeared in eighty-two country studies analyzed by the author. Krishnaswami was aware of the difficulties involved with such a comprehensive study of religious rights and emphasized that differential treatment meted out to individuals and groups is not always synonymous with discrimination. Sometimes discriminatory practices are to be found in countries where efforts have been made to eradicate discrimination. Conscious of the difficulty in defining religion, Krishnaswami intended the phrase religion or belief to include various theistic creeds, as well as agnosticism,

Warwick McKean, Equality and Discrimination under International Law (1983), 121. Study of Discrimination in the Matter of Religious Rights and Practices, U.N. Sales No. 60.XIV.2 (1960). 3 4

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free thought, atheism, and rationalism. After recognizing freedom of thought, conscience, and religion as a legal right, he distinguished between the freedom to maintain (or change) religion or belief and the freedom to manifest religion or belief. It is the latter that engenders most of the legal problems. Krishnaswami anticipated some of the problems emanating from the freedom to manifest religion or belief, and he therefore addressed permissible limitations upon the right, the individual and collective aspects of this right, and the public and private need to express this right. While the freedom to maintain (or change) a religion or belief is less prone to restriction, the right to manifest it is often the subject of state regulation and limitations. Krishnaswami stressed that the followers of most religions and beliefs are members of some form of organization, church, or religious community. Therefore, compulsion to join such bodies (or prevention from leaving) may become an infringement of the right to freedom of thought, conscience, and religion. Prescribed religious procedures or formalities do not necessarily involve such infringement. Nevertheless, Article 18 of the Universal Declaration attempts to guard against coercion. While sanctions against apostasy are rare today, some legal systems adopt the law of a particular religion, and this often leads to delicate legal questions. Freedom to manifest religion or belief, Krishnaswami argued, includes protection of a religion’s words, teachings, practice, worship, and observance. To be legitimate, such manifestations of religion must satisfy the criteria established in Article 29 of the Universal Declaration, should be respectful of religious minorities, and should work to ensure a greater measure of freedom for society as a whole.5 Krishnaswami concluded that the collective aspect of the freedom to manifest religion or belief in the form of freedom of assembly or the freedom of association and organization was especially important, as it was prone to state intervention and regulation. Minorities were, of course, vulnerable, especially when those minorities had religious affinities with those outside the state. The Krishnaswami study included a detailed list of components of the freedom to manifest religion or belief. Some of these could be subject to permissible limitations, as in the case of human sacrifice, self-immolation, mutilation, slavery, prostitution, subversive activities, polygamy, and other practices that may clash with the requirements mentioned in Article 29 of the Universal Declaration. In such cases domestic legislation may only preempt norms adopted in international instruments when the minimum standard rule is not affected. The remaining list of freedoms related to the manifestations of religion or belief included worship, processions, pilgrimages, equipment and

5

Ibid., 18.

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symbols, funeral arrangements, holidays and days of rest, dietary practices, marriage and divorce, dissemination of religion or belief, and training of personnel. Manifestation of religion or belief also included the freedom to forgo acts incompatible with prescriptions of a religion or belief, such as oaths, military service, participation in religious ceremonies, confession, and compulsory medical treatment.6 Krishnaswami devoted a short chapter to showing the possible relationships of a religion to the state. This category included states with either an established church or a state religion; states that recognize several religions; and states that mandate a separation of state and religion. Within this context Krishnaswami discussed the management of religious affairs; the financial relationship between the state and religion; and the duties of public authorities. This is also an area in which local constitutional law may prevail over international rules and where the relationship between the state and religion is profoundly influenced by cultural traditions.7 The study ended with a chapter on trends and conclusions that reflected the circumstances of the period in which it was prepared. In a final footnote Krishnaswami commented on the manifestations of anti-Semitism and other forms of racial prejudice and intolerance that have become the immediate cause of further measures adopted by the international community. He ended his report by enunciating sixteen rules he believed should be approved by the United Nations.8 These rules were the basis of the Draft Principles on Freedom and Non-Discrimination in the Matter of Religious Rights and Practices. This draft was prepared by the subcommission.9 It may be useful to summarize the contents herein. The draft principles are divided into four parts that follow a preamble which proclaims the overall goal of promoting the freedom of thought, conscience, and religion (and eradicating discrimination on the ground of religion or belief ). The principles follow very closely the text of the basic rules, with minor modifications. Part I reaffirms: (1) the right of everyone to adhere, or not to adhere, to a religion or belief, in accordance with the dictates of his conscience; (2) the

6

Ibid., 35ff. John Witte Jr. distinguishes seven principal patterns regarding state and religion: (1) state religions; (2) established churches; (3) state neutrality; (4) state concordats with the Catholic Church (there are also a few similar agreements with other religions, as we shall see later); (5) no official religion; (6) separation of church and state; and (7) protection of legally recognized religious groups. See, John Witte Jr., The State of Religious Human Rights in the World: A Comparative Religious and Legal Study (1993). 8 Study of Discrimination, 63–66. 9 Ibid., 71–74. 7

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prior rights of parents or legal guardians to decide the religion or belief in which their child should be brought up—the best interest of the child serving as the guiding principle; and (3) that no one should be subjected to material or moral coercion to impair his freedom to maintain or to change his religion or belief. The wording of these three principles is slightly different from the wording used by Krishnaswami in his first rule, and it incorporates a fourth principle, the banning of any discrimination based on religion or belief. Part II applies thirteen principles, which serve as a catalog of rights to be ensured to all. According to Part II, each person should be free to comply with the prescriptions of his religion or belief and free from performing acts incompatible with them, particularly as it concerns worship, places of worship, and objects necessary for the performance of rites. The thirteen principles reflecting these basic rules include the following rights: 1. to worship, with equal protection to be accorded to all forms of worship, places of worship, and objects necessary for the performance of rites; 2. to journey to sacred places; 3. to observe dietary practices prescribed by the religion or belief; 4. to acquire or produce materials and objects necessary for the prescribed practices, including dietary practices. When the government controls the means of production and distribution, it shall make those materials or objects available to the members of the religion or belief concerned; 5. to have marriage rites performed in accordance with his religion or belief and not to be compelled to undergo a religious marriage ceremony not in accordance with his convictions; and the right to seek marital dissolution and obtain it solely in accordance with the applicable law, without any discrimination; 6. to have the prescriptions of the religion or belief of a deceased person followed in all matters affecting burial, cremation, or other methods of disposal of the dead, particularly concerning places, symbols, and rites, with equal protection against desecration and interference by outsiders; 7. to have due account taken of the prescriptions of each religion or belief relating to holidays and days of rest; 8. to teach or disseminate his religion or belief, in public or in private; and to be free from being compelled to take religious or atheistic instruction, contrary to his convictions or, in the case of children, to those of their parents or legal guardians; 9. to train personnel or bring teachers from abroad, and to be free from permanent limitations on training abroad; 10. to exemption from compulsory oath-swearing of a religious nature contrary to his convictions;

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11. to exemption for genuine objectors to military service, where it is recognized, to be granted in such a manner that no adverse distinction based upon religion or belief may result; 12. to exemption on similar grounds from participation in certain public ceremonies; and 13. to exemption for priests or ministers of religion from having to divulge information received in confidence in the performance of their religious duties. Part III addresses restrictions. The principles proclaimed in Part I and principles 10 and 13 of Part II shall not be subject to any restrictions. Other freedoms and rights shall be subject only to limitations prescribed by law solely for the purpose of securing the rights and freedoms of others or required by morality, health, public order, and the general welfare in a democratic society. These should be consistent with the principles of the United Nations. According to Part IV, public authorities shall refrain from making distinctions with respect to the right to freedom of thought, conscience, and religion, and prevent individuals or groups from doing so. When there is a conflict between the demands of two or more religions or beliefs, public authorities should try to find solutions reconciling those demands in a manner ensuring the greatest measure of freedom to the whole society. No adverse distinctions should be made in the granting of subsidies or tax exemptions. But the state may impose general taxes to cover the cost of arrangements compensating the taking of property or of the preservation of religious monuments of historic or artistic value. As pointed out, the rules prepared by Krishnaswami and the Principles drafted by the subcommission do not differ in substance and, in some cases, are identical. Rule 16, on the duties of public authorities, is more detailed than Part IV of the Principles, but generally is the same. Many of the Krishnaswami principles have been incorporated into the 1981 U.N. Declaration and in the 1965 Draft Convention still pending before the United Nations. Without a doubt the Krishnaswami study was an important stage in the United Nations work on religious rights and was the first specific step to correct the neglect of religion by the international community. The study will be mentioned frequently in the following pages. The 1966 Covenants on Human Rights The International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted by the U.N. General Assembly on December 16,

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1966, by resolution 2200 A (XXI). They became effective on January 3, 1976, and March 23, 1976, respectively.10 Despite the amount of time that passed between the adoption of the Universal Declaration and the covenants, the 1966 instruments reflect the thinking that inspired the declaration. The legal thought that predominated in the development of group rights in the 1965 Convention on Racial Discrimination, on the other hand, did not influence the covenants, probably because of the modalities of the drafting process. The most relevant provisions in the ICCPR are Articles 18, 20, and 27. Article 18 has four paragraphs. The first paragraph generally follows, with some minor changes, the wording of Article 18 of the Universal Declaration. The covenant does not refer to the right to change one’s religion or belief. Instead it uses milder language, which reflects a compromise. Specifically, it proclaims that the right of everyone to freedom of thought, conscience, and belief shall include freedom to have or to adopt a religion or belief of his choice. There is no doubt, however, that the final text recognizes the right to change one’s religion or beliefs or to abandon a religion and adopt a new one. This liberal interpretation is supported by the discussion made during the preparation of the covenant.11 Article 18(2) of the ICCPR states that no one shall be subject to coercion that would impair his freedom to follow or to adopt a religion or belief of his choice. The term coercion is not defined, but it seems reasonable to infer that it applies to the use of force or threats as well as more subtle forms of illegitimate influence, such as moral pressure or material enticement. Comparatively, the 1981 Declaration contained more detail about the notion of coercion. Article 18(3) addresses limitations and should be read in conjunction with Article 4 of the covenant, which includes other articles that disallow derogation even in times of public emergency.12 In addition, Article 18(3) should be compared with Article 29(2) and (3) of the Universal Declaration. Article 18(3) only permits limitations on the freedom to manifest one’s religion or belief as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedom of others. National security is not listed. Because religion is such a sensitive topic, the text must be interpreted in a restrictive way.

10 For the text of both covenants, see United Nations, Human Rights: A Compilation of International Instruments, at 8,20, U.N. Sales No. E.93.XIV.1 (1983) [here-after Human Rights]. Among the many works on the covenants, see generally Henkin, The International Bill of Rights; Theodor Meron, cd., Human Rights Law-Making in the United Nations (1986); Philip Alston, ed., The United Nations and Human Rights (1992); Dominic McGoldrick, The Human Rights Committee (1991). See also the reports of the Human Rights Committee, published as Official Records of the General Assembly (GAOR), Supplement No. 40. 11 See further discussion in chapter 7. 12 On limitations in the covenant, see Thomas Buergenthal, “To Respect and to Ensure: State Obligations and Permissible Derogations,” in Henkin, The International Bill of Rights, 72–89, and Alexandre C. Kiss, “Permissible Limitations on Rights,” in ibid., 290–310.

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Only manifestations of religion, or religious practices, can be restricted. The freedoms of thought and conscience—and religious ideas not translated into practices—are beyond any restriction. There are virtually no problems regarding the religious practices of the major, well-established religions. Nevertheless, there have been some difficulties with shehitah, the slaughtering of animals according to Jewish tradition (and similar practices of the Santerian religion).13 Also, issues involving the wearing of turbans, skullcaps, or veils or the growth of facial hair have required adjudication. Inevitably, certain religious rites, customs, and rules of behavior clash with public norms, health, or morals, and judicial intervention again becomes necessary. Morality is indisputably the outcome of cultural and historical factors that vary from society to society, and the determination of an international minimum standard may not be equally acceptable to all religions, civilizations, and countries.14 Article 18(4) addresses the liberty of parents and legal guardians to ensure that the religious and moral education of their children is in conformity with their own convictions. This is again a highly sensitive area. The United Nations has recognized that the interaction between religion and education is of great importance, but there has still been difficulty in reaching consensus among several international instruments, including the UNESCO Convention against Discrimination in Education, the 1981 Declaration, and the Convention on the Rights of the Child.15 This area involves issues of both international and constitutional law, and adjudication at the national and international levels frequently has been necessary. For example, the Human Rights Committee in 1978 had to address a complaint submitted by the secretary of the Union of Free Thinkers in Finland against his country. The issue involved teaching history of religion in public schools.16 The committee took the view that such instruction, if given in a “neutral and objective way” and respecting the convictions of parents and guardians who do not believe in any religion, does not violate Article 18 of the covenant.

13 For a United States Supreme Court decision on animal sacrifices according to the Santeria rite, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520(1993). 14 See, inter alia, Donna J. Sullivan, “Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution,” New York University Journal of International Law and Politics 24 (1992): 795–856, at 819–820; Leon Sheleff, “Tribal Rites and Legal Rights,” Israel Yearbook on Human Rights 18 (1988): 153–172; Aviam Soifer, “Freedom of Association: Indian Tribes, Workers, and Communal Ghosts,” Maryland Law Review 48 (1989): 350–383. On religious symbols, see also chapter 10. 15 For the three mentioned instruments, see Convention against Discrimination in Education, in Human Rights, 1:101–107; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, in ibid. 1:122–125; Convention on the Rights of the Child, in ibid., 1:171–173. 16 Hartikainen v. Finland, Communication No. 40/1978, in Selected Decisions of the Human Rights Committee under the Optional Protocol, 1:74–76, U.N. Doc. No. CCPR/C/OP/1, U.N. Sales No. E.84.XIV.2 (1985) [hereafter Selected Decisions].

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Furthermore, Article 20(2) of the ICCPR provides: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Article 20 does not require intent. Its wording was criticized, and several states entered reservations about it. The late Professor Partsch, discussing the changes introduced in the different drafts since 1953, stated that the final text abandoned a previous “balanced compromise” reached in the Commission on Human Rights.17 The Human Rights Committee, on its part, in its General Comment on Article 20, made it clear that states are obliged to adopt the necessary legislative measures prohibiting the actions referred to therein. The prohibitions incorporated into Article 20 are fully compatible with the right of freedom of expression contained in Article 19, the exercise of which carries with it special duties and responsibilities.18 Article 20(2), and similar provisions incorporated in regional treaties and other recent instruments, should be compared with Article 4 of the Convention on Racial Discrimination.19 This provision imposes clear-cut obligations on states to enact anti-incitement legislation, and many states have complied.20 A clash between rights may be involved, as some states fear that provisions prohibiting advocacy of racial or religious hatred may jeopardize other rights concerning freedom of speech and association.21 This fear has manifested itself recently with the issue of hate crimes. The United States Supreme Court,

17

Partsch, “Freedom of Conscience and Expression,” 453–454 n. 75. Report of the Human Rights Committee, U.N. GAOR 38th Sess., Supp. No. 40, Annex VI, at 110, U.N. Doc. No. A/38/40 (1983). 19 For the text of the Convention, sec International Convention on the Elimination of All Forms of Racial Discrimination, Human Rights, 1:66–79. 20 See Committee on the Elimination of Racial Discrimination, Positive Measures Designed to Eradicate All Incitement to, or Acts of, Racial Discrimination, U.N. Doc. No. CERD/2, U.N. Sales No. E.85.XIV.2 (1983). See also Natan Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination (1980). For a model national legislation against racial discrimination and incitement, see Elimination of Racism and Racial Discrimination, U.N. GAOR, 48th Sess., Agenda Item 107, U.N. Doc. A/48/558 (1993). Incitement on religious grounds is not specifically mentioned in this document. 21 See Colloquium, “International Colloquium on Racial and Religious Hatred and Group Libel,” Israel Yearbook on Human Rights 22 (1992), especially articles by Natan Lerner, “Incitement in the Racial Convention: Reach and Shortcomings of Article 4,” in ibid., 1–15, and Rudolf Bernhardt, “Human Rights Aspects of Racial and Religious Hatred under Regional Human Rights Conventions,” in ibid., 17–29. See also Kevin Boyle, “Religious Intolerance and the Incitement of Hatred,” in Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination, ed. Sandra Coliver (1992), 61–71. In 1993 the Committee on the Elimination of Racial Discrimination stated that the prohibition of the dissemination of racist ideas is compatible with the right to freedom of opinion and expression. Report of the Committee on the Elimination of Racial Discrimination, U.N. GAOR 42nd Sess., Supp. No. 18, at 115–116, U.N. Doc. No. A/42/18 (1987). 18

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for example, upheld the constitutionality of state legislation on enhancement of punishment for offenses motivated by racial or religious hatred.22 General Comment of the Human Rights Committee The committee in charge of implementing the Covenant on Civil and Political Rights has also addressed issues related to religious rights. In 1993 the committee summarized its position by issuing a General Comment on Article 18, No. 22 (48).23 The committee felt the need to draw to the attention of state parties the fact that the freedoms of thought and conscience are protected equally with the freedom of religion and belief. Article 18 protects theistic, nontheistic, and atheistic beliefs, as well as the right not to profess any religion or belief. The committee stressed that the terms beliefs and religion are to be broadly construed, rejecting any tendency to discriminate against any religions or beliefs for any reasons, including the fact that they are newly established or represent religious minorities that may be the subject of hostility by a predominant religious community.24 The committee intended to avoid situations in which wellestablished religious groups enjoyed a broader legal recognition and protection than newly formed groups. The committee also attempted to address the right to propagate religious ideas that do not enjoy support of the majority, provided that the propagation of these ideas does not exceed the limits imposed by law. Still, it is necessary to ask how broadly the term belief may be construed. The freedoms of thought and conscience, and the freedom to have or adopt a religion or belief of one’s choice, are protected unconditionally. No one can be compelled to reveal his or her thoughts or be made to adhere to a religion or belief. In this respect the rights proclaimed in Article 18 should be compared to the right to hold opinions without interference as recognized by Article 19(1) of the covenant. This is not the case with the freedom to manifest religion or belief, whether this freedom is expressed individually or in community with others. This freedom, as mentioned in this provision, encompasses a broad range of acts, including ritual and ceremonial acts and practices integral to such acts, such as the building of places of worship, the use of ritual formulas and objects, the display of symbols, and the observance of holy days and days of rest. It also encompasses dietary regulations, clothing

Wisconsin v. Mitchell, 508 U.S. 478 (1993). Report of the Human Rights Committee, U.N. GAOR 48th Sess., Supp. No. 40, Annex VI, U.N. Doc. A/48/40 (1993). 24 Ibid., para. 2. 22 23

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requirements,25 the use of a particular language, and rituals associated with certain stages in life. This freedom also includes the right to choose religious leaders and teachers, establish seminaries or religious schools, and prepare and distribute religious texts and publications. The committee considered it necessary to list the components of the right to manifest religion or belief following the 1981 Declaration and the Krishnaswami study. The detailed listing was not meant to be exhaustive and should be read in conjunction with the restrictions addressed in Article 18(3). Paragraph 5 of the General Comment reiterates the notion that the covenant bars any coercion that would impair the right to replace one’s current religion with another religion or atheistic views. This right to conversion has burdened all stages of the drafting of international instruments dealing with religion. In defining coercion the committee included (1) the use or threat of physical force or penal sanctions, and (2) restrictions on access to education, medical care, employment, or other rights guaranteed by the covenant. The same protection is enjoyed by holders of nonreligious beliefs. The Human Rights Committee also clarified the reach of Article 18(4) with regard to education. Public school instruction related to the teaching of the general history of religions and ethics is permitted if it is given in a neutral and objective way. Public education that includes instruction in a particular religion or belief, on the other hand, is inconsistent with the covenant—unless a provision is made for nondiscriminatory exemptions or alternatives to those who want them. The guarantee of the freedom to teach a religion or belief includes the liberty of parents or guardians to ensure that their children receive a religious and moral education in conformity with their own convictions. 25 These issues have engendered interesting judicial decisions in some countries. See Leon Shaskolsky Sheleff, “Rabbi Captain Goldman’s Yarmulke, Freedom of Religion and Conscience, and Civil (Military) Disobedience,” Israel Yearbook on Human Rights 17 (1987): 197–221. In Goldman v. Weinberger, 475 U.S. 503 (1986), the United States Supreme Court decided that an Air Force regulation on the dress code took precedence over religious traditions. The issue was solved by legislative means. See 10 U.S.C.A. sec. 774 (1988). See also the wellknown Sikh cases Mandla v. Dowell Lee, 1108 All E.R. (Eng. C.A. 1982) and Panesar. Nestle Co. Ltd., 1980 I.C.R. 144 (Eng. C.A.). In France, after contradictory decisions of the Conseil d’Etat, the Ministry of Education, with the support of the teachers’ unions, prohibited in 1994 in public schools the traditional head coverage used by Muslim girls. The ban includes all ostentatious religious identifications, as distinguished from discrete signs such as small crosses, stars of David, or the name of Allah. The issue was described in newspaper articles as a national psychodrama. See Robert Sole, “Derrier le foulard islamique,” Le Monde (September 13, 1994): 1. In Israel, the Supreme Court affirmed a decision of a Christian private school in Nazareth to reject a Muslim girl student who insisted on using the traditional veil. Some cases came before the European human rights bodies. In X. v. United Kingdom, App. No. 7992/77, 14 European Commission of Human Rights Decisions and Reports 234 (1978), the duty of a Sikh motorcyclist to remove his turban and wear a crash helmet was seen as interfering with his religious freedom justified for the protection of public health. See also, below, chapter on the Turkish headscarf case.

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The 1993 General Comment refers to a former General Comment No. 11(19), which determines that state parties are obligated under Article 20 of the ICCPR to enact laws to prohibit advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The committee emphasized that the prohibition of incitement to religious hatred is fully compatible with other basic freedoms. The committee also stressed that Article 18(3) should be interpreted strictly: restrictions not specified in the paragraph are disallowed, even if they are utilized to protect other rights. Additionally, limitations may be applied only for their specific purposes and must be directly related and proportionate to the specific need on which they are predicated. They should not be used for discriminatory purposes or be applied in a discriminatory manner. The freedom from coercion and the liberty of parents and guardians to ensure religious and moral education of their children cannot be restricted. Permissible limitations must be established by law and should be interpreted with a view to protect the rights guaranteed under the covenant.26 Legitimate constraints, such as imprisonment, should not affect religious rights, as far as it is reasonably possible. In the same paragraph, the committee dealt with the delicate notion of morals, a concept that derives from many social, philosophical, and religious traditions. When the freedom to manifest a religion or belief has the purpose of protecting morals, it must be based on principles not derived exclusively from a single tradition. The fact that a religion is recognized as an official state religion, or is the religion of the majority of the population, should not result in any impairment of rights for nonbelievers or adherents of other religions, according to the covenant. Privileges for the members of the predominant religion should be regarded as discriminatory. The committee expects state members to report on measures taken to protect the rights of religious minorities under the covenant and its Article 27. States are also required to provide information regarding practices that are punishable as blasphemy. Blasphemy is not mentioned in existing international human rights instruments but has caused controversy in domestic legislation.27

26

Report of the Human Rights Committee, para. 8. Ibid., para. 9–10. The issue of blasphemy, an offense in some legislations (Britain, Egypt, and Iran, for instance), caused public controversy as a result of the publication in 1988 of Salman Rushdie’s The Satanic Verses in Great Britain. The author was condemned to death by the Khomeini regime in 1989. Restrictions on publications considered blasphemous against the Church of England were declared compatible with Article 10(2) of the European Convention on Human Rights by the European Commission on Human Rights. See Gay News v. U.K., 5 E.H.R.R. 123 (1983). The Bangladesh government has brought criminal charges against the writer Taslim Nasreem for blasphemy. On blasphemy generally, see Leonard W. Levy, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (1993). 27

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Paragraph 11 of the General Comment addresses conscientious objection, a right that is not explicitly mentioned in the covenant. The committee believes that such a right can be derived from Article 18, inasmuch as the use of lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. There shall be no discrimination against conscientious objectors on the ground that they have failed to perform military service. The question of conscientious objection in some cases falls outside the scope of religious rights. Pacifism may be considered a belief, but it is generally of a nonreligious nature. Conscientious and religious may or may not necessarily mean the same thing, as United States and European case law makes clear.28 I have dealt in length with the committee’s General Comment for three reasons: (1) the comment’s intrinsic importance; (2) the authority and influence of the members of the committee who wrote the comment; and (3) the likelihood that the comment will influence the incorporation of religious rights in other modern instruments.29 In addition, the General Comment will likely play a part in determining the scope of domestic legislation and judicial interpretation. The International Covenant on Civil and Political Rights is the only global human rights treaty dealing with religion that contains measures of implementation. As of June 1, 1999,144 states had ratified or acceded to the covenant, and 95 states had become parties to the Optional Protocol on individual communications. The periodic reports submitted by state parties (plus complaints or communications filed by individuals) permitted the Human Rights Committee (which is in charge of implementation) to cover a broad range of human rights issues related to religion. The 1993 General Comment on Article 18 summarized the principal views of the committee in this regard. The yearly Reports of the Committee—issued as General Assembly Official Records (GAOR), Supplements No. 40—contain salient information on religious rights. When examining the periodic state reports, members of 28 See generally, Rafael Palomino, Las Objeciones de Conciencia (1994); Chaim Gans, Philosophical Anarchism and Political Disobedience (1992); Kent Greenawalt, Conflicts of Law and Morality (1987); Joseph Raz, The Authority of Law (1979); Rafael Navarro-Valls and Javier Martinez Torron, Las Objeciones de Conciencia (Torino, 1997). The European Commission on Human Rights dealt with the meaning of conscientious objection in, inter alia, Grandrath v. Germany, 1967 Yearbook of the European Convention on Human Rights 626. The European Convention on Human Rights refers to conscientious objection in Article 4 and not in connection with religion. The U.S. Supreme Court granted exemptions not only on religious premises. In Welsh v. United States, 398 U.S 333 (1970), for instance, the Supreme Court granted such exemption on secular grounds. 29 While the General Comments are neither scholarly studies nor secondary legislative acts, and are couched in general terms, they represent an important body of experience in considering matters from the angle of the covenant. Torkel Opsahl, “The Human Rights Committee,” in Alston, The United Nations and Human Rights, 369–443, at 415.

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the committee were able to ask questions and require additional information regarding the legislation concerning such rights from representatives of the states. For example, when the second periodic report of Morocco was discussed, members asked questions regarding procedures on the recognition of religious sects, the status of the Baha’i faith, marriages between members of different religious groups, and the meaning of terms such as religion of the state, revealed religions, and heretical sects.30 During the consideration of the second periodic report of Austria, members asked questions regarding the issues of conscientious objectors, status of Jehovah’s Witnesses, and criminal-law rules concerning blasphemy.31 The members also scrutinized Colombia’s third periodic report, which provided information on the modifications of the concordat with the Holy See in order to adjust it to the new constitution.32 The members also discussed blasphemy in the United Kingdom;33 apostasy and discrimination against religious minorities in Sudan;34 differences in the treatment of churches in Argentina, Lithuania, and Israel;35 and restrictions on religious rights in the former USSR.36 Almost every country that submitted periodic reports was subjected to some scrutiny. When the initial report of Zimbabwe was considered in 1988, the members had to consider the clash between traditional practices and customary law, on one hand, and provisions of the covenant on the other.37 The committee recommended that practices which were incompatible with the covenant should be prohibited by legislation. A similar discussion took place with regard to Tanzania.38 As for individual complaints or communications, the Human Rights Committee addressed relatively few cases involving religious rights, as compared with other rights. Out of 823 communications involving fifty-six states (submitted until 1998), only a few referred to alleged violations of religious human

30 Report of the Human Rights Committee, U.N. GAOR 47th Sess., Supp. No. 40, at 15–16, U.N. Doc. No. A/47/40 (1994). 31 Ibid., 24–25. 32 Ibid., 89. 33 Report of the Human Rights Committee, U.N. GAOR 46th Sess., Supp. No. 40, at 100, U.N. Doc. No. A/46/40 (1991). 34 Ibid., 127; also, Report of the Human Rights Committee, U.N. GAOR 53rd Sess., Supp. No. 40., at 25, U.N. Doc. No. A/53/40 (1998). 35 For Argentina, see Report of the Human Rights Committee, U.N. GAOR 45th Sess., Supp. No. 40, at 49, U.N. Doc. No. A/45/40 (1990); for Lithuania, see U.N. GAOR 53rd Sess., Supp. No. 40, at 32, U.N. Doc. No. A/53/40(40); for Israel, Ibid., 49. In this respect the committee expressed concern regarding the application of religious law to matters of personal status. 36 Ibid., 26. In its last report before this writing the committee dealt with discrimination on religious grounds in Iraq. Ibid., 21. 37 CCPR/C/74/Add.3. 38 A/53/40, pp. 38–39.

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rights. Most of those related to conscientious objection, education, and equality among churches.39 The Covenant on Economic, Social, and Cultural Rights refers to religious rights, albeit in a more limited way.40 Article 13(1) addresses the need to ensure “understanding, tolerance and friendship among all. . . . religious groups.” Paragraph 3 of the same article refers to the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions. Article 2(2) forbids discrimination of any kind, including religious discrimination. The implementation system of the ICESCR has not been effective. Shortly after the creation of the ICESCR in 1976, a Committee on Economic, Social, and Cultural Rights (composed of independent experts) was established and has been meeting periodically to examine the reports submitted by state parties.41 This committee so far has contributed little to the dialogue on religious rights and the abuse thereof. The United Nations Declaration on Itolerance and Discrimination Based on Religion or Belief The Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief was proclaimed by the General Assembly of the United Nations by resolution 36/55 of November 25, 1981. It is presently the most important international instrument regarding religious rights and the prohibition of intolerance or discrimination based on religion or belief.42 The declaration, as well as the draft convention still pending before the United Nations, originated in response to the outburst of antisemitic incidents that occurred in several places in 1959 and 1960. These were called the swastika epidemics, and many feared a revival of Nazism. The United Nations response to those attacks and the resolutions adopted by the various U.N. organs culminated in the General Assembly resolutions 1780 and 1781 (XVII) of December 8, 1962. These resolutions asked for the 39 Selected Decisions, vols. 1 and 2, in Selected Decisions of the Human Rights Committee under the Optional Protocol, U.N. Doc. CCPR/C/OP/2, U.N. Sales No. E.89.XIV.1 (1990). 40 For the text, see Human Rights, 1:8–19. 41 See generally, Philip Alston, “The Committee on Economic, Social and Cultural Rights,” in Alston, The United Nations and Human Rights, 473–508. 42 For the text, see Human Rights, 1:122–125. For an earlier analysis of the declaration, see Natan Lerner, Group Rights and Discrimination in International Law (2003), 84–108; Donna J. Sullivan, “Advancing the Freedom of Religion or Belief through the U.N. Declaration on the Elimination of Religious Intolerance and Discrimination,” American Journal of International Law 82 (1988): 487–520.

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preparation of twin but separate declarations and conventions addressing the manifestations of religious and racial discrimination and intolerance. The separation between the two subjects was the result of lobbying by third-world countries who wanted to adopt a document on racism, but were largely indifferent to religious discrimination, and of international politics, the Cold War, the Arab-Israeli conflict, and the issue of anti-Semitism in the Soviet Union.43 Some delegates took the view that there was a theoretical difference between religious sentiments, on the one hand, and prejudice, hatred, or discrimination against people of a different race or color, on the other. In any case the result was a speedy preparation of the instruments on race and slow progress on issues of religious discrimination and intolerance. In 1965 the General Assembly requested that the relevant U.N. bodies try to complete the preparation of both a declaration and convention on religion. Some work was done on both, but in 1972 the General Assembly decided to give priority to the draft declaration. In practice, this meant postponing indefinitely the adoption of a mandatory treaty, despite the fact that a draft, which will be summarized below, was in the process of being developed. Additional work was slow to develop and consisted mainly of the activities of a working group appointed by the Commission on Human Rights. Finally, in 1981, after tenacious efforts, the Commission on Human Rights completed a draft, which was adopted by a vote of 33 to 0, with 5 abstentions. At the Third Committee of the General Assembly the vote in favor was 45 to 0, again with 5 abstentions. In both cases the abstentions were from the representatives of the Communist members of those bodies. Finally, the General Assembly adopted the draft, without a vote, after two decades of procrastination. The decision was preceded by intensive lobbying and pressure from nongovernmental organizations interested in religious human rights and was supported by several governments. Until the very last moment amendments were submitted, and complicated negotiations took place. This showed the inherent complexity and sensitivity of the issue. One of the major problems surrounding the drafting of the declaration was the meaning of the term religion. Communist spokespersons argued that the use of the word religion did not explicitly extend the principle of tolerance to atheistic beliefs. They claimed that it was necessary to ensure full equality of treatment between believers and nonbelievers and that the proposed text was one-sided. On the other hand, Western delegates, in particular the United

43 Lerner, Group Rights and Discrimination. For the reasons of the difference of treatment by the U.N. of the religious issue as compared to other human rights, see also Antonio Cassese, “The General Assembly: Historical Perspective 1945–1989,” in Alston, The United Nations and Human Rights, 25–54, at 37.

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States representative, took the view that the declaration was intended to protect religious human rights, while the rights of persons without a religion, such as materialists, atheists, or agnostics, could find adequate protection in the text. The face-saving solution, which was rather simplistic, was to insert in the Preamble and in Article 1(1) the word whatever before the word belief, yielding “whatever belief.” Another difficult issue was the matter of religious conversion, which is addressed in detail in chapter 7. This issue already created difficulties during the preparation of the Universal Declaration and the covenants. Once more, the main opposition came from the Muslim delegations. The Iranian spokesperson rejected the related provision contained in Article 18(2) of the Covenant on Civil and Political Rights. Indonesia insisted on establishing a clear distinction between conversion resulting from persuasion and that which was the consequence of coercion. The matter was settled by way of a double compromise. Explicit references to the right to change one’s religion were deleted from the text, both in the Preamble and in Article 1, thus representing a departure from the wording used in the Universal Declaration and the covenant. The result was a weakened text, but this was necessary in order to make the change acceptable to the West and avoid jeopardizing the progress achieved in two decades of protracted and difficult negotiations. As part of the accommodation, a new Article 8 was added. It states that nothing in the declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights and the International Covenants on Human Rights. States that did not ratify the covenants may, after this compromise, claim that the right to change one’s religion, although included among the clauses of the Declaration, cannot be afforded the status of customary international law. Nevertheless, there was a great desire to see the draft adopted, and compromise was attainable, especially if it was clear that the right to conversion, although not mentioned explicitly, was not derogated or restricted in the new declaration.

Provisions of the Declaration The difficulties in the drafting of the declaration could already be seen in the discussion about its title. Originally, it was intended to be a Declaration on the Elimination of All Forms of Religious Intolerance, but in 1973 a change was made following an amendment proposed by Morocco in the Third Committee. The purpose of this change was to adjust the title of the draft declaration to that of the draft convention and make it consistent with the wording of the Universal Declaration. The two added words—discrimination and belief— became significant.

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Discrimination, the term used in all the anti-discrimination treaties and declarations, has a clear legal meaning. This is not the case with intolerance, which is vague and lacks exact legal meaning. Intolerance has been used to describe emotional, psychological, philosophical, and religious attitudes that may prompt acts of discrimination or other violations of religious freedoms, as well as manifestations of hate and persecutions against persons or groups of a different religion or belief.44 Nevertheless, the wording of definitional Article 2(2) of the declaration indicates that the terms discrimination and intolerance are actually employed as equivalent. This is not the only case of inadequate drafting in the declaration, but it can be explained, if not justified, by the long preparation process, the many amendments, and the search for compromise. The addition of the word belief was intended to satisfy those who wanted to protect the rights of nonbelievers, such as rationalists, freethinkers, atheists, agnostics, and supporters of other nontraditional philosophies. There were also proposals to include explicit references to the right to conduct antireligious propaganda, but this issue was not pursued. In addition to the change of title many modifications were introduced in the drafts of the Preamble. Many of these modifications were of a semantic nature, but some were meant to address controversial matters of principle and substance. The use of the terms religion and belief once again dominated the discussions. In response to those who tried to protect nonbelievers, some argued that the original purpose of the document was both to ensure equality among the different religions and to protect religious rights. Those who did not believe in any transcendental or normative religion, it was argued, were already protected by the general freedoms prevailing in a democratic society. There was consensus that coercion against nonbelievers must always be prohibited. The final text did not include provisions on incitement. Such provisions existed in the preliminary drafts prepared by the Subcommission on Prevention of Discrimination and Protection of Minorities and the Commission on Human Rights, but never made the final cut. Nevertheless, the pending draft convention contains a clause related to incitement.

44 Webster’s Third New International Dictionary (1986) defines intolerant as “refusing to allow others the enjoyment of their opinion or worship,” and as equivalent to bigoted. Elizabeth Odio Benito, Study of the Current Dimensions of the Problem of Intolerance and Discrimination Based on Religion or Belief, U.N. ESCOR 39th Sess., Agenda Item 13, at 3, U.N. Doc. E/CN.4/Sub.2/1987/26 (1986), states that manifestations of intolerance go in many cases much further than discrimination and involve the stirring up of hatred against, or even the persecution of, individuals or groups of a different religion or belief. In its resolution 48/126, of December 20, 1993, on the 1995 Year for Tolerance, the General Assembly described tolerance as the recognition and appreciation of others, the ability to live together with and to listen to others, and as a sound foundation of any civil society and of peace. U.N. Press Release GA/8637, January 20, 1994, at 382–384.

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The Protected Rights Articles 1 and 6 of the declaration contain a catalog of rights that provide a universally agreed-upon minimum standard in the area of religious human rights. Article 1 generally follows the model of Article 18 of the Universal Declaration and the Covenant on Civil and Political Rights—except for the change of religion clause (as amended in the Third Committee) and the saving provision of Article 8 of the declaration. Consequently, authoritative interpretations of the covenant are applicable to the declaration.45 The declaration uses the term everyone in Article 1, meant to protect nationals and aliens, as well as permanent and nonpermanent residents.46 Paragraph 1 proclaims three fundamental freedoms: the freedoms of thought, conscience, and religion, including whatever belief one chooses. The external manifestations of religion—worship, observance, practice, and teaching—are guaranteed in terms identical to those of the covenant and should be interpreted in conjunction with the rights listed in Article 6 of the declaration. Article 1 (2) prohibits coercion that impairs freedom of religion. But Article 1 (3) allows for limitations on the freedom to manifest one’s religion or belief, if such limitations are prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights of others, as understood in free societies. Serious difficulties may develop when religious rights clash with the notion of morals as interpreted by some countries, and the margin of discretion allowed may differ from country to country. General principles incorporated into human rights law regarding these limitations are also applicable to the declaration.47 It should be kept in mind that Article 18 of the ICCPR, which is referenced by Article 4 of the covenant, represents one of the rights for which no derogation in time of public emergency is permitted. Article 6 provides a concrete list of freedoms of thought, religion, and belief. This list provides a detailed enunciation of the rights that fall within an accepted minimum standard. Some rights are missing, but, on the whole, the list is comprehensive. The list contains the following freedoms: a. the freedom to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; b. the freedom to establish and maintain appropriate charitable or humanitarian institutions; 45 See, inter alia, Partsch, “Freedom of Conscience” and Reports of the Human Rights Committee and its authoritative General Comment on Article 18 of the Covenant, summarized above. 46 Sec Odio Benito, E/CN.4/Sub.2/1987/26, at 37. 47 On several occasions the Human Rights Committee and the European Court on Human Rights dealt with the scope of permissible limitations. The European Court clarified the notion of morals in the Handyside Case, 24 European Court of Human Rights (ser A) (1976). See, below, chapter on the Turkish headscarf case.

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c. the freedom to make, acquire, and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief; d. the freedom to write, publish, and disseminate relevant publications in these areas; e. the freedom to teach a religion or belief in places suitable for these purposes; f. the freedom to solicit and receive voluntary financial and other contributions from individuals and institutions; g. the freedom to train, appoint, elect, or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief; h. the freedom to observe days of rest and to celebrate holy days and ceremonies in accordance with the precepts of one’s religion or belief; i. the freedom to establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels. All these rights are, of course, subject to the limitations mentioned in Article 1(3). Some of them are tied to the constitutional system of the country and are affected by the nature of the relationship between religion and state in that country. Article 6 omitted some rights that the Subcommission on the Prevention of Discrimination and Protection of Minorities included in its early drafts. The omitted rights include the right to establish federations, which would complete the right mentioned in Article 6(b); the right to teach and learn the sacred language of each religion (and to bring teachers from abroad), which is not automatically included in Article 6(e); the right to receive state aid when the state controls the means of production and distribution, a right of crucial importance for those religions implementing dietary prescriptions; the right to obtain religious materials and objects; the right to make pilgrimages to religious sites, either inside the country or abroad; the right not to undergo a religious marriage ceremony that is not in conformity with one’s convictions; and the right to a burial ceremony in accordance with the religion of the deceased person. The subcommission’s draft also included provisions on the legal status of cemeteries, religious oaths, and discrimination by the state when granting subsidies or taxing constituents. Some of the missing rights are listed in the pending draft convention. Article 6 should be compared with principles 16 and 17 of the Concluding Document of the 1989 Vienna meeting of the Conference on Security and Cooperation in Europe, which includes a few of the omitted provisions. The original text of the declaration prepared by the subcommission was strongly influenced by Arcot Krishnaswami’s principles. The final text was strongly affected by the amendments, compromises, and concessions that

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resulted from the long drafting process. Political considerations, as always, played a crucial role, and nongovernmental organizations were active lobbyists. In particular, the issues of religious education and the preservation of certain rites and customs (such as blood transfusions) provoked lengthy discussions. It is important to stress that Article 6 of the declaration addresses individual rights, collective rights, and rights that can only be exercised by a group. Compared to previous instruments, it represents important progress, especially as it anticipates the needs of religious communities or congregations. Many previous U.N. instruments, which focused exclusively on individual rights, failed to address the fact that only groups can establish and maintain places of worship and religious institutions, or appoint religious leaders, or establish federations. Prohibition of Discrimination and Intolerance Articles 2 and 3 of the declaration address intolerance and discrimination based on religion and belief. These articles, influenced by the Declaration and Convention on Racial Discrimination, are affected by similar difficulties, particularly in the way in which the terms discrimination and intolerance are employed. It has already been pointed out that discrimination has a precise legal meaning under international and human rights law while intolerance does not. This leads to vague and inconsistent drafting. For example, Article 2(1) refers to discrimination only. Article 2(2) mentions intolerance and discrimination. The term intolerance is not used at all in Article 3 or Article 4(1), which address measures to be taken by states. Article 4(2) distinguishes between the need to prohibit discrimination and to combat intolerance, a distinction that tries to differentiate between both forms of behavior. As for the declaration, the Convention on Racial Discrimination again serves as the model for the definition of the two words. Under Article 2(2), intolerance and discrimination based on religion or belief means any distinction, exclusion, restriction, or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis. Religious discrimination and intolerance are not limited to public life, as was the case in the Convention on Racial Discrimination. Overall, the text is deficient, particularly since Article 2(1) prohibits discrimination by the state and by institutions, groups of persons, or persons. As Krishnaswami’s study reminds us, however, not every preference based on religion or belief can be considered discriminatory and thus prohibited. For example, a concordat between a state with a predominantly Catholic population and the Holy See may be appropriate. Additionally, many states declare as public holidays the days sacred to the majority of the population; this would

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not be discriminatory if observance of the holy days of the minorities is duly protected, as far as possible.48 More difficult is the case of states that permit only members of a given religion to accede to certain public positions, such as president of the state. Some states, in fact, have an established church or even a state religion. When do such situations become discriminatory?49 As a general rule, no impairment should attach to any person or group in the enjoyment of fundamental freedoms. Otherwise, preferences may constitute discrimination. The given facts and social reality—as well as common sense— are determinative factors. The prohibition of discrimination by institutions or persons also creates problems. For example, religious institutions should be granted some leeway when hiring personnel, mandating dressing habits, or organizing the observance of particular customs. The granting of privileges to members of one religion in given circumstances does not necessarily curtail the basic human rights of others and would therefore not contradict the declaration. Another concern is the possibility of a clash between the recognition of religious rights and societal norms. For example, the clash between religious rights and the prohibition of discrimination based on gender may be irresolvable— and, in fact, has resulted in frequent adjudication. In order to guarantee the observance of the rights proclaimed in the declaration, state action is often necessary. According to Article 4 of the declaration, all states shall take effective measures to prevent and eliminate discrimination on grounds of religion or belief in all fields of civil, economic, political, social, and cultural life, enacting or rescinding where necessary legislation to that effect. States should also take all appropriate steps to combat intolerance on the grounds of religion or belief. Problems arising from the imprecise use of the terms discrimination and intolerance have already been mentioned. Although the meaning of to combat is not explained, it suggests an obligation to adopt criminal law measures against organizations that incite others to practice religious intolerance. Special Rapporteur Elizabeth Odio Benito, in fact, has recommended the adoption of penal laws.50 This may be contrary to the policies of certain countries that are reluctant to limit in any way the freedoms of speech and association.

48 Difficulties arose in the case of elections taking place on days that are holy for some religious minorities in the country who prohibit work and traveling on such days. Flexibility and good will are necessary in such situations, which may be difficult to foresee. 49 Krishnaswami points out that an identical formal relationship between the state and religion may result in discrimination in some cases, but not in others. See the Krishnaswami study, 46. Odio Benito, on the other hand, maintains that the establishment of a religion or belief by the state amounts to preferences and privileges that may be discriminatory. E/CN.4/Sub.2/ 1987/26, at 21. 50 Odio Benito, E/CN.4/Sub.2/1987/26, at 25.

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Article 7 refers to national legislation that would allow everyone to avail himself or herself of the enunciated rights and freedoms. This article, which has been criticized for its vagueness, has been difficult to apply. Article 5, which addresses the rights of the child, is among the most controversial provisions in the declaration. There is a close relationship between religion and education, and the attempt of a religion to influence the child may conflict with the attempt of the parents to raise that child. Article 5 is long, and it fails to clarify important points, such as who would qualify as a child. Article 5 does recognize the right of parents (or legal guardians) to organize their families in accordance to their religion or belief. Furthermore, Article 5 promotes the notion that children should have access to religious education in accordance to the wishes of their parents or legal guardians. The “best interest of the child”—an idea that appears in the Declaration on the Rights of the Child and the Convention on the Rights of the Child but is not mentioned in the covenant51—should be the guiding principle. The proviso “best interest of the child” is intended to limit the freedom of action of parents and legal guardians. Nevertheless, the declaration does not deal with the many questions likely to be raised when the wishes of the parents conflict with the best interest of the child. Moreover, in totalitarian or ideological states, the best interest of the child may be interpreted differently by the educational authorities and the parents of the child. Limitations on parental authority have frequently required adjudication at the domestic and international levels. In general, the child should be protected against religious discrimination. The practices of a religion or belief in which a child is raised should not be injurious to the child’s physical or mental health (Articles 5(5)). The limitations mentioned in Article 1(3) of the declaration, namely, public safety, order, health, or morals or the fundamental rights and freedoms of others, should be taken into account. Evaluation of the Declaration On the whole the 1981 Declaration was an important breakthrough in the struggle to extend international protection to religion. Of course, a declaration is not a treaty and is therefore not binding. Nevertheless, as a U.N. solemn statement it carries weight and gives expression to prevailing international

51 For the texts of the declaration and the convention, see Human Rights 1:171 and 174, respectively. On the subject generally, see Geraldine Van Bueren, The International Law on the Rights of the Child (1995); Lawrence J. LeBlanc, The Convention on the Rights of the Child: United Nations Lawmaking on Human Rights (1995).

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trends. It does have certain legal effects, and it implies an expectation of obedience by members of the international community to the extent that it may be seen as stating rules of customary international law.52 The catalog of rights contained in the declaration is helpful although not complete. The explicit references not only to individual rights or rights to be exercised collectively but also to the rights of the group (or the religious community or congregation) is of monumental importance, especially when compared to other limited international texts. Compromise has been necessary, but Article 8 has made possible the universal acceptance of the declaration. The wording of several articles is unsatisfactory, reflecting the protracted negotiations. Nevertheless, the declaration unquestionably represents progress in a sensitive area of human rights that, in comparison with other rights, had been largely neglected. The Necessity or Possibility of a Convention Some may ask whether the declaration makes unnecessary the preparation of a binding convention on religious human rights. The answer may be inconclusive, particularly if the end result is a treaty that does not fully address substantive rights respecting religion. Nevertheless, concerned nongovernmental organizations have advocated the adoption of a convention. A similar stand was taken by the special rapporteurs, the Subcommission on the Prevention of the Discrimination and Protection of Minorities, and a 1984 Seminar on the Encouragement of Understanding, Tolerance, and Respect in Matters Relating to Freedom of Religion or Belief.53 The General Assembly of the United Nations, which deals every year with the elimination of all forms of religious intolerance, has not directly addressed the issue of whether there should be a convention. In its last resolutions before this writing, the General Assembly nevertheless urged states to take measures to combat hatred, intolerance, and acts of violence, including those motivated by religious extremism, and to guarantee freedom of thought, conscience, religion, and belief. The General Assembly also welcomed steps to implement the declaration and encouraged the Commission on Human Rights to do the same. Still, there

52 See Stephen Schwebel, “The Effect of Resolutions of the U.N. General Assembly on Customary International Law,” American Society of International Law, Proceedings of the 73rd Annual Meeting (1979): 301. Odio Benito, E/CN.4/Sub.2/1987/26, at 49, refers to concrete obligations of conduct for states and individuals. 53 On the seminar, see the report by Kevin Boyle, United Nations Seminar on the Encouragement of Understanding, Tolerance, and Respect in Matters Relating to Freedom of Religion or Belief, U.N. Doc. ST/HR/Ser.A/16 (1984), particularly para.102(q), on the possibility of a convention.

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was no reference at all to the question of a convention.54 The 1993 Vienna Conference on Human Rights also remained silent on this issue.55 Theo van Boven, in a working paper prepared at the request of the Subcommission on Prevention of Discrimination and Protection of Minorities, has taken a cautious view on the question of a convention. He recommended that, prior to the drafting of such an instrument, solid preparatory work should be done.56 Others, such as Yoram Dinstein, have stressed the singular contribution that a convention could make to the promotion of freedom of religion. Dinstein is, however, aware of the fact that the prospects for a convention are unlikely, and that there is very little enthusiasm for a new implementation mechanism.57 The draft convention presently pending, as elaborated by the Commission on Human Rights,58 contains a preamble and twelve articles adopted by the commission. The draft reflects the prevailing mood when it was discussed simultaneously with the draft declaration. The major differences between the substantive articles of the declaration and those of the draft convention are the result of the amendments added in the latter stages of the preparation of the declaration. Also, the draft convention lists some rights not mentioned in the 1981 Declaration. For example, draft Article IX follows the pattern of Article 4 of the Convention on Racial Discrimination and is likely to result in controversy, if work on the draft convention should continue. The measures of implementation are similar to those incorporated into other anti-discrimination instruments, which are based mainly on a reporting system that encompasses individual petitions.

54 See, for instance, U.N. Doc. A/54/100 ( June 15,1999). Formerly, in its resolution 41/20 of December 4, 1986, the General Assembly stated that standard setting should proceed with adequate preparation. 55 For the Vienna Declaration and Programme of Action, see 32 I.L.M. 1661 (1993). 56 Theo van Boven, Elimination of All Forms of Intolerance and Discrimination Based on Religion of Belief: Working Paper, U.N. SCOR 41st Sess., Agenda Item 11, U.N. Doc. E/CN.4/Sub.2/1989/32 (1989). Van Boven mentions suggestions to frame a new binding instrument in the form of a protocol to the ICCPR, in which case the Human Rights Committee would become the implementation machinery. He also points out the practical difficulties for the establishment of a new treaty body (ibid., 27). See also Theo Van Boven, “Advances and Obstacles in Building Understanding and Respect between People of Diverse Religions and Beliefs,” Human Rights Quarterly 13 (1991): 437–449, an adapted version of the Arcot Krishnaswami Lecture at a conference of experts on ways to promote the 1981 Declaration, Project Tandem, New Delhi, 1991. 57 Yoram Dinstein and Mala Tabory, eds., The Protection of Minorities and Human Rights (1992), 179. 58 Elimination of All Forms of Religious Intolerance: Note by the Secretary-General, U.N. GAOR 25th Sess., Agenda Item 56, U.N. Doc. A/7930 (1970).

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Implementation of the Declaration Since continued work on a convention now seems doubtful, it may be more useful to examine the various ways that the 1981 Declaration has been monitored. (Nongovernmental organizations may collaborate and do their own monitoring.) Because the Human Rights Committee has a duty to follow the relevant articles of the covenant, it has been suggested that working groups be established to make sure that it does so, although no formal proposals have been advanced in this regard. In any case, the principles listed in the declaration should provide governments with guidance to adjust their own legislation to the international minimum standard. Both the Commission on Human Rights and the Subcommission on Prevention of Discrimination and Protection of Minorities appointed special rapporteurs to conduct studies and submit reports related to the implementation of the declaration. The special rapporteur of the commission, Angelo Vidal d’Almeida Ribeiro, was appointed in 1986 and submitted seven reports.59 A new special rapporteur, Abdelfattah Amor, was appointed in 1993. The special rapporteur of the subcommission, Elizabeth Odio Benito, was appointed in 1983, and her task was to undertake a comprehensive study of the scope of the problems related to intolerance on grounds of religion or belief. Odio Benito, using the declaration as a term of reference, was able to update the findings of the Krishnaswami study.60 The reports submitted by the special rapporteurs provide a global perspective on the state of religious rights. The special rapporteurs circulated questionnaires among many states and based their reports on the responses. In addition, they analyzed the present state of affairs in the various countries, commented on issues reflected in the individual responses, and formulated recommendations based on their conclusions. In her study Odio Benito concluded that the phrase intolerance and discrimination based on religion or belief encompassed not only discrimination, but also included acts intended to stir up hatred against or persecution of persons or groups. She stressed the uniformity of the Universal Declaration, the Covenant on Civil and Political Rights, and the 1981 Declaration regarding the right to change one’s religion or to remain without any at all. According to Odio Benito, full realization of all other human rights is closely linked to freedoms of thought, conscience, religion, and belief. Violations of religious

59 For the seven reports, see U.N. Doc. E/CN.4/1987/35; E/CN.4/1988/45 and E/CN.4/1988/45/Add.l; E/CN.4/1989/44; E/CN.4/1990/46; E/CN.4/1991/56; E/ CN.4/1992/52; E/CN.4/1993/62 revised by E/CN.4/1993/62/Corr.l and E/CN.4/1993/ 62/Add.l. 60 Odio Benito, E/CN.4/Sub.2/1987/26.

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rights frequently involve violation of many other basic rights, including the right to life. A listing of such violations, region by region, is included in the study, which also examined various church-state relationships. The author of the study did not draw a firm conclusion as to whether, and to what extent, any of the existing constitutional arrangements give rise, per se or in practice, to religious intolerance. She did, however, point out when, on the whole, the existing situation falls below the standards in the 1981 Declaration. Furthermore, Odio Benito recommended that the international community continue its efforts to adopt a convention. This is consistent with the conclusions reached by the 1984 United Nations Seminar on the Encouragement of Understanding, Tolerance, and Respect in Matters Relating to Freedom of Religion or Belief. Odio Benito also suggested that several studies should be made concerning the following subjects: discrimination against women within churches and within religions; discrimination against centuries-old religions that do not belong to the group of major religions; and the emergence of new religions and practices of sects. Until the adoption of a convention containing implementation measures, these kinds of studies are critical in helping the appropriate bodies determine what human rights issues are most salient. In order to make these kinds of determinations, human rights bodies may resort to arrangements that the ECOSOC (Economic and Social Council) can make under Article 64 of the U.N. Charter. Angelo Vidal d’Almeida Ribeiro, the first special rapporteur of the Commission on Human Rights, also filed reports addressing allegations against certain governments whose practices may have departed from the provisions of the declaration. He transmitted these allegations to the respective governments in seven detailed and documented reports. These reports also contained comments formulated by the affected governments. The special rapporteur aimed to identify factors that might impede the implementation of the declaration and the collection of specific information. He circulated questionnaires to the governments and established communication with them based on their replies. He also directly approached those governments against which allegations had been made. The reports contained information from nongovernmental sources, including religious groups and organizations. The reported cases covered a wide range of situations involving persons of various religions under different legal and political systems. These cases came from most regions of the world. The special rapporteur highlighted the fact that the majority of allegations involved the right of religious choice; the right to change one’s religion; the right to worship in public and in private; and the right not to be subjected to discrimination on any grounds. Violations of the declaration’s provisions have also been a reflection and cause of violations concerning other fundamental freedoms and rights. Violence has frequently

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accompanied these violations. Sometimes this violence has erupted on a massive scale, as has been the case in the former Yugoslavia. Special Rapporteur d’Almeida Ribeiro noted some positive developments and stressed the importance of interfaith dialogue. In particular, he favored the preparation of a binding instrument, especially in the light of the recommendations submitted by Theo van Boven to the Subcommission on Prevention of Discrimination and Protection of Minorities. Following the resignation of Angelo Vidal d’Almeida Ribeiro, the chairman of the Commission on Human Rights appointed Abdelfattah Amor as special rapporteur. Professor Amor has submitted reports since 1994.61 In particular, he sent summaries of allegations made against certain countries (concerning religious rights) to those countries against which those allegations were made. Such allegations concerned various forms of harassment, arrest, torture, or ill-treatment of victims of religious intolerance. Some of the reports referred to the desecration or destruction of religious sanctuaries or cemeteries. The special rapporteur, in order to support his views and observations, has also made visits in situ and has drawn on governmental and nongovernmental sources, taking into account any information received from religious groups. He also sent questionnaires to governments regarding the subject of his mandate and responded to urgent appeals made by Bangladesh, Iran, Iraq, Pakistan, and Saudi Arabia. While conducting his work, Amor found and addressed numerous examples of religiously oriented persecution and discrimination. These include murders carried out by armed groups of Islamic militants; discrimination against groups such as the Church of Scientology in Germany; imprisonment due to expression of religious beliefs; discrimination against religious minorities, particularly Christians and Shi’ite Muslims in Saudi Arabia; restrictions against Jehovah’s Witnesses in Austria; persecution against writer Taslima Nassrin, and other acts of religious intolerance against the Hindu, Christian, and Buddhist minorities in Bangladesh; restrictions upon Protestant organizations in Belarus; persecution against Christians and Christian missionaries in Bhutan, where Buddhism and Hinduism are the only recognized religions; prohibition and persecution (including acts of physical violence) of many sects in Bulgaria; violation of the right to conscientious objection in Cyprus; restrictions on religious activities and attacks on the freedom of religion of Jehovah’s Witnesses, Seventh-day Adventists, and Baptists in Cuba; violence, including

61 E/CN.4/1994/79, 1995/91, 1996/5 and Corr. 1 and Add. 1 and Add. 2, 1997/91 and Add.1, 1998/6 and Add/1 and Add.2, 2000/65, 2001/63, 2002/73, 2003/66 and Add.1, and 2004/63 and Add.1 and Add. 2.

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assassinations, by Islamic fundamentalist groups in Egypt; violations of religious freedom in Ethiopia; restrictive legislation in the Russian Eederation; imprisonment of conscientious objectors and harassment of religious groups in Greece; religiously oriented killings and violence in India; persecutions against Baha’is, Jews, and Christians in Iran; persecutions against Shi’ite Muslims in Iraq; incidents in the territories occupied by Israel, Kenya, Lebanon, and Liberia; anti-conversion laws in Malaysia and Morocco; anti-Protestant incidents in Mexico; discrimination against Christians in Mongolia; persecution against Christian and Muslim religious communities in Myanmar; persecution of religious minorities in Pakistan; killing of Christians in the Philippines; intolerance in Romania; massacres of clergymen in Rwanda; severe violations and violence in Sudan and Sri Lanka; violation of the rights of religious minorities in Turkey, Vietnam, Yemen, and Zimbabwe.62 In order to achieve as complete a picture as possible, Special Rapporteur Amor visited numerous countries, including China, Pakistan, Iran, India, Greece, Sudan, Australia, and Germany. Based on these visits, he submitted reports with conclusions and recommendations.63 As part of his work, Special Rapporteur Amor requested clarifications from the respective governments and suggested approaches that would address discrimination within the framework of the particular government. Amor took the view that the achievement of religious tolerance and nondiscrimination must go together with the achievement of human rights as a whole. He believed his goal of curbing religious extremism and terrorism could be achieved through education. He acknowledged that in certain cases it is difficult to establish a clear distinction between religious and ethnic conflicts, and between such conflicts and political persecution. Still, he devoted special attention to conversion and proselytism, blasphemy, attacks on places of worship and religious sites, and problems related to sects and conscientious objection. He also addressed in his conclusions and recommendations the issue of ethnic cleansing in former Yugoslavia and ethnically related events in Algeria. Along with addressing particular problems, Amor also invited the states he investigated to share legal texts related to the freedom of belief; his hope was to build a compendium of national enactments related to that freedom.

62

See U.N. Doc. E/CN.4/1995/91. On the visits, see U.N. Doc. E/CN.4/1995/91, E/CN.4/1996/95/Add.l and E/CN.4/1996/95/Add.2, E/CN.4/1997/91/Add.l, as well as Human Rights Questions, Including Alternative Approaches for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms: Note by the Secretary-General, U.N. GAOR 51st Sess., Agenda Item 110(b), Add.l, U.N. Doc. A/51/542/Add.l and ibid., Add.2, and U.N. Doc. E/CN.4/1998/6/Add.l and E/CN.4/1998/6/Add.2. See also, below, implementation in recent years. 63

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In his 1996 report64 Amor divided the violations of religious rights into six categories. These categories, based on the communications he received, included (1) violations of the principle of nondiscrimination in religion and belief; (2) violations of the principle of tolerance, a category that reflected the concern about religious extremism; (3) violations of the freedom of thought, conscience, and religion or belief, including the freedom to change religion; (4) violations of the freedom to manifest one’s religion or belief; (5) violations of the freedom to dispose religious property; and (6) attacks on the right to life, physical integrity, and security of person. He concluded that the elaboration of an international convention on the elimination of religious intolerance and discrimination was a necessary but premature step, given the present circumstances.65 In his 1998 report Amor paid special attention to the development of a culture of tolerance and stressed the role of education as an essential and priority means of combating intolerance and discrimination.66 He surveyed the replies received from seventy-seven states to a questionnaire on problems relating to freedom of religion and belief from the standpoint of the curricula and textbooks of elementary and secondary schools. Among his preliminary findings Amor noted a marked difference between states based on secular principles and those based on a theocracy or official state religion. In particular, he highlighted the problems related to the compulsory nature of religious instruction; the imposing of a particular kind of religious instruction on members of another faith without giving them the right to be excused; the difficulties created when minority religions have no private religious institutions; and the limited teaching of comparative religion. In response, the rapporteur recommended further study of religious extremism, proselytism, freedom of religion and poverty, and sects and new religious movements. Religious Minorities Religious rights include (1) individual rights; (2) collective rights (exercised by several persons jointly as prescribed by Article 27 of the Covenant on Civil and Political Rights); and (3) rights of the religious group or community. The last category contains the rights of what is usually described as a religious minority. It is difficult to analyze this subject because there is no generally accepted definition of religious minority. Many definitions have been proposed, and one enjoying support is that of Professor Francesco Capotorti, U.N.

64 65 66

U.N. Doc. E/CN.4/1996/95. Ibid., 14. U.N. Doc. E/CN.4/1998/6.

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special rapporteur on minorities. According to Capotorti, a minority is a group which is numerically inferior to the rest of the population of a state and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population and who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions, religion or language.67 There are as many definitions of minority as there are proposals to replace the term.68 Self-perception and the perception of the surrounding society are of great importance, particularly in the case of religious minorities or groups. In general, states have been less reluctant to recognize the rights of an organized religious group or minority, believing that there will be few consequences of such recognition—except in the case of territorial concentration or political tension. Many states understand that it is virtually impossible to respect freedom of religion or belief without (1) permitting believers to organize their representative institutions; (2) granting them some authority to deal with the individual members of the faith; and (3) allowing them to maintain contact freely with similar organized groups outside the state. Much, of course, depends on the constitutional regime of the state, and there have been instances of special arrangements between states and certain churches or religions, a subject to which we shall return. When analyzing the evolution of the status of religious minorities and other minorities, we need to consider four major stages: (1) an early period of nonsystematic protection of religious groups through the incorporation of special protective clauses in international treaties and through humanitarian intervention of influential powers; (2) the protective system under the League of Nations, based on special treaties, special clauses in general treaties, or unilateral undertakings; (3) the pattern followed by the United Nations as expressed in Article 27 of the Political Covenant (and slightly less so in the 1992 declaration on minorities), implying an almost total shift from group protection to a guarantee of individual rights and freedoms; and (4) modern trends, which acknowledge the necessity of harmonizing individual freedoms, the rights of the state, and the needs of organized religious groups.

67

UNP Sales No. E.91. XIV.2. The bibliography on minorities is enormous. For an early list, see Definition and Classification of Minorities, at 26–51, U.N. Doc. E/CN.4/Sub.2/85, U.N. Sales No. E.50.XIV.3. For recent literature in addition to Capotorti’s Study, see, inter alia, Felix Ermacora, “The Protection of Minorities Before the United Nations” 182, vol. 4, Recueil des Cours (1983): 247–370; Louis B. Sohn, “The Rights of Minorities,” in Henkin, The International Bill of Rights, 270–289; Lerner, Group Rights; Patrick Thornberry, International Law and the Rights of Minorities (1991); Dinstein and Tabory, eds., The Protection of Minorities and Human Rights; Catherine Brölmann et al., eds., Peoples and Minorities in International Law (1993); G. Pentassuglia, Minorities in International Law, An Introductory Study, published by the Council of Europe, 2002. 68

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The early treaties granted protection to certain religious minorities, frequently as a consequence of territorial changes. Usually, the treaties were based on the link between one of the parties and a sector of the population of the other state. It was only after the Vienna Congress in 1815 that the scope of such treaties was expanded.69 Humanitarian intervention produced positive results in some cases, but, without an articulated scheme, these treaties had obvious limitations. The League of Nations system for the protection of religious and other minorities was far from perfect. Nevertheless, its failure was not the consequence of intrinsic defects but was due to the political turmoil in Europe after World War I, especially the assault by the Nazi and Fascist regimes against democracy and the rule of law. The League’s Covenant did not incorporate any general article about minorities, and attempts to include a comprehensive article on religious persecution did not succeed. States that signed treaties or made declarations about minorities included Poland; Austria; Czechoslovakia; the Kingdom of the Serbs, Croats, and Slovenes; Bulgaria; Romania; Hungary; Greece; Turkey; Albania; Lithuania; Latvia; Estonia; and Iraq. Provisions on minority rights were also incorporated in treaties concerning Danzig, the Aland Islands, Upper Silesia, and Memel.70 Under the League of Nations system many rights were guaranteed. These included the free exercise (in public and private) of any creed, religion, or belief; equality of treatment in law and in fact, with a prohibition against discrimination; equal access to public employment and professions; the use of minority languages in religious ceremonies or activities; the right to establish institutions and schools; and the right to have public funds allocated to religious, educational, and charitable needs. Such guarantees could not be derogated by domestic legislation without the approval of the Council of the League. The Council was entitled to consider violations and take appropriate action. Disputes were to be submitted to the Permanent Court of International Justice, which had compulsory jurisdiction. A mechanism for petitions by individuals or associations acting on behalf of a minority was established, and the Council could make recommendations based on the respective case. For example, under the Bernheim petition in 1933, which was based on the convention between Germany and Poland of 1922 regarding Upper Silesia, the Nazis were prevented for some time from implementing measures against Jews, who were considered a religious, ethnic, and linguistic minority.71 69 On this early period, see Thornberry, International Law and the Rights of Minorities, 25ff.; Malcolm D. Evans, Religious Liberty and International Law in Europe (1997), 42–74. 70 For an authoritative interpretation of the system and the context in which it worked, see Jacob Robinson et al., Were the Minorities Treaties a Failure? (1943). 71 In relation to this interesting and rare case, see Stephen J. Roth, “The Impact of the Holocaust on the Legal Status of Jews and Jewish Communities,” Israel Yearbook on Human Rights 9 (1979): 121–139, at 128.

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The Permanent Court of International Justice dealt on several occasions with issues related to minorities. Its Advisory Opinion on Minority Schools in Albania, although referring primarily to the linguistic rights of the Greek minority in Albania, became universally respected as it acknowledged the need for all minorities (especially religious minorities) to have suitable means for the preservation of their traditions and characteristics.72 In the United Nations period the prevailing opinion asserted that individual rights and the principle of nondiscrimination were the appropriate means of protecting everyone, including members of minorities. There was an overall reluctance to recognize any type of group rights, mainly for historical and political reasons. In fact, the Charter does not refer to minorities at all. A proposed inclusion of an article on minorities in the Universal Declaration of Human Rights was not accepted. Article 26 does refer to the promotion of understanding, tolerance, and friendship among racial or religious groups, but this reference is vague. The Subcommission on the Prevention of Discrimination and the Protection of Minorities introduced Article 27 of the Covenant on Civil and Political Rights, a controversial and much criticized article that nevertheless serves as the basis of the United Nations approach to the issue. Article 27 refers to religious and other minorities, members of which should not be denied the right, in community with other members of their group, to profess and practice their own religion.73 The criticism of Article 27 exposed the shortcomings of the covenant’s approach to minority rights and led to the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, which represented some progress in the acceptance of minority rights.74 As its title indicates, the declaration embraces national or ethnic, religious, and linguistic minorities. But these terms are hard to define. The term national minority frequently includes minorities that represent a part of some other nation, or what some describe as a “kin-state”.75 (This same kind of definition may apply to religious groups, too.) But in the declaration the term national

Minority Schools in Albania, 1935 P.C.I.J. (ser A/B) No. 64, at 17. The interpretation of Article 27 provoked a debate among scholars. See Thornberry, International Law and the Rights of Minorities, 149ff.; Francesco Capotorti, “Are Minorities Entitled to Collective International Rights?” Israel Yearbook on Human Rights 20 (1990): 351–357; Lerner, Group Rights, 14ff.; Lerner, “The Evolution of Minority Rights in International Law,” in Brölmann et al., Peoples and Minorities in International Law, 88ff.; Yoram Dinstein, “Freedom of Religion and the Protection of Religious Minorities,” in Dinstein and Tabory, The Protection of Minorities and Human Rights, 154ff. 74 For an analysis of the Declaration on Minorities, see following chapter. 75 See Dusan Janjic et al., eds., Democracy and Minority Communities, Theses for the Law on Freedoms and Rights of Minority Communities and Their Members (1993), 34. On kin-states, see Council of Europe, The protection of national minorities by their kin-state, Strasbourg, 2002. 72 73

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minorities is equivalent to ethnic, religious, and linguistic minorities. While the preamble of the declaration promotes the principles mentioned in the Declaration on Intolerance and Discrimination Based on Religion or Belief, parts of the declaration require clarification. Article 1 of the 1992 declaration urges states to take measures to protect the existence and identity of religious minorities. There is an implicit acknowledgment of group rights, or rights that go beyond the scope of individual rights. Article 2 grants to persons belonging to minorities the right to profess and practice their own religion and to participate effectively in religious life. These persons are entitled to establish and maintain their own associations and to establish and maintain free and peaceful contacts with other members of their group, including those who reside in other states. Otherwise, the relationship of the U.N. declaration on minorities to religious human rights is limited. Nevertheless, the declaration represents some progress if compared to the Political Covenant, including the area of freedom of religion or belief. Religious Rights in other Relevant Instruments Several legal texts adopted separately during the United Nations era contain provisions on religious rights. Humanitarian law—consolidated in the four widely ratified Geneva conventions of 1949—contains provisions prohibiting any adverse distinctions founded on religion or faith.76 The Convention on Prisoners of War also addressed religiously oriented issues, such as the exercise of religious duties, attendance of services, the role of chaplains and ministers of religion, and the use of facilities for the performance of their duties. In particular, the Fourth Convention urged respect for the religious convictions and practices of the protected persons. This convention also referred to the work of ministers of religion, the use of books and articles for religious needs, and the need for adequate premises for the religious services. The 1979 Convention on the Elimination of All Forms of Discrimination against Women contained provisions that clashed with practices of some religious traditions that were incorporated into general legislation.77 Several

76 For the 1949 humanitarian law conventions, see International Committee of the Red Cross, The Geneva Conventions of August 12, 1949 (1949), as well as Jean S. Pictet, International Committee of the Red Cross, Commentary: Geneva Convention (1952). 77 For the texts of the Declaration and the Convention on the Elimination of All Forms of Discrimination against Women, see Human Rights, 1:145–149 and 1:150–163. On the convention generally, see Theodor Meron, Human Rights Law-Making in the United Nations (1986), 53–82; Donna J. Sullivan, “Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution,” New York University Journal of International Law and Politics 24 (1991–92): 795–856; Kathleen E. Mahoney and Paul Mahoney, eds., Human Rights in the Twenty-First Century (1993).

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states expressed reservations about the clauses that were perceived to conflict with religious traditions. Both the Human Rights Committee under the Political Covenant and the Committee on the Elimination of Discrimination against Women (CEDAW) addressed the issue of equality for women, especially in matters concerning family law. Judicial or quasi-judicial intervention has been required, most notably in Europe. In order to gain a full perspective, this clash between gender-oriented law and law that is grounded on religious traditions should be seen in the wider context of the discussion on the universality of human rights. Because religious rights and education are closely related, international instruments addressing education are relevant for the analysis of religious rights. The freedom to teach one’s religion (and ensure that parents’ wishes for the religious education of their children are respected) and the degree to which the state supports religious instruction raise complicated issues that can only be resolved by careful balancing among differing human rights. The UNESCO Convention against Discrimination in Education, adopted in 1960 and in force since 1962, was one measure that tried to prohibit discrimination based on religion.78 Under this measure separate educational systems for religious purposes were permitted, provided that participation in such systems was optional and conformed to authorized standards (Article 2). Overall, education was meant to promote understanding and tolerance among religious groups. Yet, it was important that religious and moral education was imparted in conformity with the convictions of the children, meaning that nobody should be compelled to receive religious instruction inconsistent with his or her convictions (Article 5). In order to gain a full understanding of the relationship between education and religion, the provisions of the UNESCO Convention against Discrimination in Education should be read in conjunction with the relevant articles of the 1948 Universal Declaration of Human Rights and the 1966 Covenant on Social, Cultural, and Economic Rights. In addition, the Declaration on the Rights of the Child and the Convention on the Rights of the Child, which contain provisions related to religion and education, should be considered. These provisions also emphasize the need to give primary consideration to the best interest of the child.79 Despite the attempt to provide a suitable framework for addressing issues pertaining to education and religion, however, the relationship between these issues is by no means straightforward and has provoked judicial intervention at the municipal, regional, and international levels.80 For the text, see Convention against Discrimination in Education, Human Rights, 1:101. See chap. 1, note 51. 80 For the American case law, see M. Glenn Albernathy, Civil Liberties under the Constitution (1993), 172–220, 345–376; for some of the European cases, sec Case of Kjeldsen, Busk Madsen and Pedersen, 23 European Court of Human Rights (ser. A) at 25 (1976), and 78 79

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The International Labor Organization (ILO), which in 1958 adopted the Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation (in force since 1960), attempted to prohibit discrimination on the basis of religion.81 Specifically, the ILO organized bodies that addressed employee complaints that were based on denial of equality because of religion. These complaints often resulted when religious duties conflicted with working conditions, especially in regard to days of rest and holidays. There have also been many instances of judicial intervention.82 Another important ILO treaty addressing religious rights has been the 1989 Convention No. 169, concerning Indigenous and Tribal Populations and Peoples. This is a partial revision of the 1957 convention on this subject. The new convention is more group-oriented and recognizes the aspirations of indigenous peoples to maintain and develop their identities and religions, ensuring protection for their religious and spiritual values and practices. The United Nations has also addressed this subject and proclaimed 1993 as the International Year for the World’s Indigenous Peoples. General Assembly Resolution 45/164 (1990) made reference to cultural identity and restrictions on religious customs.83 International instruments related to the condition of migrant workers have also considered their cultural and religious needs. The 1990 U.N. Convention on the Protection of the Rights of Migrant Workers and Their Families contained provisions guaranteeing the religious rights of such migrants. Article 12 of the convention was clearly inspired by Article 18 of the Political Covenant.84 Angelini v. Sweden, European Commission on Human Rights, App. No. 1049,10 E.H.R.R. 123 (1988); on the global level, Hartikainen v. Finland, Communication No. 40/1978, in Selected Decisions, 1:74. This case was also considered by the European Human Rights Committee. 81 For the text, see Discrimination (Employment and Occupation) Convention, Human Rights, 1:96. 82 See, inter alia, the decision of the Court of Justice of the European Communities in Case 130/75, Preis v. Council of the European Communities [1976] 2 Common Market Law Reports 708 (1976). The Court stated that if a candidate for a job or a religious organization applies in time for a change in dates for a job examination, for religious reasons, that should be taken into account, if possible. For a different stand by the European Commission, see M. v. Austria, 1993 CD 25. The commission rejected a complaint against the denial of an adjournment of a hearing for religious motives because of the complexity of the case. 83 For the 1989 convention, see Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, Human Rights, 1:471. For its analysis, see Lerner, Group Rights, 99–114. For the U.N. draft declaration, see Commission on Human Rights, Discrimination against Indigenous Peoples: Technical Review of the United Nations Draft Declaration on the Rights of Indigenous Peoples: Note by the Secretariat, U.N. ESCOR 46th Sess., Agenda Item 15, U.N. Doc. E/CN.4/Sub.2/1994/2 (1994) and U.N. Doc. E/CN.4/Sub.2/1994/2/Add.l; Work Group on Indigenous Populations, Commission on Human Rights, Discrimination against Indigenous Peoples, U.N. ESCOR 46th Sess., Agenda Item 5, U.N. Doc. E/CN.4/Sub.2/ 1994/30 revised by U.N. Doc. E/CN.4/Sub.2/1994/30/Corr.l (1994). 84 For the text, see International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Human Rights, 1:550. For its analysis, see Ved P. Nanda, “The Protection of the Rights of Migrant Workers,” Asian and Pacific Migration Journal 2 (1993): 161–177.

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Conclusions Based on the foregoing, the following conclusions can be reached. First, United Nations instruments dealing with religious human rights do not define the term religion. This is the result of a general trend to avoid ideological or philosophical definitions that may cause controversy and make it more difficult to reach agreement between states in such a delicate area of human behavior. It is, however, indisputable that, in United Nations law and in modern human rights law, the term religion, usually followed by the word belief, means theistic convictions, involving a transcendental view of the universe and a normative code of behavior, as well as atheistic, agnostic, rationalistic, and other views in which both elements may be absent. Second, the United Nations system for the protection of religious human rights does not presently include any specific obligatory treaty regarding religious human rights. Article 18 of the 1966 International Covenant on Civil and Political Rights, and provisions related to religious issues in the covenant and in treaties prepared by the United Nations and other international bodies, are, of course, mandatory for those states that ratified such instruments. A significant number of those provisions are seen today as reflecting customary international law, and some, such as the prohibition of discrimination on religious grounds or the outlawing of genocide against religious groups, belong to the restricted category of jus cogens. Freedom of religion is one of the fundamental rights that cannot be derogated in states of emergency. The General Comment on Article 18 formulated by the Human Rights Committee constitutes an authoritative source for the interpretation of the covenant clauses. Third, the discussion on the need and/or convenience of a mandatory treaty on religious rights and freedoms is inconclusive. The main argument in favor of a convention is, of course, the general desire to grant religious rights a protection similar to that extended to other basic rights. The example of the widely ratified Convention on Racial Discrimination, incorporating a relatively effective system of monitoring and implementation, is pointed out as justifying the treaty-oriented approach. Arguments against a treaty, neither new nor exclusive to the sphere of religion, are the risk of having to compromise on a very low common denominator of protection and the possible reluctance on the part of some states to ratify an instrument that may clash with long-established systems of law, mainly in the area of family law, personal status, and conversion. Given this inconclusive debate over a mandatory instrument, the existence of a monitoring system, in the form of reports or studies by special rapporteurs appointed by U.N. organs, provides a modest degree of protection of religious rights, naturally not equivalent to conventional obligations assumed by states. There have been proposals, mainly from nongovernmental

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organizations, aimed at improving that system. These include suggestions to establish national bodies to monitor religious rights, in the spirit of the 1981 Declaration, the submission of periodic reports from member states to ECOSOC, and similar measures not implying a mandatory treaty. Fourth, the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief was a powerful step forward in the search for a system of protection of religious human rights. The declaration, which incorporated many—though not all—of the principles enunciated in the seminal study by Arcot Krishnaswami, includes a comprehensive and detailed catalog of rights related to freedom of conscience, religion, and belief, and their exercise in practice. The declaration progresses beyond the purely individualistic approach of the covenants and is nearer to some recent instruments that acknowledge the group dimension of religious human rights. Such rights cannot be adequately protected unless the rights of religious organizations, communities, and congregations as such are recognized and ensured beyond the purely individualistic freedoms. This may be of great importance for collectivities and communities of a religious origin in which the religious element may appear combined with ethnic and cultural characteristics. Fifth, there are some particularly complicated problems that continue to arouse controversy. Examples of such problems include matters of conversion, “opting out” from some religions or recognized religious communities, blasphemy, rights of women and children, and conscientious objection (which is not always a religious matter). A major controversy—not exclusively affecting religious rights—relates to the question of striking a balance between the prohibition of incitement against religious groups, as enunciated in Article 20 of the ICCPR, and the freedoms of speech or association. There have been different answers to this question, depending on the constitutional systems of the respective countries. The precedent of the Convention on Racial Discrimination and trends presently prevailing in connection with religious rights seem to indicate a growing understanding of the need to protect substantive social values against abuses of the freedoms of speech and association. Sixth, since the 1990s tragic events affecting the life and welfare of millions of persons have taken place, involving population sectors defined by religion as well as ethnic identity. The need to ensure the protection of religious, ethnic, and cultural groups, irrespective of the nature of the group, was acknowledged by the judiciary of several countries. The shocking practices of “ethnic cleansing” in the former Yugoslavia and Rwanda have added urgency to the recognition of that need. The protection of religious human rights during the United Nations era is thus quite limited. Provisions of a positive character do exist and have exercised a considerable influence on domestic legislation. The claim that they are not enough, particularly at times of high international and intra-national tension,

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seems to be supported by current events. Religious human rights deserve more than to remain a neglected chapter in the universal endeavors to ensure observance of and respect for human rights. Implementation in Recent Years In the former pages, the implementation of the Declaration by Special Rapporteur Amor has been summarized. Professor Amor was in office until 2004, when he was replaced by Asma Jahangir. In accordance with resolution 1999/78 of the Commission on Human Rights, Amor prepared a study on racial discrimination, religious intolerance and education, submitted to the preparatory committee of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance.85 The study analyzes the role of education as it relates to racial discrimination and religious intolerance and considers separately the legal aspects and the factual aspects of racial discrimination and religious intolerance in education. It refers to the general obligations of the state in the area of education, the question of separate systems, specific obligations concerning the education of minority, indigenous and migrant children, the use of languages, the conditions for the exercise of the rights considered, the relationship between freedom of education, religious education and religious intolerance, including the controversial issue of the wearing of signs of membership in a religious community. The study recommends a series of domestic and international measures directed to the development of multicultural and intercultural education.86 In recent years, the former Special Rapporteur continued submitting his periodic reports on civil and political rights, including religious intolerance.87 He also submitted special reports on his visits to several countries, such as Algeria, Georgia and Rumania, in addition to his references to in situ visits in his general reports. In his last report, Professor Amor draws up a balance of the 11 years during which he performed his duties. He points out that, although “a progressive decline” is apparent in anti-religious policies or policies for the total control of religious matters by states in the name of political ideology, it must also be acknowledged that “non-State entities have also played a more important role in recent years.” Still, besides “the very numerous instances of religious intolerance to be found everywhere in present-day society, the phenomenon of religious—or what passes for religious—extremism

85

Doc. A/CONF.189/PC.2/22 Ibid., page 29 and foll. 87 See doc. E/CN.4/2000/65. E/CN.4/2001/63, E/CN.4/2002/73, E/CN.4/2003/66, and E/CN.4/2004/63. 86

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has recently taken a new lease of life after noticeably declining at the end of the 1990’s.”88 Mr. Amor refers to extremist tendencies that use religion for purposes far removed from human rights and freedom of religion or belief. He alludes particularly to the extremism claiming its origins in Islam, and to manifestations of Islamophobia that it caused. The Special Rapporteur expresses the hope that, in their fight against terrorism, states “will not mistake their target and, while continuing to combat terrorist acts, they will refocus their efforts on the origins of terrorism and on the need to ensure protection and promotion of human rights without bias or selectivity.”89 In his report for 2002, the Rapporteur pays special attention to the International Consultative Conference on School Education in Relation to Freedom of Religion or Belief, Tolerance and Non-Discrimination that took place in Madrid in November 2001, on the occasion of the twentieth anniversary of the 1981 Declaration. The full text of the Final Document adopted by the Conference is reproduced in an Appendix to the report.90 In July 2004, Ms. Asma Jahamir was appointed Special Rapporteur on freedom of religion or belief for a duration of three years. In December 2004, she submitted her first report.91 Besides the communications transmitted by states, it deals with situations like conversion, in particular forced conversion, attacks on places of worship, limitations on religious publications, registration, anti-terrorist legislation, and religious symbols. The new rapporteur, in describing her methods of work, indicates that, while addressing primarily individual rights, her mandate requires to consider, inter alia, the question of the relationship between the state and religious communities, the question of non-discrimination between religious communities, and interreligious and intrareligious tolerance. The twenty-first century poses a series of new challenges, such as the use of religious beliefs for political purposes, and religious intolerance continues to increase, concludes the Special Rapporteur.

88 89 90 91

See, E/CN.4/2004/63, para. 146 and foll. Ibid., para. 151–153. See,E/CN.4/2002/73, page 41 and foll. E/CN.4/2005/61.

CHAPTER FOUR

THE 1992 UN DECLARATION ON MINORITIES I Introduction At its 47th session, on 18 December 1992, the United Nations General Assembly adopted, without a vote, a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.1 The text was prepared by a working group appointed by the Commission on Human Rights, in keeping with Resolution 1988/64. After the Commission discussed the draft and introduced some changes, it submitted the final text through the Economic and Social Council, in accordance with General Assembly Resolution 46/115, of 17 December 1991, and ECOSOC Resolution 1992/4, of 20 July 1992.2 Generally, the Declaration is inspired by Article 27 of the 1966 International Covenant on Civil and Political Rights (hereinafter: CP Covenant),3 and thus emphasizes the individual rights of persons belonging to minorities. At the same time, the need to protect the existence and identity of minorities is acknowledged and it is from this perspective that some progress made in comparison to the strictly individualistic approach of the Covenant provision mentioned above should be noted. It seems almost superfluous, presently, to stress the relevance of the minorities issue to contemporary international life.4 The dissolution of the Soviet

For its text, see A/C/3.47/L.66 (1992). See Commission on Human Rights, Report on the Forty-Eighth Session, ECOSOC, Official Records, 1992 Supp. (No. 2), 317–20; see also A/47/501 (1992), note by the Secretary General. 3 Article 27 of the CP Covenant reads: “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.” 999 U.N.T.S. 171, 179. 4 The academic community has shown a pronounced interest in the minorities issue. In March 1990, the Faculty of Law of Tel Aviv University arranged an International Legal Colloquium on the Protection of Minorities and Human Rights. The papers submitted were published in The Protection of Minorities and Human Rights ( Y. Dinstein & M. Tabory eds., 1992) and in 20 Israel Yearbook on Human Rights (1990). The Department of International Law and International Relations, Faculty of Law, of the University of Amsterdam organized a Conference on Peoples and Minorities in International Law in June 1992. The papers submitted have been published in book form, Peoples and Minorities in International Law (C. Brolmann, R. Lefeber & M. Zieck eds., 1993). The bibliography on minorities is enormous. 1 2

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Union and of Yugoslavia, and the tragic events that followed, took center stage, displacing other complicated situations involving minority problems, less spectacular or perhaps less tragic. But there seems to be no doubt that the subject has become one of the main topics of our time. With the end of the Cold War, limited inter-ethnic (in a broad sense) conflicts are presently the major hot points of violence and friction. Even where violence does not occur, discrimination of some groups by others (not always the majority) is a permanent and serious source of unrest, bitterness and political disorder. The list of such situations is a long one, and includes virtually all continents and regions. In many cases, States are reluctant to confess even to an awareness of the need to find adequate responses to the demands of minorities. In others, those demands are of such a nature as to make it very difficult for States to find solutions based on accepted and traditional legal formulations. To equilibrate the demands of self-determination and the preservation of the territorial integrity of States is not an easy task. The new UN document appears to be a compromise. Other recent instruments that will be mentioned show a more pronounced inclination toward minority realities and demands. It is against this background that the UN Declaration must be analyzed. II. History of the Declaration The United Nations’ attitude vis-a-vis the minorities issue was completely different from the system established under the League of Nations.5 Although special arrangements concerning some minorities were concluded after World War II,6 the prevailing view in the United Nations in the early years after its establishment was that general human rights legislation and the principle of

See, inter alia, F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.l; N. Lerner, Group Rights and Discrimination in International Law (2003); P. Thornberry, International Law and the Rights of Minorities (1991), with an extensive bibliographical list. A voluminous European Yearbook on Minority Issues (eds. Arie Bloed et al.) started to appear in 2001/2 (Kluwer, The Hague). The Council of Europe published an Introductory Study by G. Pentassuglia, Minorities in International Law (2002). Columbia University Press produced the same year a collective book, Protecting the Human Rights of Religious Minorities in Eastern Europe (eds. P. G. Danchin and E. A. Cole). 5 There is a vast literature on the system established by the League of Nations, partially listed in Definition and Classification of Minorities, UN Doc. E/CN.4/Sub.2/85 (1949), Sales No. 1950. XIV.3 26-51. See also J. Robinson el al., Were the Minorities Treaties a Failure? (1943) and works mentioned supra note 4. 6 See K. Hailbronner, “The Legal Status of Population Groups in a Multinational State under Public International Law”, in Dinstein & Tabory eds., supra note 4, at 117–44.

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non-discrimination were adequate means for the protection of all persons, including members of minorities. The fact that persons were, as a rule, the victims of discrimination because of membership in a racial, religious or linguistic group was not ignored, but neither was it considered sufficient reason to recognize the rights of a group or minority. Many States, for political or historical reasons, or because of national policies concerning immigration, assimilation and other demographic issues, objected firmly to any proposal that dealt with minorities on a group basis. The view that the State should incorporate all of its citizens strictly as individuals . . . without any official recognition granted to any group affiliation is still advocated.7 A US author claims that The CSCE’s (Conference on Security and Cooperation in Europe) expanding definition of the cultural and linguistic rights of minorities has already reached the point where it begins to challenge the American ideal engraved on U.S. coins, e pluribus unum.8

Neither the United Nations Charter nor the Universal Declaration on Human Rights make reference to minorities. A Sub-Commission on Prevention of Discrimination and Protection of Minorities was established in 1946 by the Commission on Human Rights. The Sub-Commission was instrumental in promoting the concept that minorities deserve special treatment. It published some important documents, took part in the drafting of Article 27 of the CP Covenant, appointed Special Rapporteur Francesco Capotorti, the author of a most valuable study on minorities,9 and recommended the elaboration of a declaration on minority rights. Simultaneously, the Sub-Commission worked on a definition of the term minority, submitting to the Commission on Human Rights a text prepared by J. Deschenes.10 The Commission on Human Rights established an open-ended ad hoc working group (Resolution 1988/64) to consider a draft proposed by Yugoslavia (E/CN.4/Sub.2/L.734). The working group prepared a text that was approved by the Commission on Human Rights on 21 February 1992 (Resolution 1992/16). The Commission indicated its awareness of the fact “that persons

7 P.L. van den Berghe, “The Modern State: Nation-Builder or Nation-Killer”, 22 International Journal on Group Tensions 191, 206 (1992). 8 R. Cullen, “Human Rights Quandary”, 71 Foreign Affairs, 79, 84 (1992–93). For a different view, M.W. Hughey & A.J. Vidich, “The New American Pluralism. Racial and Ethnic Sodalities and Their Sociological Implications”, 6 International Journal of Politics, Culture and Society 159 (1992): “For the first time in America, social, political, legal and cultural recognition is now given to many groups on the basis of their descent, marking a major change in the traditional American ideology of individualism and open mobility based on merit” (at 165). 9 Supra note 4. 10 See E/CN.4/1986/43, para. 12. On definitions and terminology concerning minorities, see Lerner, supra note 4, at 8–11, 28–30. Also, inter alia, M.N. Shaw, “The Definition of Minorities in International Law”, in Dinstein & Tabory eds., supra note 4, at 1–31.

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belonging to minorities may also enjoy under international or domestic law other rights than those set forth in the draft declaration”. The Commission also recognized that “there is a continuing need to develop international protection in this area”, and decided to keep the item on its agenda, with a view to considering measures to give effect to the declaration, once adopted. The text finally approved by the Commission was adopted by the General Assembly without changes and without a vote.11 III. Contents of the Declaration In its Resolution on the adoption of the Declaration, the General Assembly noted the importance of reaching a “more effective implementation” of human rights instruments dealing with “the rights of persons belonging to national or ethnic, religious and linguistic minorities”. The Resolution stresses the provisions of Article 27 of the CP Covenant. It would appear, therefore, that the Declaration is an attempt on the part of the United Nations to discharge its “increasingly important role . . . regarding the protection of minorities” within the framework of the limited approach of the Covenant, although the text does not ignore the fact that in other frameworks – regional, sub-regional and bilateral – “important achievements” have already been obtained, and they “can provide a useful source of inspiration to future United Nations activities”.12 The adherence of the Declaration to the system followed by the Covenant on Civil and Political Rights prevails in the text, starting with its title. The Declaration deals with “the rights of persons belonging to . . . minorities” and departs only slightly from this approach. I have dealt elsewhere with the scope of Article 27 and the controversy regarding its interpretation.13 In this regard, it seems absolutely clear that the drafters of the Declaration had no wish to depart from the line established by the United Nations in the early years after its inception. The Declaration is definitely not group oriented, although in some of its articles it made concessions to the need to contemplate the rights of the group as such. The title of the Declaration and several of its Articles require an immediate consideration of the words “national minorities”, as equivalent to “ethnic, religious and linguistic minorities”. There seems to be a trend to return to that terminology, which was also utilized by the 1991 Report of the CSCE Meeting of

Supra note 1. UN Press Release, 1 February 1993 (GA/8470). 13 N. Lerner, “The Evolution of Minority Rights in International Law”, in Peoples and Minorities in International Law, supra note 4, at 77–101. Also, Lerner, Group Rights, supra note 4. 11 12

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Experts on National Minorities.14 A priori, there is a contradiction in the use of the words “national minorities” while opting for the system of Article 27 of the CP Covenant. The issue is not purely semantic. The term “national minority” was considered as introducing a “definite political element” and for that reason it should be avoided.15 I have referred elsewhere to the problems involved in the terminological aspect, which is of course indicative of orientations regarding substance.16 A. The Preamble The Preamble of the Declaration opens with a reaffirmation of the basic aims of the United Nations in the field of human rights. It then refers to the desire to promote the realization of the principles contained in the UN Charter, the Universal Declaration of Human Rights, the Genocide Convention, the Convention against Racial Discrimination, the Human Rights Covenants, the Declaration on Intolerance and Discrimination Based on Religion or Belief, and the Convention on the Rights of the Child, as well as other relevant instruments. Despite the fact that several of the instruments mentioned contain provisions emphasizing what may be seen as group oriented trends, the Declaration is inspired by the provisions of Article 27 of the CP Covenant, concerning the rights of persons belonging to ethnic, religious or linguistic minorities. The promotion and protection of the rights of such persons is seen as contributing to the “political and social stability of States in which they live” and as an “integral part” of the development of society within a democratic framework based on the rule of law, so strengthening friendship and cooperation among peoples and States. The role to be played by the United Nations regarding the protection of minorities is mentioned, and so is the work done so far by UN bodies. The work carried out by intergovernmental and non-governmental organizations in protecting minorities and in promoting and protecting the rights of persons belonging to minorities is taken into account. The Preamble goes on to recognize “the need to ensure even more effective implementation of international instruments with regard to the rights of persons belonging” to minorities.

It may be noted that the Preamble is not innovative. It adds nothing to the rather insufficient Article 27 of the CP Covenant, particularly if this article is 30 I.L.M. 1692, 1694 (1991). See C. Tomuschat, “Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights”, in Volkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift fiir Herman Mosler (R. Bernhardt et al. eds., 1983). 16 Lerner, Group Rights, supra note 4, at 30. 14 15

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liberally interpreted, as advocated by authoritative scholars. I have discussed the issue elsewhere.17 The Preamble does not define minorities,18 nor does it explain why it incorporates the words “national minorities”, which are not used in Article 27. In the absence of such an explanation, and in view of the general orientation of the Declaration, it would appear that the term “national minorities” is strictly equivalent to “ethnic, religious and linguistic minorities”. The use of the conjunction “or” confirms this interpretation. A different interpretation would imply that the Declaration intended to make a distinction between some particular minorities, with specific political aims, and other minorities that only aspire to satisfy specific interests that distinguish them from the majority or other sectors of the population. Such a distinction is not supported by the text. B. Obligations of States The Declaration contains nine articles, most of which describe the obligations undertaken by States. Article 1 involves some progress in comparison to the general, rather conservative, spirit of the document. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities. Beyond that, States shall encourage conditions for the promotion of that identity. To achieve these ends, States shall adopt appropriate measures, legislative and others. This is certainly a more positive approach than the passive and reluctant attitude expressed in Article 27 of the CP Covenant. Article 1 does not refer to rights of persons, but to the identity of minorities, namely a group right. Of course, the protection of the collective identity also implies the protection of the individual person who is a member of a group. Article 27 of the CP Covenant deals only with certain rights to be enjoyed in community with the other members of the group. To protect the identity of the minority means recognizing the existence of a collective entity with its own rights, beyond the individual and collective rights of individuals. Some rights can only be exercised collectively, because of their own nature. A person cannot belong to a religious community if there is no recognition of the right of individuals to join others to form such a community. In addition, a community has its own personality, independent of that of its members, and is entitled to some rights of its own, besides the collective rights of its members.19

Ibid., 15–16. On definitions of the term “minority”, see supra note 10. 19 In this respect, see Article 6 of the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Also, Lerner, Group Rights, supra note 4, at 75 ff. 17 18

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Article 1 urges States to encourage conditions for the promotion of the identity of the minority. This is a positive development which brings the Declaration more in line with some other modern instruments. This Article can be interpreted broadly as encouraging affirmative action in favor of minorities. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination,20 the 1989 ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries,21 the 1978 UNESCO Declaration on Race and Racial Prejudice,22 inter alia, follow such orientation, which is also expressed in recent documents that will be mentioned below. The protection of the identity of minorities involves the recognition of their right to preserve such identity. The creation of conditions for the promotion of that identity means the recognition of its social value. Implicitly then, Article 1 precludes any practices of forced assimilation of minorities. The notion of “identity” is not defined. It is therefore permissible to interpret it broadly, as delineating the qualities that distinguish a minority from other groups within society, qualities that deserve to be protected and promoted. The classic formulation by the Permanent Court of International Justice in the Minority Schools in Albania case23 is obviously relevant. Article 4 details the duties of States regarding minorities. States are expected to ensure that persons belonging to minorities fully enjoy their human rights and fundamental freedoms, without any discrimination and in full equality before the law. Such persons should be able to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices violate national law or are contrary to international standards. States should provide such persons with “adequate opportunities” to learn their mother tongue or to have instruction in their mother tongue. States should also take measures to encourage knowledge of the history, traditions, language and culture of the minorities living within their boundaries. This wording may be interpreted as only protecting “old” minorities, as different from new immigrants.24 This should not preclude the right of members of minorities “to gain knowledge of the society as a whole”. 20

The Convention was opened for signature in 1966. 28 I.L.M. 1382 (1989). 22 United Nations, Human Rights, A Compilation of International Instruments 135 (UNP Sales No. E. 88. XIV. 1). 23 [1935] P.C.I.J. Ser. A/B, No. 64, at 17, cited in M.O. Hudson, 3 World Court Reports 484, 496 (1969). The Court determined that minorities should be given the possibility of “living peacefully” alongside the general population, “while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs”. To this effect, it is necessary “to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics”. 24 On “new minorities” see, inter alia, R. Wolfrum, “The Emergence of ‘New Minorities’ as a Result of Migration,” in Peoples and Minorities in International Law, supra note 4, at 153–66. 21

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“The legitimate interests of persons belonging to minorities” should be given due regard in national policies and programmes and in programmes of international cooperation and assistance (Article 5). In order to promote mutual understanding and confidence, States should also cooperate on questions relating to such persons (Article 6) and in the promotion of the rights proclaimed in the Declaration. C. A Catalog of Rights In its five paragraphs, Article 2 contains a catalog of rights granted to “persons belonging to national or ethnic, religious and linguistic minorities”. According to Article 3, such persons may exercise their rights individually, as well as in community with other members of their group, without any discrimination. The exercise or non-exercise of the rights recognized in the Declaration should not result in any disadvantage for such persons. Article 2 grants to persons belonging to minorities the following rights: 1. To enjoy their own culture, to profess and practise their own religion, and to use their own language in private and in public, freely and without interference or any form of discrimination.

This paragraph is clearly inspired by Article 27 of the CP Covenant, although it contains some improvements. It avoids the negative wording of Article 27 (“persons . . . shall not be denied the right . . .”) and the discussion on old and new minorities (“In those states in which . . . minorities exist . . .”). It also spells out that the rights may be exercised in private and in public, and prohibits interference or discrimination. 2. To participate effectively in cultural, religious, social, economic and public life.

It should again be stressed that this right is recognized for “persons belonging to minorities”. It seems appropriate to ask whether such participation can be effective if the State does not recognize the group as a legal personality in order to coordinate and direct the above-mentioned participation. The next paragraph partially answers this question. 3. To participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.

The respective constitutional system will determine the way in which effective participation will be possible, as well as the extent of recognition of the collective person that is the minority. History and tradition play a role in this respect. The next paragraphs contemplate measures to the effect of achieving such participation. 4. To establish and maintain their own associations.

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5. To establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties.

Paragraphs 4 and 5 are important. Although the text does not go as far as referring to rights of the group qua group, it does introduce a group dimension. Institutions and external contact, at the national and international levels, are obviously activities demanding organization and group consciousness. A restrictive interpretation of the Article in this respect would not be logical. Moreover, it is hard to imagine that the drafters of the Declaration were ready to recognize the right to such contacts only at an individual level, and not at the institutional or communal level. The Declaration would otherwise be superfluous, since the right to associate and communicate is the essence of any democratic society. Of course, the wording could have been more outspoken and these rights should be clearly recognized as belonging to members of the minority and to the minority as such.25 Paragraph 5 acknowledges the fact that many minorities maintain close contacts with similar groups in other countries and with states that they consider to be their “kin-States.” Article 8 coordinates the Declaration with other instruments. Nothing in the Declaration shall prevent the fulfillment in good faith of international obligations and commitments of States under international treaties (paragraph 1). The exercise of the rights set forth in the Declaration shall not prejudice the enjoyment of human rights and fundamental freedoms (paragraph 2). Measures taken by States to ensure the effective enjoyment of the rights proclaimed shall not prima facie be considered contrary to the principle of equality (paragraph 3). This last paragraph implies the recognition of measures involving affirmative action. Article 8, paragraph 4 shows the cautious approach of the drafters. Nothing in the Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States. In other words, the Declaration should not be interpreted as stimulating secession or disruption of existing States. This limitation is also stipulated in other international instruments. The international community is not interested in jeopardizing the existence or the borders of existing States. The last article, Article 9, deals with the contribution of specialized agencies and other international organizations to the full realization of the rights and principles enunciated in the Declaration. It does not involve any special problem.

25

Cf. Lerner, supra note 4, at 34 et seq.

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IV. The Declaration and Contemporary Minorities Rights Every attempt to evaluate the possible influence of the United Nations Declaration requires a comparison with other recent instruments. Outstanding among them is the document issued by the CSCE Meeting of Experts on National Minorities that took place in Geneva in July 1991.26 The drafters of both documents have adopted the term “national minorities”, as bearers of “ethnic, cultural, linguistic and religious identity”, in the words of the CSCE Report. Both documents contain a reference to the need to “protect” that identity and to encourage conditions for the “promotion” of that identity. But while the UN Declaration, inspired by Article 27 of the CP Covenant, stresses the rights of persons belonging to minorities, the CSCE Report shows awareness of the fact that “national minorities form an integral part of the society of the States in which they live and that they are a factor of enrichment of each respective State and society”. In other words, according to the CSCE Report, minorities are a positive fact of social life. In the UN document, in the tradition of Article 27 of the CP Covenant although less negative, the approach to minorities is at best neutral or passive. As indicated, Article 1 of the Declaration is more liberal in this respect, since it also refers to the promotion of the identity of minorities, not mentioned in Article 27. The CSCE Report also goes a step further when it spells out that issues regarding national minorities “are matters of legitimate international concern and consequently do not exclusively constitute an internal affair of the respective State”. While both instruments forbid discrimination and both stimulate participation of members of the minority in the public life of the respective countries, the CSCE Report refers explicitly to the right to be free of any attempt at assimilation against the will of persons belonging to national minorities. To that effect, the Report calls for measures to protect the ethnic, cultural, linguistic and religious identity of national minorities and to create conditions for the promotion of that identity. The CSCE Report also goes beyond the Declaration in the enunciation of institutional, electoral, educational, linguistic and other arrangements, including territorial autonomy and self-administration by national minorities of aspects concerning their identity, where territorial autonomy does not apply. This provision of self-administration is of importance for religious or linguistic minorities not concentrated in specific areas. While the Declaration refers to “contact across frontiers with citizens of other States to whom they are related

26 Supra note 14. On the CSCE Helsinki Process and the 1990 Charter of Paris for a New Europe, see S. J. Roth, “The CSCE ‘Charter of Paris for a New Europe’, a New Chapter in the Helsinki Process”, 11 Hum. Rts. L.J. 373–89 (1990).

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by national or ethnic, religious or linguistic ties”, the Report refers to participation in “international non-governmental organizations”. Except for the prohibition of discrimination against members of minorities, the UN Declaration does not deal with concrete evils inflicted upon minorities. The CSCE Report calls upon States to adopt laws that would prohibit acts that constitute incitement to violence based on “national, racial, ethnic or religious discrimination, hostility or hatred, including anti-Semitism”. It also calls for consultations “on crimes that manifest evidence of prejudice and hate”. In addition to the mention of anti-Semitism, the Report also refers to the particular situation of the Roma (gypsies). The UN Declaration appears to be less ambitious than the CSCE statement. One has to keep in mind that the UN Declaration is universal, while the CSCE reflects regional realities and aspirations. It is to be expected that a report submitted by experts will be more flexible than a formal declaration adopted by government representatives, particularly in a sensitive area that in the past has generated controversy. On a strictly European level, the European Convention for the Protection of Minorities drafted by the Council of Europe’s Commission for Democracy through Law also combines an individualistic and a collective approach.27 Another far-reaching document is the draft of an International Convention on the Protection of National or Ethnic Groups or Minorities prepared by the Minority Rights Group in cooperation with the Internationales Institut fur Nationalitatenrecht und Regionalismus.28 There are no indications, however, that a binding treaty on the subject of minorities is contemplated at the universal level in the foreseeable future. The World Conference on Human Rights that met in June 1993 in Vienna included in its Final Outcome a paragraph on minorities.29 More conservative than the text of the General Assembly Declaration, it merely reaffirms the obligation of States to ensure that “persons belonging to minorities may exercise fully and effectively all human rights and fundamental freedoms without any discrimination and in full equality before the law in accordance with the United Nations Declaration on the Rights of Persons Belonging to the National or Ethnic, Religious and Linguistic Minorities”. The paragraph notes “the importance of the promotion and protection of the rights of persons belonging to minorities and the contribution of such promotion and protection to the political and social stability of the States in which such persons 27 Cf. Thomberry, supra note 4, at 299 ff.; M. Nowak, “The Evolution of Minority Rights in International Law”, in Peoples and Minorities in International Law, supra note 4, at 103–18. On the European Convention, see following chapter. 28 UN Doc. E/CN.4/NGO/231 (1979). 29 UN Doc. A/CONF.157/DC/1 (25 June 1993).

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live”, and repeats the text of Article 27 of the Covenant. The acknowledgment, in the General Assembly Declaration, of the group rights of minorities is ignored in the Final Outcome of the Vienna Conference. V. Conclusion There was a need for an updated international instrument on minorities – at least a United Nations Declaration. Article 27 is insufficient, even when liberally interpreted. Post Cold War international society must focus its attention on the many minorities problems that threaten world security and peace. The diversity of situations requires a flexible approach. In some cases, the individualistic approach that followed World War II – the emphasis on basic human rights – will still be valid and useful. In other cases, acknowledgment of the demands of minority groups that seek recognition of their collective identity and claim rights that are a corollary to that identity, can no longer be delayed, if tension and perhaps violence are to be avoided. This should be seen as an urgent task for constitutional as well as for international law-makers. In drafting adequate instruments, the distinction must be kept in mind between situations involving a claim of self-determination and aspirations of political independence – as a rule related to regional concentration – and cases of scattered minorities or groups – religious groups and linguistic minorities being the outstanding examples. The aspirations of the two different types of minorities are different, and must be treated differently. The adopted Declaration offers only a limited answer to the present issues in the area of minorities. It is a step forward in comparison to Article 27 of the CP Covenant. It is also helpful in clarifying the distinction between individual human rights, collective human rights and the rights of the group as such. The Declaration is not ambitious. Some of its provisions, including its title, are unclear. When minorities should be described as national minorities is a question which is not answered in the Declaration. On the other hand, the catalog of rights enunciated in Article 2 and the list of duties of the State mentioned in the document – although not a binding instrument – are important, and may be a starting point for further elaboration. In that respect, the role of the Declaration on Minorities can be compared to other meaningful instruments – the Declaration on Intolerance and Discrimination based on Religion, for instance – which became useful stages in the development of international concern in the field of basic human rights.

CHAPTER FIVE

REGIONAL PROTECTION AND SPECIAL ARRANGEMENTS

Former chapters analyzed the protection of religious human rights under the United Nations. This chapter addresses the protection extended to rights related to religion by the main regional systems of human rights. Regional affinities are an important element in the development of such systems. It is therefore not surprising that the most satisfactory protection is that prevailing in Europe. The European Commission and Court of Human Rights dealt frequently with issues pertaining to this area, and some of their decisions are also discussed elsewhere in this book. The European institutional arrangements concerning monitoring of human rights are now undergoing a basic change, which, it is hoped, will improve protection. In addition, the Organization for Security and Cooperation in Europe (OSCE)—formerly the Conference for Security and Cooperation in Europe (CSCE)—has recently developed important principles in the area of religious freedoms. In America, monitoring and judicial activity in respect of religious human rights has been scarce, and the Inter-American Court has had no opportunity to issue any important judgment in this respect. As to Africa, the African Commission on Human and Peoples’ Rights has not been too creative. Although not a regional system in a geographical sense, the approach of Islam to religious human rights will also be summarily referred to. So will some special bilateral arrangements. Europe The literature on the European system for the protection of human rights, including religious rights, is vast.1 Several books deal specifically with the activities of the European Court and Commission of Human Rights.2 The

1 For the European human rights system in general, see Mark W. Janis et al., European Human Rights Law (1995); Miriellc Delmas-Marty, ed., The European Convention for the Protection of Human Rights (1992); Peter Van Dijk and G. J. H. Van Hoof, Theory and Practice of the European Convention on Human Rights (1998); Donna Gomien et al., Law and Practice of the European Convention on Human Rights and the European Social Charter (1996). 2 See, inter alia, J. G. Merrills, The Development of International Law by the European Court of Human Rights (1993); Arie Bloed et al., eds., Monitoring Human Rights in Europe (1993).

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court’s decisions on issues of proselytism have provoked considerable interest, as we shall see. Some of these works refer specifically to religious rights.3 The major European human rights documents follow in general the orientation of the 1948 Universal Declaration of Human Rights and the 1966 International Covenants. The basic provisions of these documents recur with some variations and expansions in (1) the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms;4 (2) the 1975 Final Act of the Helsinki Conference on Security and Cooperation in Europe (Principle VII); (3) the Concluding Document of the Vienna Meeting of 1989 (particularly Principles 16 and 17); (4) the 1990 Document of the Copenhagen Meeting of the CSCE Conference on the Human Dimension; and (5) the 1990 Paris Charter for a New Europe.5 The basic guarantee is set out in Article 9 of the 1950 European Convention. Paragraph 1 is identical to Article 18 of the Universal Declaration of Human Rights. Paragraph 2, to be compared with Article 18, paragraph 3 of the International Covenant on Civil and Political Rights, states: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The words “necessary in a democratic society” are absent from the covenant. They were inserted in the European text instead of a reference to limitations in the interests of national security in an earlier draft. The European Convention did not incorporate a provision intended to preserve national rules restricting the rights of certain religions.6

3 For a comprehensive and updated survey, including the historical development, see Malcolm D. Evans, Religious Liberty and International Law in Europe (1997). See also Malcolm N. Shaw, “Freedom of Thought, Conscience and Religion,” in The European System for the Protection of Human Rights, ed. Ronald St. J. Macdonald et al. (1993), 445–463. See also 9 (3) Helsinki Monitor (1998), a special issue on freedom of religion or belief. 4 213 U.N.T.S. 211. The convention has its origin in a draft prepared in 1949 by the European Movement. It included a reference to freedom of religious belief, practice, and teaching. 5 For the CSCE documents, see Directorate of Human Rights, Council of Europe, Human Rights in International Law: Basic Texts (1992). For the work of the CSCE in general, see Arie Bloed, ed., The Conference on Security and Cooperation in Europe: Analysis and Basic Documents (1993). For the work of the OSCE High Commissioner on Minorities, see Walter A. Kemp (ed.), Quiet Diplomacy in Action : the OSCE High Commissioner on National Minorities, 2001. 6 Such were the cases of Sweden and Turkey. The issue was solved allowing reservations in respect of possible contradictions between the convention and national laws not in conformity with it. For the drafting process, see Evans, Religious Liberty and International Law in Europe, 264–272.

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Other provisions of the Convention deal with privacy, family life, freedom of expression and its limits, freedom of association and assembly and their limits, marriage, and prohibition of discrimination on religious grounds. Article 2 of the First Protocol to the Convention, adopted in 1952, proclaims the need to respect the rights of parents to ensure education and teaching in conformity with their own religious and philosophical convictions. This Article caused controversy and some states entered reservations to it.7 As to the OSCE, Principle VII of the 1975 Final Act of the Helsinki Conference on Security and Cooperation in Europe refers to the promise of the participating states to respect human rights and fundamental freedoms— including the freedoms of thought, conscience, and religion and belief—for all, without distinction as to race, sex, language, or religion. The Concluding Document of the Vienna Meeting of 1989 (CSCE) contains two important principles (16 and 17) related to religious human rights. In order to ensure freedom to profess and practice religion or belief, the participating states will take effective measures to prevent and eliminate discrimination against individuals or communities on grounds of religion or belief and ensure the effective equality between believers and nonbelievers (16a). They will foster a climate of mutual tolerance and respect between believers of different communities as well as between believers and nonbelievers (16b). Religious communities have the right to establish and maintain places of worship and assembly, to organize themselves according to their own hierarchical and institutional structure, to freely appoint and replace their personnel, and to solicit and receive financial and other contributions (16d). Participating states should engage in consultations with religious faiths, institutions, and organizations in order to understand their requirements (16e). The right to give and receive religious education in the language of one’s choice and parental rights regarding the religious and moral education of their children are recognized (16f and 16g). Provisions on the training of religious personnel, and on books and publications are also included in Principle 16. Principle 17 solidifies the rights espoused in Principle 16 by asserting that the exercise of the mentioned rights may be subject only to limitations established by law and consistent with international law. According to Principle 17, domestic laws and regulations must ensure the full and effective implementation of the freedoms of thought, conscience, and religion or belief.8

7 Ibid., 272ff. Gomien et al., Law and Practice of the European Convention, 264, points out that Article 9 is the only one among the articles with a similar structure that does not allow invocation of national security to restrict the protected rights. 8 On Principles 16 and 17, see W. Cole Durham Jr., “Perspectives on Religious Liberty: A Comparative Framework,” in Religious Rights in Global Perspective: Legal Perspectives, ed. Johan D. van der Vyver and John Witte Jr. (1996): 1–44, at 33ff.

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The Concluding Document of the Vienna Meeting of 1989 was adopted on June 29, 1990, by the Copenhagen Meeting of the CSCE Conference on the Human Dimension. It proclaims in Article 9.4 everyone’s right to freedom of thought, conscience, and religion, including the right to change and manifest one’s religion or belief. Article 18 addresses conscientious objection. Articles 24 and 25 address limitations and derogations. Article 40 condemns totalitarianism, racial and ethnic hatred, anti-Semitism, xenophobia, and persecution on religious grounds. Article 40.1 urges states to adopt laws “to provide protection against . . . incitement to violence against persons or groups based on national, racial, ethnic, or religious discrimination, hostility or hatred, including anti-Semitism.” The monitoring of human rights by the Council of Europe, the OSCE, and the European Union has produced significant case law with regard to religious rights. Some cases directly addressed the issue of religion, while others dealt with related matters such as education, the exercise and manifestation of religious rights, freedom of expression, conscientious objections, medical issues, parental rights, and employment.9 Several decisions are mentioned in different chapters of this work. European case law is not always consistent, and there have been differences of opinion between the European Commission and the European Court on Human Rights. It is beyond the scope of this book to deal in detail with the numerous cases considered by the European Human Rights Commission and Court. Nevertheless, some cases are notable and deserve mention, especially as they suggest a prevailing trend. The two leading cases related to proselytism are Kokkinakis and Larissis, and these are discussed below. Other cases have addressed the meaning of salient terms including: religion and belief; coercion; necessary in a democratic society; margin of appreciation; and practice and manifestation of belief. Other cases have also addressed important concepts such as parental rights and convictions, and freedom of expression and religion. In sum, the monitoring of human rights by the European system was instrumental in clarifying the scope of religious rights and freedoms. One of the most notable cases is Arrowsmith v. UK, in which the European Commission on Human Rights decided that the right to manifest beliefs included beliefs of a nonreligious nature, such as pacifism.10 Not all ideas or 9 For a detailed and updated survey on European case law with emphasis on religious liberty, see Evans, Religious Liberty and International Law in Europe. For a critical commentary on the negative side of the Strasbourg case law, because of its inclination toward enshrining the absolute supremacy of neutral laws over the individual conscience and what the authors call “secular intolerance” and “aggressive and compulsory secularism (laicite),” see Javier MartinezTorron and Rafael Navarro-Valls, “The Protection of Religious Freedom in the System of the European Convention on Human Rights,” in 9 (3) Helsinki Monitor (1998). See also, below, chapter on the Court’s decision in the Turkish headscarf case. On the role of the European Court of Justice, see Iris Canor, The Limits of judicial Discretion in the European Court of Justice (1998), emphasizing security and foreign affairs issues. 10 Arrowsmith v. United Kingdom, App. No. 7050/75, 8 Eur. Commn H.R. Dec. &Rep. 123(1978).

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views are to be considered beliefs for the purposes of Article 9 of the 1950 European Convention, the commission held. The term belief connotes the expression of spiritual or philosophical convictions that, while not necessarily organized as a religion, have an identifiable formal content. According to Arrowsmith, the distribution of leaflets with pacifist views may amount to a manifestation within the meaning of Article 9(1) of the convention. In Campbell and Cosans v. UK, the European Court held that the term belief means views that attain a certain level of cogency, seriousness, cohesion, and importance.11 Therefore, not all opinions or ideas are beliefs in the context of Article 2 of the First Protocol. A belief of a nonreligious nature may be considered within the scope of Article 9 of the European Convention if it relates to a well-established school of thought, such as atheism or pacifism. According to Malcolm Evans, the mainstream religious traditions, such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, are clearly embraced, while the beliefs of Jehovah’s Witnesses, the Church of Scientology, and the Unification Church (the “Moonies”) have been mostly acknowledged.12 In Chappel v. UK, the commission avoided deciding whether Druidism was a religion for the purposes of Article 9, but justified restrictions imposed under Article 9(2).13 An association of physicians espousing antiabortionist views was considered to be within the scope of Article 9, while a group of political prisoners opposed to wearing prison uniforms was deemed to be outside the protection of Article 9. In Otto Preminger Institute v. Austria, the commission and the court reached different conclusions regarding the questions of freedom of expression, blasphemy, and respect for the religious beliefs of others.14 The commission decided that the forfeiture and seizure of a film that it considered merely satirical violated Article 10 of the convention. The court, on the other hand, decided that the right to express controversial views had to be weighed against the rights of other persons in not being exposed to those views.15

11

Case of Campbell and Cosans, 48 Eur. Ct. H.R. (ser. A) (1982). See Evans, Religious Liberty and International Law in Europe, 290, citing the relevant case law. Evans points out that when there are doubts concerning the status of an alleged religion, the applicant must demonstrate its existence. In Hazar v. Turkey, App. No. 16311/90, 16312/90 and 16313/90, 72 Eur. Commn H.R. Dec. & Rep. 200 (1991), the commission accepted, for the purposes of admissibility, that Communism fell within the terms of Article 9. 13 Chappel v. United Kingdom, App. No. 12587/86, 53 Eur. Commn H.R. Dec. & Rep. 241 (1987). 14 For the commission, see Otto Preminger lnstitut v. Austria, App. No. 13470/87, 69 Eur. Commn H.R. Dec. & Rep. 173 (1993); for the court, see Otto Preminger lnstitut v. Austria, 295 Eur. Ct. H.R. (ser. A) (1994). 15 The court’s decision was criticized on the grounds that it granted too much margin of discretion to the state and that the convention did not contain any reference to the need to respect the religion of others. See Evans, Religious Liberty and International Law in Europe, 337–339. See also the Gay News case, X Ltd. v. United Kingdom, App. No. 8710/79, 28 Eur. Commn H.R. Dec. & Rep. 77 (1982) and Wingrove v. United Kingdom (1996). 12

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After some initial hesitancy the benef its of Article 9 have been made available to churches and other legal entities who have been able to submit applications directly and on behalf of their members. A church body is capable of possessing and exercising the rights contained in Article 9(1) in its own capacity as a representative of its members, according to the commission. Nevertheless, such a right belongs only to entities with religious and philosophical aims and not to economic enterprises. There may be some borderline cases, such as when a limited liability company owned by an association of freethinkers acts for the separation of church and state. It therefore has become necessary to make a distinction between freedom of religion, which can be exercised by an association, and freedom of conscience, which cannot. This distinction has been criticized.16 Some authorities believe that only the rights of individuals – as opposed to the rights and locus standi of religious groups and minorities – should be recognized. This view was expressed in documents such as the 1992 United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious, and Linguistic Minorities and the 1995 Framework Convention for the Protection of National Minorities of the Council of Europe, as well as CSCE texts. The relationship between religious rights and education has also been the subject of many decisions by the European tribunals. In Kjeldsen, Busk Madsen and Pedersen v. Denmark, for example, the European Court held that the state is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions.17 The commission decided that requiring children to attend classes on society and morality was not a form of indoctrination.18 When individuals protest acts mandated by the authorities in areas such as taxation, pension schemes, and elections, the European Commission has generally followed the rule that if the individuals are able to continue in their beliefs, the forum internum remains untouched and there is no breach of Article 9.19 In Darby v. Sweden, however, the commission, in deciding the case of a 16 See Evans, Religious Liberty and International Law in Europe, 286–289, also citing the relevant decisions. 17 48 Eur. Ct. H.R. (ser. A) (1982), para. 53. See also Angelini v. Sweden, app. No. 1049/83, 10 E.H.R.R. (1988) 123; Hartikainen et al. v. Finland (R.9/40) HRC 36, 147, also considered by the Human Rights Committee, Hartikainen v. Finland, Communication No. 40/1978, in Selected Decisions. 18 See Bernard v. Luxembourg, App. No. 17187/90, 75 Eur. Commn H.R. Dec. & Rep. 57(1993). 19 Evans, Religious Liberty and International Law in Europe, 295. The commission also stated that it is permissible to require an Orthodox Jew to send a letter of repudiation to his ex-wife, or to pay damages if he refuses to do so. No violation of religious rights is involved because Jewish religious norms are not affected. D. v. France, App. No. 10180/82, 35 Eur. Commn H.R. Dec. 8c Rep. 199 (1983).

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non-Lutheran Finnish citizen who was requested to pay a tax to the Swedish Lutheran Church, declared that Article 9(1) forbids an authority from involving a person in religious activities against his will when he is not a member of the respective religious community.20 In summary, the European system, in its attempt to protect human rights, has fostered the development and clarification of the law concerning religion and belief. Despite a lack of overall consistency and criticism regarding its views on sects, cults, and new religions, the commission and the court have produced a body of notable jurisprudence. In order to complete the overview of the European system for the protection of religious human rights, it is necessary to mention the European Framework Convention for the Protection of National Minorities adopted by the Council of Europe’s Committee of Ministers on November 10, 1994.21 Despite its restrictive title, the Framework Convention urged the universal respect for “the religious identity of each person belonging to a national minority,” as well as the creation of “appropriate conditions enabling (minorities) to express, preserve and develop this identity.” This implies the right to full and effective equality, the prohibition of discrimination, and the “right of persons belonging to national minorities . . . to maintain and develop . . . the essential elements of their identity, namely their religion, language, traditions and cultural heritage” (Article 5). Although forced assimilation was proscribed, the convention’s dictates were not group oriented, and the convention did not recognize collective rights. This ref lected the compromises necessary for the convention to create the first legally binding multilateral instrument devoted to the protection of minorities in general. In fact, twelve ratifications were required. Beyond the indicated references, religious rights of minorities were not specified. Another document worthy of mention is the text elaborated by the CSCE Meeting of Experts on National Minorities that took place in Geneva in July 1991. The term national minorities was adopted for the bearers of religious identity. According to the text, such identity should be protected and promoted, as minorities are seen as “a factor of enrichment of each respective State and society.” Furthermore, the text emphasized that issues regarding minorities are matters of “legitimate international concern and consequently do not exclusively constitute an internal affair of the respective State.” The CSCE

20

App. No. 11581/85, Rep.1989, paras 50–51. For the text and Explanatory Report, see Council of Europe, Framework Convention for the Protection of National Minorities (Strasbourg, 1995). See also Patrick Thornberry and M. A. Martin Estebanez, The Council of Europe and Minorities (1994); Geoff Gilbert, “The Council of Europe and Minority Rights,” Human Rights Quarterly 18 (1996): 160–189; Jane Wright, “The OSCE and the Protection of Minority Rights,” Human Rights Quarterly 18 (1996): 190–205. 21

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document refers to institutional arrangements, including territorial autonomy and self-administration by minorities with regard to those aspects concerning their identity where territorial autonomy does not apply. This provision of self-administration is especially important for religious minorities not concentrated in specific areas and affects the relations between the religious minority and the state, on the one hand, and the relations between the group and its individual members, on the other. The Americas The regional American system for the protection of human rights is based on the obligations emanating from the 1960 Convention on Human Rights.22 The 1948 Charter of the Organization of American States contains few requirements for human rights. The American Declaration of the Rights of Man, proclaimed the same year, did not form part of the charter, and was not seen as positive law. Freedom of conscience and religion is proclaimed in Article 12 of the 1960 Convention on Human Rights, while freedom of thought and expression is the subject of Article 13. Specifically, Article 12(1) provides that everyone has the right to freedom of conscience and religion, including the freedom “to maintain or to change one’s religion or beliefs.” According to Article 12(2), no one “shall be subject to restrictions that might impair the freedom to maintain or to change his religion or beliefs.” Article 13(1) includes the freedom to impart information and ideas through any medium. This article was broadly interpreted by the Inter-American Court of Human Rights, which stressed that the expression and dissemination of ideas are indivisible concepts.23 The Inter-American Commission on Human Rights, which started its work in 1960, has played an important role in the development of human rights, even though the commission has had different functions in both the charter and the convention. Since 1970 the Inter-American Commission on Human Rights has performed its duties on behalf of the Organization of American States (OAS). Its statute was incorporated into the 1948 Charter of the Organization of American States. 22 For the text, see O.A.S. Treaty Series No. 36. On the subject generally, see Thomas Buergenthal, “The Inter-American System for the Protection of Human Rights,” in Human Rights in International Law, ed. Theodor Meron (1983); Thomas Buergenthal et al., Protecting Human Rights in the Americas (1995); Scott Davidson, The Inter-American Human Rights System (1997); Scott Davidson, The Inter-American Court of Human Rights (1992). 23 See Case 9178, Inter-American Commission on Human Rights, reported in Human Rights Law Journal 6 (1985): 211. Costa Rica asked the court to interpret Article 13 and give an advisory opinion on it.

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Few cases concerning religious rights have come to the attention of the monitoring institutions, even in the face of massive and widespread violations of basic rights. This can be explained by the fact that American institutions have been preoccupied with questions of fact and the proof of fact relating to breaches of human rights rather than with the content of these norms.24 As a result, most cases have involved killings, disappearances, torture, arbitrary detention, denial of due process, and other major attacks upon fundamental rights. Several cases have addressed issues involving Jehovah’s Witnesses, a sect that as a group has been subject to restrictions while its individual members have been subject to criminal procedures and penalties. For example, the Argentine government in 1976 prohibited the activities of the Jehovah’s Witnesses, and the army closed their offices and shops and arrested members of the sect. Children of Jehovah’s Witnesses were expelled from school, based on the claim that they refused to sing the national anthem. The treatment of the sect was denounced, and a case involving Jehovah’s Witnesses subsequently came before the Inter-American Commission. The commission declared that the government of Argentina violated several rights, including freedom of religion, and ordered it to reestablish respect for religious freedom. In response, the Argentine authorities denied the religious nature of the Jehovah’s Witnesses. After considering the annual report of the commission, the General Assembly of the OAS urged the Argentine government to acknowledge the right of Jehovah’s Witnesses to freedom of religion.25 A similar case involving the denial of rights to Jehovah’s Witnesses in Paraguay was also considered by the commission.26 Sometimes issues are raised by religious groups whose members can be concerned with personal rather than religious rights. For example, the issue of abortion has been raised in a petition filed against the United States by an organization called Catholics for Christian Political Action. The group did not focus on the religious aspect of abortion, but rather on the right to life and when it begins. Ultimately, the Inter-American Commission decided that there had been no violation of the American Declaration of the Rights of Man.27 In addition, the Inter-American monitoring system also considered allegations of persecutions of priests and the Catholic Church in Guatemala.28

Sec Davidson, Inter-American Human Rights System, 260. OEA/Ser. I./V./II.49, doc. 19, corr. 1, 251–254 (1980). See also Buergenthal et al., Protecting Human Rights in the Americas, 391–392 n. 70. 26 See OEA/Ser. P.AG/Com.I/Acta 5/80 (1980). 27 See, OEA/Ser. L/V/II.54, doc.9, rev.l, 25 (1981). 28 See, OEA/Ser. L/V/II.53, doc. 21, rev.2, 72–83 (1981). 24

25 ` See

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Africa The African Charter on Human and Peoples’ Rights is an important source when determining the human and religious rights of Africans.29 Article 8 of the African Charter, which guarantees freedom of conscience and the free practice of religion, is particularly important. Article 9, which proclaims a general right to disseminate opinions, is also relevant. Significantly, the charter does not contain any specific provision on change of religion. Despite the charter, the African Commission on Human Rights has not determined clearly what constitutes a violation of the freedom of religion and conscience. Also, the commission has failed to define a savings clause, whose language (subject to law and order) may limit the reach of the charter. The commission did consider a few cases addressing religious rights, such as Amnesty International v. Sudan (involving prisoners of conscience) and Association of Member Episcopal Conferences v. Sudan (involving the alleged persecution of Christians in Sudan). The commission consolidated the cases with previous ones and asked permission from the Sudanese government to conduct investigations.30 (It was alleged that missionaries were expelled from the town of Juba, priests were arrested, and churches were destroyed.) The commission also asked permission to visit Zaire, Malawi, Chad, Senegal, Mauritania, and Nigeria. In 1995 Algeria invited the commission to conduct an on-the-spot investigation on human rights.31 Evelyn Ankumah, a Ghanaian jurist who has studied the work of the commission, has called upon the commission to make “a clear and reasoned determination as to what constitutes violation of freedom of religion.” Ankumah believes that the suppression of freedom of religion in one state is likely to threaten the security of a neighboring state. In particular, she has singled out the need to address the issue of change of religion.32 Islam Islam is a world religion and not a regional entity. Nevertheless, it is worthy of mention because of the consolidated interests of Muslim states. These interests have been formalized through the Organization of the Islamic Conference, 29 For the text, see African Charter on Human and Peoples’ Rights, January 7–19, 1981, 21 I.L.M. 58 (1982). On the system generally, see Fatsah Ouguergouz, La Charte Africaine des Droits de I’Homme et des Peuples (1993); U. Oji Umozurike, The African Charter on Human and Peoples’ Rights (1997); Evelyn A. Ankumah, The African Commission on Human and Peoples’ Rights (1996). 30 For a detailed analysis of the procedural rules of the Commission, see Ankumah, The African Commission on Human and Peoples’ Rights, chaps. 2 and 3. 31 Umozurike, The African Charter on Human and Peoples’ Rights, 67ff. Umozurike is a former chairman of the African Commission on Human Rights. 32 Ankumah, The African Commission on Human and Peoples’ Rights, 134.

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which was formed in 1972 when the Third Islamic Conference of Foreign Ministers adopted its charter. Membership is open to every Muslim state, including states where Islam is the official state religion and other states where the majority of the population is Muslim.33 For Islamic states, the Cairo Declaration on Human Rights (1990) is seen as the authoritative document reflecting the Islamic approach to international human rights. Particularly noteworthy is Article 10 of the declaration, which prohibits “any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” Article 22, which allows freedom of expression in a manner “as would not be contrary to the principles of the Shari’a,” is also salient.34 Juliane Kokott has addressed the apparent dichotomy between the traditional notions of Islam and the rules governing modern human rights.35 Kokott asserts that Islam is compatible with universal human rights, but Islamic law, the shari’a, as interpreted more than a millennium ago, contains rules that seem to contradict modern human rights formulations, particularly in the area of freedom of religion and apostasy. Kokott believes that the Cairo Declaration “tends to Islamize human rights at the cost of their universality.”36 In general, Islamic nations seem to have difficulty in finding conformity between the shari’a and internationally recognized human rights standards.37 Abdullahi Ahmed An-Na’im asserts that although the Islamic theory of the freedom of belief “was comparatively superior to those of other state-religions in the past and the practice was generally better than the theory, both are no longer acceptable from a modern human rights point of view.”38 Donna E. Arzt refers to the “tortuous” relationship between Islamic law and international law.39 Special and Bilateral Arrangements Although they are not properly forms of regional protection of religious human rights, some bilateral or special arrangements between several states and the Holy See of the Roman Catholic Church (or between several states and 33

For the charter, see 914 U.N.T.S. 103. For the text of the Cairo Declaration on Human Rights, see Tad Stahnke and J. Paul Martin, eds., Religion and Human Rights: Basic Documents (1998), 185. 35 Juliane Kokott, “The Protection of Fundamental Rights Under German and International Law,” African Journal of International and Comparative Law 8 (1996): 347. 36 Ibid., 387. 37 See Felix Ermacora et al., eds., International Human Rights: Documents and Introductory Notes (1993), 324. 38 Abdullah Ahmed An-Na’im, “Islamic Foundations of Religious Human Rights,” in van dcr Vyver and Witte, Religious Human Rights in Global Perspective: Religious Perspectives, 337–359. 39 Donna E. Arzt, “The Treatment of Religious Dissidents Under Classic and Contemporary Islamic Law,” in van der Vyver and Wittc, Religious Human Rights in Global Perspective: Religious Perspectives, 387–453, at 423. 34

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religious institutions or communities of religious origin) are worthy of mention. It is beyond the scope of this work to deal with the constitutional and administrative provisions regarding religious entities or activities or with legislation concerning religious rights. This would encompass an analysis covering a wide range of legal, economic, educational, and political issues. Nevertheless, the Holy See, because of its special nature and its international importance, plays a crucial role in addressing and determining religious human rights. Neither the Holy See nor Vatican City is a member of the United Nations; their status in international law is not absolutely clear. Nevertheless, the Holy See has signed many treaties and has entered into bilateral agreements, in some cases called concordats, with a number of states. In addition, the Holy See has participated in numerous intergovernmental conferences, and it conducts fullscale diplomatic activity in which it is represented by the papal nuncios. (Of course, the Catholic Church and the Pope play an instrumental role in the worldwide Catholic faith community.) In recent years the Holy See has been active and has signed new agreements with several states, and in some cases the new agreements have replaced former ones.40 The 1993 Fundamental Agreement between the Holy See and the State of Israel is particularly noteworthy. This agreement was made in preparation for the establishment of diplomatic relations between the Holy See and Israel. It also incorporated diverse provisions on religious rights.41 But this document has a significance that goes beyond its specific diplomatic purpose: it demonstrates the commitment by two religiously influential entities to uphold the human right to freedom of religion and conscience as set forth in the Universal Declaration of Human Rights. Amending some of the controversial declarations of the Second Vatican Council, the Holy See reiterated its condemnation of hatred, persecution, racism, and all other manifestations of anti-Semitism and religious intolerance. In return, Israel recognized the right of the Catholic Church to carry out its religious, moral, educational, and charitable aims and to allow the church to control its institutions in Israel. The “status quo” in the Christian Holy Places will be maintained, and the freedom of Catholic worship is guaranteed. The agreement also addressed specific topics

40 See Natan Lerner, “Religious Human Rights under the United Nations,” in van der Vyver and Witte, Religious Human Rights in Global Perspective: Legal Perspectives, 79–134. Also see Stahnke and Martin, Religion and Human Rights, 183ff., which contains a selection of texts from agreements and pertinent legislation. 41 For the text, see Holy See—Israel: Fundamental Agreement, December 30, 1993, 33 I.L.M. 153 (1994). On this agreement, see Rafael Palomino Lozano, “El Acucrdo Fundamental entre la Santa Sede y el Estado de Israel,” XXII El Olivo (1998): 69–93; Silvio Ferrari, “Concordats Were Born in the West,” 12/13 La Porta D’Oriente (1998): 37–44; Natan Lcrner, “Protecting Religious Human Rights by Bilateral Arrangements,” 12/13 La Porta D’Oriente (1998), reproduced below.

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such as pilgrimages, schools and institutes of study, cultural exchanges, access to historical documents, charitable functions, property rights, fiscal matters, and commitment to the peaceful resolution of conf licts. Silvio Ferrari underscores the historical significance of this agreement, which he labels “the first real Concordat to be concluded with a non-Christian and non-Western country (at least non-fully Western).” 42 It also has the potential to become a model for future concordats with non-Catholic countries. The agreement was followed by the establishment of full diplomatic relations between the parties. Spain provides a good example of how special bilateral arrangements with religious communities can be productively used. Spain replaced a concordat signed with the Holy See in 1953 with several agreements. These included a basic agreement, which was reached in 1976. Spain also signed separate agreements in 1992 with other Spanish-based religious groups, including the Federation of Evangelical Religious Institutions, the Federation of Jewish Communities, and the Islamic Commission. These agreements were reached under the Spanish Constitution of 1978 and the 1980 Religious Liberty Law. This law allows for agreements of cooperation with religious groups that have achieved notorious influence in Spanish society. The agreements refer to a wide range of subjects including freedom of religion and worship; the status of the respective religious communities, their buildings and premises, cemeteries, personnel, and fiscal issues; religious ceremonies regarding marriages; religious services; assistance to military personnel in prisons, hospitals, community and educational establishments; tax exemptions; holy days and festivities; matters concerning religious and cultural heritage; and dietary practices, including animal slaughter.43 Another country that has been active in modifying its concordat with the Holy See is Colombia, which signed an agreement to ensure full religious freedom to all churches and sects.44 Also, Italy and the Holy See signed an agreement in 1984.45

42

Ferrari, “Concordats Were Born in the West,” 37–38, 44. See Stahnke and Martin, Religion and Human Rights, 183ff.; Ministry of Justice of Spain, Libertad Rcligiosa (Normas reguladoras) (1998); Laws 24, 25 and 26/1992, approving the special agreements, BOE 272 (1992), 38209ff. For the agreements with the Holy See, see Spanish Ministry for Foreign Affairs, Acuerdos entre Espana y la Santa Sede (1976–1979). Also, Rosa Maria Martinez de Codes’ essay in Protecting the Human Rights of Religious Minorities in Eastern Europe (eds. P. G. Dunchin and E. A. Cole), New York, 2002. 44 Report of the Human Rights Committee, U.N. GAOR 47th Sess., Supp. No. 40, 97, U.N. Doc. A/47/40 (1992). 45 Italy — The Holy See: Agreement to Amend the 1929 I.ateran Concordat, February 18, 1984, 24 I.L.M. 1589 (1985). See also Giorgio Sacerdoti, “Jewish Rights under a New Italian Concordat,” Patterns of Prejudice 12 (1978): 26 n. l. 43

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It would be fitting to end this chapter by mentioning unilateral statements or declarations that have greatly influenced religious human rights. One of the most notable declarations is the Declaration on the Relationship of the Church to Non-Christian Religions (Nostra Aetate), adopted on October 28, 1965, by the Second Vatican Council.46 In this declaration the church repudiated all persecutions against any person, including hatred, discrimination, and displays of anti-Semitism. Another notable declaration, “Guidelines and Suggestions for Implementing the Conciliar Declaration Nostra Aetate,” was adopted by the church’s Commission for Religious Relations with the Jews in 1974. This recalls the condemnation by the council of anti-Semitism and all other discrimination. It also makes concrete suggestions regarding liturgy, education, and common social action in the search for social justice and peace.47 The World Council of Churches adopted in 1948 the “Declaration on Religious Liberty,” which stresses the indispensability of freedom of religion for the international order. According to this declaration the right to such freedom should be recognized and observed without distinctions. The declaration further asserts that all persons have the right to determine their own faith and creed; change their belief; express their religious beliefs in worship, teaching, and practice; and form religious organizations. The declaration also acknowledges the rights of parents concerning the religious education of their children and promotes limitations prescribed by law that are necessary to protect order and welfare, morals, and the rights and freedoms of others.48 The legal effect of the above-mentioned declarations is limited because of their unilateral character. Nevertheless, they represent significant steps in attempting to achieve a worldwide system of protection of religious rights.

46 For the text, see International Catholic-Jewish Liaison Committee, Fifteen Years of Catholic-Jewish Dialogue, 1970–1985 (1988), 291. 47 For the text, see ibid., 293. 48 For the text, see Stahnke and Martin, Religion and Human Rights, 207.

CHAPTER SIX

PROTECTING RELIGIOUS GROUPS AND COMMUNITIES

International law after World War II was not group oriented. The general conception that prevailed in modern human rights law centered on the respect for individual rights and the prohibition of discrimination. Little attention was devoted to the protection of groups as such, or of their members as belonging to a group. An early and major exception was the Convention on Genocide, specifically aimed at protecting the physical existence of religious and other collective entities or groups.1 This convention will be discussed separately below. Other manifestations of group hatred, incitement, or defamation are only indirectly dealt with in general instruments on human rights. In this chapter I intend to discuss how international law presently approaches the question of curbing incitement and persecution against collectivities. Religious communities are particularly exposed to such attacks and to severe expressions of intolerance that may become illegal, endangering their victims as well as social peace, even when they do not involve violence. Defamation of groups, group libel, or defamation of persons belonging to a certain group, may affect the rights of the individual and the social standing of the entire group to which the individual belongs. Justice Frankfurter stressed that relationship decades ago. He stated: “A man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs as on his own merits.”2 The need to protect religious groups from discrimination and persecution is strongly felt today.3 Discrimination, at least when it is based on racial

1 For the text, see Human Rights: A Compilation of International Instruments (1993), at 669, U.N. Sales No. E.88.XIV.1 (1988) [hereafter Human Rights]. 2 Beauharnais v. Illinois, 343 U.S. 250, 263 (1952). 3 See, for instance, the controversial International Religious Freedom Act 1998 (H.R. 2431), signed by the United States president on October 27, 1998, calling upon the president to “take diplomatic and other appropriate action with respect to any country that engages in or tolerates violations of religious freedom.” See the Annual Report on International Religious Freedom for 1991, Bureau for Democracy, Human Rights and Labor, Washington (1999). See also the detailed list of violations of religious rights in several countries included in the reports of Special Rapporteur Abdelfattah Amor; Kevin Boyle and Juliet Sheen, eds., Freedom of Religion and Belief: A World Report (1997) (covering persecution against different religious groups in many countries); and Paul Marshall with Lela Gilbert, Their Blood Cries Out (1997) (dealing with the persecutions and discrimination of hundreds of millions of Christians in over sixty countries).

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grounds, is adequately addressed by international law, although the issue of implementation has not been satisfactorily resolved. Discrimination is a welldefined legal notion.4 The prohibition of racial discrimination has become a peremptory norm of international law ( jus cogens),5 and the trend is to accord the same status to discrimination on religious grounds.6 Incitement to discrimination, a subsidiary aspect of the prevention of discrimination, is also clearly forbidden. Hatred and intolerance are less precise terms. Incitement to hatred, or to intolerance and other related evils, is mentioned in some provisions, but international law is still struggling with the need to ensure coordination between basic rights such as freedom of speech or freedom of association, and the right of collective entities, or their members because of membership in such entities, not to be subjected to libel, defamation, hostility, intolerance, or incitement to hatred. The 1966 International Covenant on Civil and Political Rights contains several relevant provisions.7 Article 19 authorizes limitations on freedom of expression to protect the right and reputation of “others.” Article 20 prohibits advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. Articles 10(2) and 11(2) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms8 restrict freedom of expression, assembly and association when necessary in a democratic society in the interests of the “prevention of disorder” and “protection of the reputation or rights of others.” The American Convention on Human Rights refers to everyone’s right to have “his honor respected and his dignity recognized”; to liability to ensure the “reputation of others”; and to penalizing “advocacy of national, racial or religious hatred that constitute incitement to lawless violence or any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin.”9 The U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) calls upon states to take “all appropriate measures to combat intolerance on the grounds of religion or other beliefs.”10 The 1978 UNESCO Declaration on Race and Racial

4 See the definition in Article 1 of the Convention on Racial Discrimination. For the text, see Human Rights, 66. 5 See Jose D. Ingles, Study on the Implementation of Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination, CERD, Positive Measures Designed to Eradicate All Incitement to, or Acts of Racial Discrimination,U.N. Doc. A/CONF.119/10.CERD/2, U.N. Sales No. E.85.XIV.2 at 38 (1986). 6 See Ian Brownlie, Principles of Public International Law, 4th ed. (1980), 513 n. 29. 7 Human Rights, 20. 8 For the text, see Council of Europe, European Convention on Human Rights: Collected Texts (1974). 9 For the text, see 9 I.L.M. 1970. 10 Human Rights, 122.

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Prejudice, in Article 5(3), urges the “mass media and all organized groups within national communities” to refrain from presenting “a stereotyped, partial, unilateral or tendentious picture of individuals and of various human groups.11 According to Article 6, states should take steps “to prohibit and eradicate racism [and] racist propaganda” and should “combat racial prejudice.” The Paris Charter for a New Europe, adopted on November 21, 1990, at the Paris Summit of the Conference on Security and Cooperation in Europe, affirms the determination of the participating states from Europe, the United States, and Canada “to combat all forms of racial and ethnic hatred, anti-Semitism, xenophobia, and discrimination against anyone, as well as persecution on religious and ideological grounds.”12 Relevance of the Convention on Racial Discrimination The above-mentioned declarations, obviously of great moral and political significance, are not positive international law, although they may certainly influence domestic legislation. But the main obligatory provisions concerning incitement against groups, communities, or collective entities are those contained in the U.N. Convention on the Elimination of All Forms of Racial Discrimination, ratified by a large number of states.13 They are obviously relevant to the area of religion, although the convention avoids references to that area. Article 4 of the convention contains provisions concerning incitement, hatred, or hostility against persons and collectivities. It is a controversial article and was subjected to criticism and formal reservations. However, Article 4 has become an important guideline for states, and several have enacted domestic legislation in the spirit of its provisions.14 The article is of obvious relevance to the religious area. Article 4 provides, in its pertinent part: “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred 11

Ibid., 132. See, S. J. Roth, “The CSCE ‘Charter of Paris for a New Europe,’ ” Human Rights Law Journal 11 (1990): 373, 379. 13 See generally Natan Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination (1980); Theodore Meron, Human Rights Law-Making in the United Nations (1986); Egon Schwelb, “The International Convention on the Elimination of All Forms of Racial Discrimination,” International and Comparative Law Quarterly 15 (1966); G. Tenekides, “L’Action des Nations Unies contre la Discrimination Raciale,” Recueil des Cours III (1980): 269. On the implementation of the convention, see Thomas Buergenthal, “Implementing the U.N. Racial Convention,” Texas International Law Journal 12 (1977): 187. See also the Reports of the Committee on the Elimination of Racial Discrimination (GAOR, Supplements No. 18. 14 See Ingles, Study; Lerner, The U.N. Convention. 12

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and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination, and to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination and shall recognize participation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. The text of Article 4 is a compromise. During the entire drafting process, including its last stages in the General Assembly, numerous amendments were submitted.15 In order to achieve agreement, it was necessary to bridge the radical differences between those who saw in Article 4 the “key article” of the convention and those who considered it a threat to the basic freedoms of speech and association. Jose D. Ingles, the special rapporteur designated by the Committee on the Elimination of Racial Discrimination (CERD) to submit a study on the interpretation of Article 4, pointed out that the final text “afforded a compromise between those who wished the enactment of positive legislation to penalize not only ‘incitement to discrimination’ but also the ‘dissemination of ideas based on racial superiority or hatred,’ and those who did not wish to see freedom of speech or assembly impaired.”16 As a consequence of the search for compromise, the text adopted is not entirely satisfactory and contains some shortcomings. With these limitations, the text may be seen as a guideline to interpret in a similar spirit the provisions on incitement in the instruments on religious rights. Clash between Rights The difficulties of some states to go along with the text of Article 4 should not be underestimated. Similar difficulties may be expected if a mandatory convention is drafted with regard to religious incitement. They refer to issues that Lerner, The U.N. Convention, 46. Ingles, Study, 1. See also, Natan Lerner, “Incitement in the Racial Convention: Reach and Shortcomings of Article 4,” Israel Yearbook on Human Rights 222 (1992): 1. 15 16

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are central to the nature of the respective legal systems, although the objections raised by some representatives did not always reflect a real respect for fundamental freedoms or exaggerated the risks involved in the text. The representative of Colombia, for instance, stated that the Parliament of his country would be unable to ratify “a pact contrary to the political constitution of the country and contrary to the norms of public life.” In his view, Article 4 was a throwback to the past, since “punishing ideas, whatever they may be, is to aid and abet tyranny, and leads to the abuse of power. . . . As far as we are concerned and as far as democracy is concerned, ideas should be fought with ideas and reasons; theories must be refuted by arguments and not by the scaffold, prison, exile, confiscation or fines.”17 This apocalyptic appraisal of the dangers inherent in Article 4 seems far away from the support that many democratic countries have given to Article 4 by incorporating its provisions in their internal legislation. But it was impossible to ignore the objections raised by some Western states that were eager to avoid a clash between their legal systems and the convention, and expressed this apprehension in their reservations. For example, when President Carter sent the convention to the U.S. Senate for ratification in 1978, the United States government recommended a reservation stating that nothing in the convention “shall be deemed to require or to authorize legislation or other action . . . which would restrict the right of free speech. . . .” The United States also recommended a declaration indicating the nonexecuting nature of Article 4, among others.18 Italy stated that Article 4 must not “jeopardize the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association. . . . ”19 Declarations or reservations were made upon signature or upon ratification by several states parties. The United Kingdom interpreted Article 4 as requiring the adoption of legislation “only in so far as it may consider with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention” that legislative additions to, or variation of, existing law and practice are necessary to attain the purposes of Article 4.20 In March 1991, at a meeting of CERD, clarification was requested concerning the interpretative statement of the United Kingdom “and its possible adverse implications for the full implementation

17

U.N. Doc A/PV. 1406, at 42–43 (1965). President’s Message, 95th Cong., 2d Sess. (February 23, 1978). 19 Lerner, The U.N. Convention, 183–84. 20 United Nations, Multilateral Treaties in Respect of which the Secretary-General Performs Depository Functions (1978), 97–98. The text of the United Kingdom reservation interpreting Article 4 is also quoted in Lerner, The U.N. Convention, 160. See also Sandra Coliver, ed., Striking a Balance (1992), with an annex on reservations and declarations regarding Article 4 (pp. 394ff.) 18

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of Article 4(b) in the context of the non-prohibition of the British National Party.”21 The interpretation by CERD of the nature of the obligations assumed by states parties to the convention leaves no room for doubt. General Recommendation I of the committee, adopted in 1972, says clearly that the implementation by states parties of the provisions envisaged in Article 4 is obligatory, and, if domestic legislation is not sufficient, it should be supplemented by adequate additional measures.22 As stated by Judge Ingles in the conclusions and recommendations of his study, approved by CERD, Article 4 is not self-executing. However, the “clearcut and unambiguous” provisions of paragraphs (a) and (b) “are not discretionary, but mandatory.”23 States parties are bound to enact implementing legislation in accordance with Article 4, “even if they allege that racial discrimination is unknown or that there are no racist organizations” in their jurisdictions.24 The article has a preventive role, and a reservation retaining the discretion to determine if and when it is necessary to enact adequate legislation would be “incompatible with the object and purpose of the Convention.”25 The rights of free speech and free association are not absolute and are subject to limitations, in accordance with Article 29 of the Universal Declaration and Articles 19 and 21 of the International Covenant on Civil and Political Rights. Some states may be confronted with serious constitutional problems. In pointing out the difficulties the United States may encounter in criminalizing speech and association on the basis of racist content as a result of the content-neutral protection afforded by the First Amendment of the U.S. Constitution, Professor Meron indicates that what may be overly broad for one legal and social system is not so for another. This does not necessarily mean making a value judgment as to which system is superior.26 It may be argued, however, that the convention and CERD did in fact make such a value judgment by opting for the system definitely incorporated into Article 4. For these reasons, constitutional provisions alone, without implementing legislation, are not enough. Article 4 imposes the duty to declare certain acts or activities as offenses punishable by law, and the same applies to participation in organizations that engage in prohibited acts. The imposition of civil

21

U.N. Doc. A/46/18, at 58 (1991). U.N. GAOR supp. (No. 18) at 37, U.N. Doc. A/8718 (1972). 23 Ingles, Study, 37. 24 Ibid. 25 Ibid. See also Statement of CERD at the World Conference to Combat Racism and Racial Discrimination, U.N. GAOR Supp. (No. 18) at 110, U.N. Doc. A/33/18(1978). 26 Meron, Human Rights Law-Making, 28. 22

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liability alone would be insufficient. But the needs of states should be taken into consideration. The adoption of legislation “is a slow process,” and states parties are entitled to complete the process of adjusting their legislation within a reasonable time, subject to the principle that treaties should be observed in good faith.27 The text of Article 4 was adopted by the Third Committee of the U.N. General Assembly after many amendments were submitted. It was necessary to take several separate votes, including on the words “with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention” in the introductory paragraph. Separate votes were also taken on the phrases “all dissemination of ideas based on racial superiority or hatred” and “also the provision of any assistance to racist activities, including the financing thereof,” both in paragraph (a). These formulations were ultimately retained, without any votes against and with five abstentions.28 When the draft was submitted to the General Assembly, a new attempt was made to delete the terms “dissemination of ideas based on racial discrimination or hatred.” An amendment submitted to that effect by five Latin American states was defeated by a vote of 54 against, 25 in favor, and 23 abstentions. This demonstrates the extent to which the question of incitement was considered a difficult one, mainly because of the word hatred. It was recalled that Article 9 of the Declaration on the Elimination of All Forms of Racial Discrimination did not incorporate the term hatred and only condemns propaganda and organizations based on ideas or theories of the superiority of one race or group of persons of one color or ethnic origin with a view to justifying or promoting racial discrimination. The introduction of the term hatred was considered problematic. Is it possible to incriminate the dissemination of ideas based on hatred? Hatred is a feeling, a state of mind, and not a clearly established legal interest, as is the case of discrimination. As to the dissemination of ideas intended to cause racial or religious discrimination or hatred, the question of possible restrictions on scientific research was raised. The lessons of the Nazi regime, prolific in the production of publications apparently scientific in their form but undoubtedly racist in content, were taken into consideration. Today, restrictions imposed upon individuals who argue that the Holocaust never took place or was not of the magnitude asserted by historians—and so accepted even in judicial decisions—are related to the aims of Article 4. They draw a distinction

27 28

Ingles, Study, 39. For a discussion of the drafting process, see Lerner, The U.N. Convention, 1–6, 43–53.

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between legitimate scientific research and the dissemination of ideas and theories intended to provoke racial or religious hatred.29 Article 4 does not require criminal intent. It is the “mere act of dissemination” that is penalized, irrespective of intent or consequences.30 The “With Due Regard” Clause In order to avoid interpretations that states might consider incompatible with their constitutional systems, the sentence beginning with the words “with due regard” was introduced in the opening paragraph of Article 4. This sentence was interpreted as meaning that Article 4 does not impose on states parties any obligation to take measures that “are not fully consistent with its constitutional guarantees of freedom, including freedom of speech and association,” as pointed out by a United States spokesman.31 This interpretation was shared by other states that believed that the “with due regard” formula was sufficient to permit them to sign and ratify the convention. The question is, however, to what extent the “with due regard” clause can be seen as implying neutrality in a clash between the prohibition of incitement to racial (or religious) hatred, on the one hand, and unrestricted freedom of speech and association, on the other. As already indicated, the general spirit of the convention, the wide international support expressed in the large number of ratifications, and state practice as translated in legislation based on the convention, may support the view that neutrality was not intended. States are free to ratify or not to ratify the convention. They may also ratify it with reservations, unless the reservations are considered incompatible with the object and purpose of the convention, as interpreted by two-thirds of the states parties. This was a controversial provision, incorporated at the last moment by the General Assembly.32 The special rapporteur on Article 4 pointed out that a reservation allowing the respective states the discretion to determine if and when it is necessary to enact legislation in accordance with the mandatory provision of Article 4 may be considered as incompatible with the object and purpose of the convention and therefore cannot be permitted under Article 20(2). This seems to be the approach followed by CERD.33 29 On the penalization of the denial of the facts of the Holocaust, see S. J. Roth, “AntiSemitism and International Law,” Israel Yearbook on Human Rights 13 (1983): 208, 223. See also the resolution adopted in 2005 by the General Assembly establishing January 27 as a yearly day to mark the Holocaust. 30 Ingles, Study, 18; Meron, Human Rights Law-Making, 33. 31 Statement of the U.S. Representative to the General Assembly, U.N. Doc. A/PV. 1406, at 53–55 (1965). 32 See Lerner, The U.N. Convention, 95. 33 Ingles, Study, 37.

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The need to achieve a compromise in order to make the convention acceptable to all states again led to vague language that left a majority of states or, in the last instance, the International Court, with the decision on the legality of a reservation. When a state ratifies the convention without expressing reservations to Article 4, the “with due regard” clause cannot be seen as relieving that state from the duty to implement Article 4 and the corresponding duty to adopt legislation to that effect. For many states the new clause facilitated the vote in favor of the convention. But it did not solve the difficult question of a clash between rights. To claim that it permits states to ratify the treaty without adopting domestic legislation aimed at implementing Article 4 would deprive the convention of one of its major aims. CERD stated: “It could not have been the intention of the drafters of the Convention to enable states parties to construe the phrase . . . as cancelling the obligations relating to the prohibition of the racist activities concerned. . . . ”34 The Human Rights Committee took a similar approach in its General Comment II on Article 20 of the International Covenant on Civil and Political Rights,35 applicable both to racial and religious hatred and considered by the committee as fully compatible with freedom of expression. The committee believes that states parties which have not yet done so should take the necessary measures and sanctions in case of violation. Contents of Article 4 The wording of the opening paragraph of Article 4 is rather unsatisfactory and must be read in conjunction with the definition of racial discrimination in Article 1 of the convention. The phrase “race or group of persons of one colour or ethnic origin” should be broadly interpreted. There is no definition in the convention of the terms race and ethnic, but it seems reasonable to assume that the intention of the drafters was to protect every group that has a defined collective identity.36 In their interpretation of the notion of racial discrimination, domestic tribunals in different countries have taken the view that what is important is the fact that the group sees itself as a distinctive collective entity and is so perceived by the surrounding population.37 The convention does not refer to religious groups, although frequently religion is combined

Statement of CERD at the World Conference to Combat Racism and Racial Discrimination. U.N. GAOR, U.N. Doc. A/38/40 (1983). 36 For a discussion on the broad scope of the convention, see Lerner, The U.N. Convention, 9. 37 For several judicial decisions in Great Britain, the United States, the Netherlands, and New Zealand dealing with group identity and stressing the relevance of self-perception and external perception in order to determine the existence of a distinct discriminated group, see Natan Lerner, Group Rights and Discrimination in International Law, second edition, 2003, 38, 39. 34 35

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with other group characteristics. Jews, Arabs, Sikhs, Kurds, and Armenians are examples of such complex identities. There is no doubt that the convention protects such groups. CERD gave some attention to the issue of religion, and members of the committee took different views on the question of whether attacks against religious groups were to be dealt with under the Convention on Racial Discrimination.38 The opening paragraph of Article 4 condemns “propaganda,” while operative paragraph (c) refers to “organized and all other propaganda activities.” It seems reasonable to conclude that the purpose was to cover intentional dissemination of racist ideas in an organized way and not to deal with casual, isolated expressions. In some cases, however, the distinction is difficult. One person’s persistent campaign of racist manifestations addressed to the public should be considered “organized propaganda” despite the fact that no organization is involved. The various media employed—radio, television, press, and wide distribution by mail or Internet of inciting material—are a decisive consideration in determining organized propaganda. A treaty cannot be casuistic, and the differences in wording should not be construed in a way that clashes with the obvious intentions of the drafters. The opening paragraph contains a reference to “racial hatred.” However, as already indicated, it is difficult to define hatred, which is a feeling or sentiment that may not express itself in deeds. In the same paragraph states parties undertake to adopt measures designed “to eradicate all incitement to, or acts of, such discrimination.” The absence of a reference to incitement to racial hatred should be regarded only as a drafting deficiency, since in operative paragraph (a) states parties are asked to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred.” It is not only incitement to discrimination that must be eradicated but also incitement to hatred. States are called upon to adopt various kinds of measures, always with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5. The compromise-building formula, which helped to accelerate the preparation of the convention, as we have seen, does not solve the critical problem of clashes between rights. The spirit of the convention is not to permit freedom of speech or association to take precedence over the right to be free from discrimination or incitement. States parties will have to find ways to accommodate their domestic legislation to the undertakings contained in the convention. 38 Meron, Human Rights Law-Making, 35. Professor Michael Banton, a member of CERD, wrote that “the Convention’s potentiality for action against discrimination based upon color or descent, and for linking these with the more general principle of non-discrimination . . . or for reducing the racial discrimination that has other causes, has scarcely been recognized.” Michael Banton, “The International Defence of Racial Equality,” Ethnic and Racial Studies 13 (1990): 568, 582.

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Article 4(a), (b), and (c) lists, though not exhaustively, the duties imposed upon states. States shall declare the following to be offenses punishable by law: 1. All Dissemination of Ideas Based on Racial Superiority or Hatred The problems involved in the use of the term “ideas” have already been discussed. While Article 4 does not restrict scientific research, it aims to avoid racism hidden under the name of scientific research. Domestic criminal law will have to solve the problems involved in accordance with each country’s definition of what constitutes a criminal act. The UNESCO Declaration on Race and Racial Prejudice, in order to cope with this problem, calls upon specialists in natural and social sciences and cultural studies, as well as scientific organizations and associations, to ensure that “their research findings are not misinterpreted.”39 The convention does not define ideas based on hatred. The difficulties in arriving at such a definition may be even greater when dealing with feelings originated in religion. 2. Incitement to Racial Discrimination The word incitement created difficulties during the drafting of the convention. It must be interpreted in conjunction with the full text of Article 4 and in light of the difficulties that were supposedly resolved with the “with due regard . . . ” sentence. 3. Acts of Violence, or Incitement to Such Acts against Any Race or Group of Persons of Another Color or Ethnic Origin Acts of violence are always punishable, except when explicitly permitted by law. As to incitement, the remarks in item 2 are also applicable here, though it would have been preferable to use a more general term when referring to the victims of such acts. 4. Provision of Any Assistance to Racist Activities, Including the Financing Thereof In this connection the question was asked whether buying a propaganda booklet of a racist organization could be considered a crime. The British representative in the Third Committee stated that Great Britain could not agree to punish by law anyone who had only paid a subscription toward membership in a fascist organization.40 Once the law declares that a fascist organization, as defined by law, is illegal, membership in it becomes an offense. But still there may be borderline cases, where states implementing the convention

39 40

Human Rights, 141. Cf. U.N. Doc. A/C.3/SR.1315, at 2 (1965).

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and adopting legal measures to that effect will have to define the differences between legal and illicit acts. The word assistance, not defined in the convention, also requires clarification in domestic law. The purpose of paragraph (b) is to outlaw racist organizations. There is no definition of the term organization, although legal status, program, and size are relevant features. The main substantive problem is the possible clash between that purpose and freedom of association. At what stage of their existence should hate organizations be declared illegal and disbanded? Do they have to engage in actual activities in order to be declared illegal, or is it enough that their program or articles of association reflect their intention? What is the meaning of “promote and incite racial discrimination”? The travaux preparatoires are helpful in this respect. Racist organizations should not be allowed to become a danger to peace and should be declared illegal as soon as it becomes clear that they intend to engage in the promotion of and incitement to discrimination. It would appear that there is no need to wait for a “clear and present danger” to society. However, legal systems in which criminal intention alone is not sufficient to outlaw an organization before it translates that intention into criminal acts may face difficulties in implementing preventive steps against racist incitement or organization. An interesting case in this regard was decided in Israel in 1987. The High Court of Justice was asked to determine whether the Israel Broadcasting Authority was entitled to refuse to broadcast utterances containing undisputed racial incitement. The issue was freedom of speech rather than freedom of association, but the question of “clear and present danger” was raised. Justice Bach took the view that clear racial incitement was sufficient to justify restrictions, even when there was no “near certainty” of harm to the social order. He stated that there was no need in Israel, with the tragic and traumatic background of the Jewish people, to emphasize “the utterly destructive influence of incitement to racial hatred.”41 The reference to “organized and all other propaganda activities” was not casual. “All other propaganda activities are those carried on not by organized associations but by groups that do not possess the status of organizations, or by individuals.” The words “all other” should be clarified by domestic legislation. They indicate, however, a trend toward a broad interpretation.

41 H.C. (High Court) 399/85, 41 (3) Piskei Din ( Judgments of the Supreme Court of Israel), 255–80, at 259. For a summary of the case in English, see The Jerusalem Post (August 3, 1987). In 1998 the Israeli Supreme Court decided an interesting case related to offenses against religious feelings committed by a Jewish girl who disseminated leaflets with the figure of a pig and the legend “Mohammed.” The court upheld the conviction of the accused. See penal appeal 697/98. The well-known Skokie case in the United States, discussed below, may also be relevant in this connection.

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With regard to “promote and incite,” it should be noted that the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief refers to “promote or incite.”42 The difference between the verbs promote and incite is not clear. Neither is it clear if both activities are necessary to justify the prohibition. The explanation for the use of both terms was that promotion presented a “lower degree” of motivation and may be present even in the absence of an intention to incite. Incitement, on the other hand, is a conscious and motivated act. Incitement may cause hatred, and the fact of creating “an atmosphere of racial hatred” would inevitably lead indirectly to racial discrimination.43 The final part of Article 4 is unrelated to the area of criminal law. While states parties should certainly “not permit public authorities or public institutions, national or local, to promote or incite racial discrimination,” a better place for this provision might have been in Article 2, which deals with obligations of states parties. The prohibition should be interpreted as covering activities and statements of all organs of the state, including autonomous bodies and spokesmen of the state in international forums. Article 4 is undoubtedly one of the important articles of the Convention on Racial Discrimination, if not the most important. Even with the compromise of the “with due regard” clause, the article takes a stand on the conflict between rights, in favor of the prohibition of racial discrimination and incitement. It would appear that in case of a clash of rights, the orientation of Article 4 is that freedom of speech or association cannot be invoked to prevent a state party from taking legal measures, inclusive of a penal nature, against violations of the convention. Article 4 is not self-executing, and therefore actions of the state to implement its provisions are indispensable. A state that ratifies the convention but does not adopt legislation in the spirit of Article 4 is not fulfilling its obligations under the convention. This may dissuade states from ratifying the convention, but the text, despite the weaknesses in its drafting, does not leave any doubt in this respect. International practice, as expressed in the legislation adopted by many states parties, shows that Article 4 did not deter ratification. Article 4 is an ambitious provision. It is presently the most articulate provision in international law intended to fight not only racial discrimination but also related evils such as racial hatred, racist propaganda, and association with racist purposes. It is applicable to the interpretation of similar texts dealing with religion.

42 43

Article 9 (3) of the declaration, in Human Rights, 61. Cf. U.N. Doc. E/CN.4/Sub.2/SR.418 (1964).

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Its shortcomings are rather in the area of good legislative technique and drafting. The preparation of a draft model law covering its provisions may provide the clarifications required in the present text. The secretary-general of the United Nations has prepared such a draft on model legislation intended to ensure “adequate protection to the victims of racism and racial discrimination, through legislative guarantees, criminalization of racist acts, the development of recourse procedures and the establishment of independent national bodies to monitor implementation.”44 It may be difficult to achieve general agreement to such a model, and it remains to be seen to what extent national legislatures will adopt the model. But, as correctly asserted by members of CERD, the international convention, rather than imperfect national laws, should serve as the basis for the model legislation.45 In this respect Article 4 is crucial. It is also of evident relevance to the subject of discrimination and incitement on grounds of religion. Group Libel From time to time the question of group libel—or group defamation—and the measures to be taken to curb it is revived in certain countries. The controversy in regard to this legal dilemma began in the 1940s under the influence of the lessons of World War II. Since then, many states, including Western democracies, have enacted legislation outlawing group libel. As to international law, some instruments have incorporated provisions on the matter. Group libel involves general problems related to human rights law, such as the balance between freedoms, the admissibility of derogations and limitations of basic rights, and procedural difficulties concerning the victim, or victims, of this particular offense. Manifestations of religious intolerance, disregard for the collective aspirations of ethnic and religious groups, and the humiliation or persecution of entire communities are frequently interwoven with organized campaigns of defamation. Lawyers are divided on the question. Strict civil libertarians, particularly in the United States, are against any measures likely to restrict freedom of speech and related liberties, however serious the social dangers involved in the abuse of those freedoms may be. In their view, group libel is protected by the prohibition on restricting free speech. Others take a more flexible view: freedom of speech, as other liberties, can be subjected to limitations when it is likely to cause serious breaches of the peace or of public order. Other jurists claim that there

44 45

See U.N. Doc. A/46/18, at 107(1991). Ibid.

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should be no freedom of speech to defame, insult, hurt, or ridicule an entire group, and that, in such cases, the group is entitled to a legal remedy. For them, the content of the speech is sufficient to invoke the operation of the law.46 I have mentioned already the ruling of the Israeli High Court of Justice in the Israel Broadcasting Authority case, which was rather indecisive regarding the question of when group defamation can be restricted, although all the judges expressed revulsion regarding racism. Justice Barak considered that restriction of freedom of expression must be the last resort. Although Israeli law does not require a “clear and present danger” of damage, as is the rule in the United States, a theoretical possibility is not sufficient, and freedom of speech can be limited only where there is a “near certainty” of real harm to the social order. Justice Bach took a different position with regard to incitement to racial hatred: “No other form of expression can so effectively create violence, stir the lowest and most vile instincts in human beings, and lead to the degradation of sections of the population against whom the propaganda is directed.” He therefore considered that the Broadcasting Authority was entitled to refuse to broadcast utterances containing clear incitement, even when there was not a “near certainty” of harm to the social order. Moreover, Justice Bach indicated support for measures aimed at curbing group libel.47 The Meaning of Group Libel The term group libel needs clarification. The meaning of libel is well known: malicious defamation, slander, vilification of a person exposing him or her to hatred, contempt, or ridicule. Most modern legal systems curb individual libel. Group libel involves a more complicated situation. It is, of course, libel, but it is addressed not against a specified individual or several identified individuals but against a whole group. In cases of ordinary libel, everyone recognizes that the victim or target of the defamatory utterance, the individual or individuals affected, is entitled to protection by the law. When someone says, “The black men John Adams and Joseph Smith are rapists,” or “The Jews Haim Rabinovich and Salomon Cohen are traitors,” the named individuals have, subject to some conditions, the right to take legal action against the slanderers.

46 For this discussion, see, inter alia, Natan I.erner, “Group Libel Revisited,” Israel Yearbook on Human Rights 17 (1987): 184; Kenneth Lasson, “Racial Defamation as Free Speech: Abusing the First Amendment,” Columbia Human Rights Law Review 17 (1985): 11; Kathleen Mahoney, Hate Vilification Legislation: Where Is the Balance? (1994); Raphael Cohen Almagor, “Harm Principle, Offence Principle, and the Skokie Affair,” Political Studies 41 (1993): 453–470. New York Law Forum 14 (1968) also has several articles on the issue. 47 See citations in note 41 above.

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But what about the expressions “blacks are rapists” or “Jews are traitors”— when a whole racial, religious, or ethnic group rather than identified individuals is defamed, insulted, or hurt? Do John Adams and Joseph Smith, or Haim Rabinovich and Salomon Cohen, or other members of their respective groups, have the right and the possibility to invoke the legal process to prevent group libel, to punish the perpetrators, and to receive compensation for the harm they sustained? Can blacks as a group, or Catholics, Muslims, or Jews, as a group, or organizations representing them, take legal steps asking for redress? More difficult still, how and when may group defamation be prevented? Only when an interference with public order may follow, or when, despite the fact that no incidents may be expected, the expression is of such a nature that it profoundly hurts a specific sector of the public? Illustrations of this latter aspect include the famous Skokie case in the United States or attempted marches or demonstrations by racist gangs in Arab villages in the Galilee that caused considerable debate in Israel. The law of group libel varies from country to country, and occasionally from time to time. In some countries domestic legislation does not authorize civil actions for group libel unless the plaintiff can prove that he is personally included in the defamatory statement. In some countries prosecution in cases of group libel is only possible with the consent of the attorney general or a similar public authority.48 In others, group libel is actionable when defamation is on racial grounds but not when the slander is of a religious nature. In cases of group libel not only an individual but a community as a whole suffers. Such libelous expressions are essentially directed against the group more than against its individual members. In the same way that the intention of genocide is to destroy the group rather than a few or many of its individual members, so the intention of hate insults or defamation is to hurt the whole group rather than this or that individual member. When bigots say or write that “blacks are rapists,” or “Jews are exploiters and traitors,” or “Muslims are terrorists,” or “Burakumin are inferior,” or “Indians are drunkards,” they imply that all blacks, Jews, Muslims, Burakumin, or Indians possess the despicable characteristics attributed to them, that no distinction as to individuals is worth the effort, that the negative, dangerous quality is to be attributed automatically to the entire community. That entire group should therefore be suspected, feared, and treated in such a way as to make it impossible for its members to harm society.

48 This is the case in the United Kingdom. Cf. Anthony Dickey, “English Law and Race Defamation,” New York Law Forum 14 (1968). In Israel the law on racist incitement enacted on August 5, 1986, requires the written consent of the attorney general before criminal proceedings may be initiated.

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In the cases of both individual and group libel damage is done. It would appear that the social harm is much more serious in the case of group libel, when no individuals are named. Yet group libel is more difficult to combat through the courts than the simple case of libel against an individual. Having stressed the social dangers involved in group libel, one should not ignore the problems that make it difficult to combat it with the help of the law. Curbing Group Libel The general principles regarding derogations and limitations in the field of human rights and basic liberties—such as those emanating from Articles 29 and 30 of the Universal Declaration on Human Rights and Article 5 of the International Covenant on Civil and Political Rights—are, of course, applicable. Also relevant is the discussion on the legal meaning of a series of terms frequently employed in this context, such as freedom of speech, incitement, fighting words, public order, public health, public morality, provocation, clear and present danger, captive audience, criminal intention, breach of the peace, political comment, and many others. Because of the attempts to disguise group defamation as political comment or scientific argumentation, the precise use of such terms is sometimes of crucial importance. Legal semantics are relevant here. As Kenneth Lasson puts it: “To suggest that the law cannot distinguish between political comment and racial defamation is akin to equating Michelangelo’s nudes with those in a 42nd Street pornographic bookstore.”49 Because of all these difficulties, the effort to outlaw group libel was confronted by many objections, some strictly of a legal nature, others more practical. It has been argued that group libel legislation is of no use, and that Nazi or similar organizations will not be stopped by such laws; that instead it may provide bigots with a forum for the dissemination of their views; that oppressed groups may themselves become victims of such legislation. Those voicing such arguments come up with the already well-known formula: Education is the only effective way of dealing with bigotry and religion and race defamation, not legislation. The objections should not be ignored, but they are not convincing. The law, particularly criminal law, is the most effective means of education and enlightenment. The law sets standards of behavior to which human beings must conform. The purpose of law, particularly criminal law, is to prevent crime rather than to punish it. Declaring that specific acts are criminal and forbidden is undoubtedly an educational and preventive measure. Of course, preventive measures may not always be feasible or adequate. It is virtually

49

Lasson, “Racial Defamation as Free Speech,” 48.

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impossible, in a democratic society, to prevent someone having access to the communications media from engaging in defamatory statements. It is possible, and justifiable, to prevent individuals and organizations devoted to propagating group defamation from obtaining access to such media when they belong to the state or to other public organs. Democratic countries where freedom of speech is a respected value have outlawed bigoted organizations through domestic legislation and relevant international agreements. The Skokie case would become impossible if the organizations engaged in the planning and implementation of such and similar provocations were to be banned by law. Jews, frequent victims of group libel, have advocated such legal steps for years in many places, although some Jewish-American groups did not feel comfortable with them. When prevention is impossible or inadequate, the main problem is the question of limitations on free speech. Should society remain idle, hoping that reason will overcome bigotry, or should the law declare that some defamatory expressions are a punishable crime? The latter approach may be technically difficult, but, as we shall see, many legal systems have attempted it. Democratic societies anxious to safeguard freedom of expression and related liberties have found it necessary to limit their use in cases of conflict with basic social ideals and interests. When free speech corrupts, when it seriously offends religious beliefs, when it jeopardizes public order and national security, it is legitimate to limit it. When free speech is used to harm those whose good repute society is obligated to protect, it is legitimate to suppress it and provide redress for the victims. The Supreme Court of a country with a free-speech tradition, the United States, has declared that free speech must be accommodated to other equally basic needs of society. Libelous utterances “are of such slight social value . . . that any benefit that may be derived from them is clearly outweighted by the social interest in order and morality.”50 It is up to each system of criminal law to define when a criminal offense is being committed and when and how it should be punished. It is up to each general system of law to establish what redress should be available to the victims. Domestic legislation and international law contain provisions against group libel. Those provisions, particularly domestic legislation, differ from place to place. In general, European countries have promulgated more specific legislation banning group libel, undoubtedly as a consequence of the tragic lessons of recent history. It was already noted that there are different degrees of severity in the approach to group libel. Some countries require proof of interference with public order and peace; some establish the need to prove intention or motive in addition to the objective result; some authorize prosecution only

50

Beauharnais v. Illinois, 343 U.S. at 256–257.

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with the acquiescence of the state; and some go as far as to prohibit the activities of, membership in, and financing of hate organizations. As an example of domestic legislation, the Consultative Assembly of the Council of Europe drafted model legislation in 1966 making it an offense publicly to call for or incite to hatred, intolerance, discrimination, or violence against persons or groups of persons distinguished by color, race, ethnic or national origin, or religion, or insulting such groups by holding them in contempt or slandering them on account of their distinguishing particularities. The model law also calls for the prosecution and/or prohibition of organizations whose aims or activities fall within the above mentioned activities.51 A recommendation, contained in the same resolution, to prepare a European convention on a uniform law against incitement to hatred has not as yet been implemented. Some domestic provisions deserve special mention. In France, Act No. 72/ 546 of July 1,1972, defines racial defamation and insult. It excludes the need of deliberate intention and grants standing to organizations and individuals. So does a Belgian law of 1981 on the suppression of certain acts prompted by racism or xenophobia. The Scandinavian countries, Denmark, Iceland, Norway, and Sweden have legislation against any person who, by mockery, slander, insult, threat, or other means, attacks a group of persons on the ground of their nationality, color, race, or religion. The Dutch Penal Code penalizes defamatory or other expressions offensive to a group. The Czech Penal Code punishes vituperation against any nation, its language, or race, or a group of inhabitants for its confession or lack of religious conviction. Hungary outlaws abusive language or incitement to hatred with regard to national minorities. Polish legislation deals with those who publicly insult, deride, or humiliate a group of the population, or offend religious feelings. The former USSR and Romania took measures to combat incitement to national or religious enmity and discord, and propaganda to that effect. Australia, Guinea, India, and several Latin American countries have similar legislation. The Philippines and Spain incorporated Article 4 of the Convention on Racial Discrimination into their internal criminal legislation. Austria, the Federal Republic of Germany, Greece, and Italy prohibit the existence of racist organizations.52 The classic case in the United States—where some states have incorporated group libel statutes in their criminal codes—was Beauharnais v. Illinois. There the United States Supreme Court decided, by five to four, in favor of the constitutionality of a state law prohibiting any publication “which portrays

51 52

Eur. Consult. Ass. Deb. 17th Sess. 737–38 ( January 27, 1966). See Lerner, The U.N. Convention, 165–203.

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depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed, or religion which . . . exposes the citizens . . . to contempt, derision, obloquy or which is productive of breach of the peace or riots. . . . ” Protections of the First Amendment free-speech clause were invoked, but eight of the nine justices—the split was on marginal matters—considered that group libel laws are constitutional in the United States. The dangers involved were eloquently stated by Justice Douglas: “Hitler and his Nazis,” he said, “showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy.” Justice Frankfurter pointed out that “the lewd and obscene, the profane,” “libelous utterances,” and “the insulting or ‘fighting’ words” are not within the area of constitutionally protected speech.53 The question whether the Beauharnais doctrine is still valid remains open, and new proposed group libel legislation was resisted. In the famous but not well understood Skokie case,54 a Nazi group applied for authorization to demonstrate in a Chicago suburb heavily populated by Jews, many of them Holocaust survivors. The Village of Skokie tried to prevent the march, but the United States Supreme Court upheld the right of the Nazis—represented, to the chagrin of many, by the American Civil Liberties Union—to demonstrate. The case was not, however, a real test case on the merits of group libel. As Lasson points out, the Skokie citizens did not attack the demonstration on its merits but on context-related exceptions. “Had they properly framed the issue, that might have restrained the Nazis within constitutional bounds,” Lasson concludes.55 In Israel the prevailing trend does not support a liberal approach to group libel. According to Article 4 of the Defamation Law of 1965, defamation of any group shall be treated in like manner as the defamation of a body corporate, “provided that it shall not be a ground for a civil action or private complaint.”56 The law on racism requires the written consent of the attorney general in order to initiate criminal proceedings. The legal establishment took a restrictive line in this respect. As stated by Justice lzhak Zamir, while he was still in office as attorney general, prosecution would only be undertaken “in extreme cases, which create a clear and immediate danger for public peace.” Zamir admits the usefulness of private criminal actions in cases of libel but, of Beauharnais v. Illinois, 343 U.S. at 256. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). 55 Lasson, “Racial Defamation as Free Speech,” 18, 23, 30. For Lasson, racial defamation is subversive speech and cannot be protected by the First Amendment. He is inclined not to include defamation of religious groups within the prohibition, because of the risk of “excessive entanglement” with the free exercise of religion. Ibid., 35 n.174. This argument does not seem to be justified. There is no basic reason to deny a religious group the same protection to which an ethnic group is entitled. 56 Laws of the State of Israel, 19:254. 53 54

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course, the problem of standing rights comes up.57 Proposals to include in the anti-racism law provisions permitting voluntary organizations to initiate criminal proceedings were not successful and were attacked by civil libertarians. Modern international law has incorporated the tragic lessons of World War II into several instruments. Bigotry outbursts that took place in several countries in the late 1950s prompted international organizations to adopt provisions intended to defend ethnic, religious, and similar groups against hatred and hostility. The 1966 International Covenant on Civil and Political Rights contains several measures related to the subject. Article 17 prohibits attacks on the honor and reputation of a person. Article 19 permits restrictions on freedom of expression to protect the right and reputation of others. Article 20 prohibits advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence. Group libel may be seen as included in the prohibition of advocacy of hatred. The International Convention on the Elimination of All Forms of Racial Discrimination deals not only with discrimination but also with propaganda and organizations based on ideas or theories of superiority of one race or group or who attempt to justify or promote racial hatred. The convention urges signatory states to declare punishable by law all dissemination of ideas based on racial superiority or hatred, and to outlaw organizations and propaganda that promote and incite to racial discrimination. The 1978 UNESCO Declaration on Race and Racial Prejudice, aimed at protecting group identity, condemns doctrines of racial inequality and particularly urges the mass media and all organized groups within national communities—with due regard to the principle of freedom of expression as embodied in the Universal Declaration on Human Rights—to refrain “from presenting a stereotyped, partial, unilateral or tendentious picture of individuals and of various human groups.”58 At the regional level, the American Convention on Human Rights contains provisions on everyone’s right to have “his honor respected and his dignity recognized,” on liability to ensure the “reputation of others,” and on “advocacy of national, racial, or religious hatred that constitute incitement to lawless violence or any other similar illegal action against any person or group of persons on any grounds including those of race, colour, religion, language, or national origin,” considering it an offense punishable by law.59 The European Convention on Human Rights of 1950 contains provisions restricting freedom of expression, assembly, and association when necessary 57 See Izhak Zamir, “Herut Habitui K’neged Lashon Hara V’alimut Milulit” (Freedom of Expression vs. Defamation and Verbal Violence), in Sefer Sussman 149 (1984). 58 See Lerner, The U.N. Convention, 204–209. 59 See, particularly, Articles 11.1 and 13.5.

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in a democratic society in the interests, inter alia, of the prevention of disorder or crime and protection of the reputation or rights of others.60 The promotion of group hatred and hostility, the humiliation and defamation of groups, the discrimination or persecution that necessarily follows, are the roots of violence, disorder, and resentment that have disrupted coexistence and harmony in many places in the world. Society has not only the right but also the duty to permit ethnic, religious, linguistic, and cultural groups to defend themselves against abuses and insult. Such defense should include access to legal remedies on behalf of the affected group as such, in addition to individual steps. Legislation against group libel should include the possibility of redress once the offense is committed, as well as the possibility of preventing its commission by means of prohibiting and disbanding organizations established for criminal purposes. That this is not inconsistent with basic liberties is sustained by the fact that international human rights law contains provisions to such an effect and that the domestic law of freedom-loving nations has incorporated similar norms. International Criminal Law The Genocide Convention Postwar international law had to give its answer to the lessons of the most costly conflict of history in terms of human lives. Those responsible for the construction of an international order aimed at the preservation of peace and prevention of horrendous crimes, such as those committed before and during World War II, were conscious of the need to avoid the recurrence of criminal policies directed against some specific religious or other groups. For this reason, one of the first human rights treaties adopted in the U.N. period was the International Convention on the Prevention and Punishment of the Crime of Genocide (1948).61 Approved by the General Assembly, by a vote of 55 to 0, on December 9, 1948—one day before the adoption of the Universal Declaration on Human Rights—it entered into force in 1951 and has been widely ratified.62 As stated by the International Court of Justice, “the Convention was manifestly adopted for a purely humanitarian and civilizing

60

See, particularly, Articles 10.2 and 11.2. For the text, see Human Rights, 669. 62 In some cases ratification was discussed during several decades. That was the situation in the United States, where ratification was only made possible in October 1988, almost forty years after the convention was transmitted by President Truman to the Senate, and following a series of hearings at which strong opposition to ratification was voiced. 61

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purpose.” Its origins show that it was the intention of the U.N. “to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human rights groups, a denial which shocks the conscience of mankind and results in great losses to humanity. . . . ”63 Today, more than five decades after the convention entered into force, it seems apparent that its main significance lies in the assertion by the international community of the universal duty to protect the existence of ethnic and religious groups by declaring genocide to be an international crime, whether committed in time of peace or in time of war. The prohibition of genocide is seen today as part of jus cogens.64 The convention does not contain measures of implementation. It has exercised little influence in preventing clear-cut genocidal situations in various parts of the world during the past few decades. The convention needs updating and, as we shall see, some steps to that effect have been taken. But on the whole it is one of the basic instruments for the protection of ethnic and religious groups, dealing, as it does, with the basic right of groups to maintain their existence. The literature on genocide (since 1944, when Raphael Lemkin coined this new term for a very old crime65) has become very profuse.66 Nehemiah Robinson and others have analyzed the convention in the light of the preparatory work and have discussed the special problems involved in its application. Two special rapporteurs appointed by the Subcommission on Prevention of Discrimination and Protection of Minorities, Nicodeme Ruhashyankiko and Ben Whitaker, have prepared detailed studies on the convention.67 Interested nongovernmental organizations have submitted statements dealing with some of the problems related to the convention.68 We shall therefore refer briefly to the main provisions of the convention that are especially relevant to our subject and try to identify the questions presently under discussion.

63

Reservations to the Convention on Genocide case, ICJ Reports (1 95 1), 15–69, at 23. Cf. Barcelona Traction, Light and Power Co. case, ICJ Reports (1970), paras. 33–34. See also Warwick McKean, Equality and Discrimination under International Law (1983), 277ff. 65 Raphael Lemkin, Axis Rule in Occupied Europe (1944); idem, “Genocide: A New International Crime,” Revue Internationale de Droit Penal (1946): 360; idem, “Genocide as a Crime in International Law,” American Journal of International Law 41 (1947): 145. The term genocide appears in the indictment of the German War criminals at Nuremberg in 1945. For the Nuremberg Judgment, see American Journal of International Law 41 (1947): 172. 66 For an authoritative commentary, see Nehemiah Robinson, The Genocide Convention (1960), incorporating texts of drafts and relevant resolutions as well as reservations to the convention. Sec also, e.g., Leo Kuper, Genocide: Its Political Use in the Twentieth Century (1981); idem, The Prevention of Genocide (1985); Irving Horowitz, Taking Lives: Genocide and State Power (1980). 67 E/CN.4/Sub.2/416 (4 July 1978), and E/CN.4/Sub.2/1985/6 and Corr. 1 (2 July and 29 August 1985), respectively. 68 See, inter alia, the statement by the representative of the World Jewish Congress, Daniel Lack, E/CN.4/Sub.2/1984/SR.4. 64

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The convention consists of a preamble and nineteen articles. The preamble refers to General Assembly Resolution 96 (I) of December 11,1946, which is seen as broader than the scope of the convention.69 Article I confirms that genocide, whether committed in time of peace or in time of war, is a crime under international law that states parties undertake to prevent and to punish.70 Article II, which is of crucial importance for our purpose, should be interpreted restrictively. The article lists the acts to be defined as genocide, when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The five acts constituting genocide are: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. The influence of the tragic events of World War II and of the Nazi extermination policy against Jews, Gypsies, and others on the convention is indisputable. What typifies the crime as genocide is the intent to destroy the group. Since a group consists of individuals, its destruction can only be achieved by steps taken against individuals. But the object of the crime of genocide is the group; not every group, but only national, ethnic, racial, or religious groups are protected. Proposals also to include “political” groups were finally disregarded in the Sixth Committee on the grounds that such groups were not permanent and their inclusion in the convention might prevent states from ratifying the convention.71 Economic groups were also excluded. The crime of genocide exists when there is an intent to destroy the group “as such.” As shown by the history of the convention, the words “as such,” introduced by a Venezuelan amendment, aimed at avoiding the possibility of the culprits claiming that the crime was not committed because of hatred toward the group itself but for other reasons, such as destruction during war, 69 Cf. Robinson, The Genocide Convention, 54. The resolution also protected “political groups” and dealt with cultural genocide. 70 Robinson, on the basis of the preparatory work, points out that the convention did not adopt the principle of universal repression (ibid., 32). This has to be seen in the light of the evolving approach of international law to the question of universal jurisdiction. 71 Kuper, Genocide, 23ff., takes the view that the convention was the proper instrument for the protection of political groups as well. This view is shared by Whitaker, who also recommends that the definition should be extended to “include a sexual group such as women, men, or homosexuals.” See the Whitaker study cited in note 67, 16–18. Ruhashyankiko takes the opposite stand in his study (ibid., 23). The more restrictive approach seems to be the correct one.

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robbery, profiteering, or the like. Controversy on those words broke out during the discussion of the text as well as after the adoption of the convention. In some cases where governments were accused of genocidal acts, the absence of intent was invoked to deny the existence of genocide.72 The intention must not necessarily imply the destruction of the entire group. The words “in part” were introduced to eliminate any doubt: The intent to destroy a multitude of persons of the same group because of their belonging to this group, must be classified as genocide even if these persons constitute only part of a group either within a country or within a region or within a single community, provided the number is substantial; the Convention is intended to deal with action against large numbers, not individuals even if they happen to possess the same group characteristics. It will be up to the courts to decide in each case whether the number was sufficiently large.73 As mentioned, the list of acts involving genocide is restricted. But many problems arise in the interpretation of each one of those acts. The final text of the convention does not include any reference to “cultural genocide”—also called “ethnocide”—as originally proposed in early drafts. During the preparation of the convention the decision not to have a reference to cultural genocide—mentioned in General Assembly Resolution 96 (I)—was, and still is, controversial. Those favoring the exclusion of cultural genocide pointed out the lack of precision of that term and the obvious and great differences between massive extermination and the deprivation of cultural rights. It is claimed, however, that in the light of contemporary experience, the convention should be amended to include a reference to cultural genocide, so as to extend the scope of the definition of genocide beyond the concept of physical destruction of persons.74 In addition to genocide, Article III of the convention declares punishable other acts when related to genocide, such as conspiracy, incitement, attempt, and complicity. The final text did not incorporate, as proposed, the outlawing of public propaganda to provoke genocide or proposals providing for the disbanding of organizations whose aim is the commission of genocide. Recent developments, such as the attempts to deny the magnitude of the genocide during World War II or to defend those who committed it, raise the question Cf. Kuper, Genocide, 33–35; also Robinson, The Genocide Convention, 60–61. Robinson, The Genocide Convention, 63. According to Kuper, genocide is a crime against a collectivity, by massive slaughter, and carried out with explicit intent (Kuper, Genocide, 86). 74 The document cited in note 68, above, states: “Contemporary examples abound on the denial of cultural facilities, the violation of cultural rights, as well as damage to and destruction of cultural property, which could lead to the annihilation of national, ethnic or religious groups.” By contrast, McKean maintains that the decision to delete the reference to cultural genocide was a correct one (McKean, Equality and Discrimination, 110). There were also proposals to include ecocide—the destruction of the environment—in the notion of genocide. 72 73

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if, in any revision of the convention, special attention should not be paid to these aspects of the problem. Article IV deals with the punishment of persons committing genocide, whether they are “constitutionally responsible rulers, public officials or private individuals.” The final text did not include proposals for making the plea of obedience to superior orders inadmissible. Opinions have been voiced in favor of including such a provision in case the convention is revised. It is beyond the scope of these pages to deal with general questions of criminal responsibility, superior orders, state responsibility, and other related issues. Under Article V, states parties undertake to enact legislation making effective the provisions of the convention, particularly through the imposition of effective penalties on persons guilty of genocide or other prohibited acts.75 According to Article VI, such persons shall be tried by a competent tribunal of the state in the territory in which the act was committed, “or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction.” Article VI caused much difficulty during the preparation of the convention and has been criticized as being inadequate. The matters of universal jurisdiction and the establishment of an international penal court are involved here. Article VII provides that genocide and related crimes shall not be considered political crimes for the purpose of extradition. This article was also subjected to criticism. A provision based on the principle aut dedere aut punire (“to extradite or to punish”) would be pertinent here. Such principle was included in the more recent Convention on Torture.76 Article VIII—considered by some to be superfluous and of no practical value—permits states parties to call upon the competent organs of the U.N. to take action for “the prevention and suppression” of acts of genocide. Still, this is the only article relating to the prevention of genocide. Article IX deals with the role of the International Court of Justice, establishing its compulsory jurisdiction in all disputes relating to the convention. It raised controversy, and several states submitted reservations to it. The following articles include the usual final clauses. The convention does not contain provisions on reservations.77 At the request of the General Assembly, the International Court of Justice gave an

75 Such legislation was adopted by some countries, such as Denmark, the Federal Republic of Germany, and Israel. Israel enacted a special law, No. 5710/50, on the prevention and punishment of the crime of genocide. For the text in English, see Laws of the State of Israel (LSI) (5710–1949/50), 4:101. Section Ib of the law reproduces the language of Article II of the convention. See Eichmann case, H.C. 336/61, 16P.D. 2033. 76 Articles 7 and 8 of the Convention on Torture. For the text, see Human Rights, 293. 77 ICJ Reports (1951), 20.

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advisory opinion on reservations by states parties ratifying the convention. According to the court, a state that has made a reservation can be regarded as being a party to the convention if the reservation “is compatible with the object and purpose of the Convention.” If a state party objects to a reservation it can in fact consider that the reserving state is not a party to the treaty. Despite the shortcomings of the convention regarding implementation, its significance in the aftermath of World War II and the Nuremberg judgment can certainly not be overstated. Nor can its influence be overstated on the preparation of the Code of Offenses against the Peace and Security of Mankind and on the discussions concerning the establishment of an international criminal jurisdiction.78 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity79 specifically includes the crime of genocide, thereby stressing its role as a crucial step in outlawing attacks on the existence of national, ethnic, or religious groups either in wartime or in peacetime. Suggestions on the possibility of establishing an international criminal jurisdiction, or an international body entrusted with carrying out investigations and taking steps to prevent genocide, as well as on the preparation of an additional protocol to the convention on universal jurisdiction in cases of genocide have not been successful.80 Five decades after the adoption of the Convention on Genocide the subject, unfortunately, continues to require international consideration. Millions of persons have been exterminated since World War II, with indisputable genocidal intentions according to the definition of the convention. The right to the life of the group is an essential condition for the enjoyment of all other rights, and its preservation should be kept permanently on the international agenda. “Ethnic Cleansing” The shocking term ethnic cleansing is used in connection with various and severe breaches of international and human rights law—breaches that have resulted in hundreds of thousands of victims and millions of refugees. The religious affiliation of the victims was in many cases the motivation behind the crimes. 78 See the 1996 Draft Code against the Peace and Security of Mankind, Article 18 e) and f ). For the text, see doc. A/CN.4/L.532 (1996). 79 For the text, see Human Rights, 147. See Natan Lerner, “The Convention on the NonApplicability of Statutory Limitations to War Crimes,” Israel Law Review 4(1969): 512. In 1979 the Federal Republic of Germany abolished the statutory limitation that would have prevented the punishment of genocide as of December 31, 1979. 80 See the Whitaker study, cited in note 67, 41, on steps suggested to fight genocide. See recommendations concerning the prevention of genocide in the Ruhashyankiko study, cited in note 67, 172ff. and 184ff. See also U.N. General Assembly Resolution 3074 (XXVIII), of December 3, 1973, on international cooperation in the detection, arrest, extradition, and punishment of persons guilty of war crimes and crimes against humanity.

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Ethnic cleansing may refer to one or more of four specific crimes: (1) forms of genocide; (2) war crimes; (3) crimes against humanity; and (4) hate crimes. It refers also to the motivation that induces perpetrators to commit any of the offenses pertaining to those areas of international criminal law. In the case of genocide, the intent is the physical annihilation of a certain group as such. In the case of ethnic cleansing, the intent is to rid a given territory of populations that do not belong to a particular ethnic, religious, or linguistic group. Ethnic cleansing has been used mainly to describe the horrendous events in former Yugoslavia. A large body of documents, literature, and decisions, including those of the International Court of Justice, already exists dealing with the events in this context.81 However, the term has also been applied in other instances. In Sukhumi, Georgia, former Soviet Union, Abkhazian insurgents have been accused of having carried out mass ethnic cleansing, and 200,000 Georgians are thought to have been uprooted.82 The same terminology— vycisteni—was used with regard to the situation of the Gypsies in the Czech Republic.83 The press has attributed ethnic and racist motivations to situations affecting Indian populations in some parts of Latin America, such as the massacre of the Yanomami tribe in the state of Roraima, Brazil, described by the federal attorney general as “genocide.”84 Hundreds of thousands were killed or fled from Rwanda-Burundi as a consequence of ethnic confrontations between the Tutsi and the Hutu. In response, on November 8,1994, the Security Council created the International Criminal Tribunal for Rwanda by Resolution 955. The issue is wider than purely ethnic in a strict sense, as was pointed out in a comment by Angelo Vidal d’Almeida Ribeiro, a former special rapporteur

81 The U.N. Security Council and the General Assembly, as well as other U.N. organs and treaty bodies, adopted numerous resolutions on “ethnic cleansing.” The International Court of Justice has dealt with the subject. For scholarly comments, see, inter alia, Theodore Meron, “The Case for War Crimes Trials in Yugoslavia,” Foreign Affairs 72 (1993): 122; idem, “Rape as a Crime under International Law,” American Journal of International Law 87 (1993): 424; H. McCoubrey, “The Armed Conflict in Bosnia and Proposed War Crimes Trials,” International Relations 11 (1993): 411–32; P. Akhavan, “Punishing War Crimes in the Former Yugoslavia: A Critical Juncture for the New World Order,” Human Rights 15 (1993): 262; James C. O’Brien, “The International Tribunal for Violation of International Humanitarian Law in the Former Yugoslavia.” American Journal of International Law 87 (1993): 639. 82 Time (October 25, 1993): 42. 83 See P. Mass, “In Czech Republic, a Surge of Racism against Gypsies,” International Herald Tribune (August 14–15, 1993): 2. 84 See with respect to those situations, M. S. Serrill, “Rain-Forest Genocide,” Time (September 6,1993): 42; A. Purvis, “A Demon Is Unleashed,” Time (November 15,1993): 50–51. Professor Shabtai Rosenne called my attention to the fact that, according to information from Yugoslavia, the term ethnic cleansing was first used in the U.S. media by New York Newsday journalist Roy Gutman, solely in connection with acts of the Bosnian Serbs, although such acts were committed by all sides in the civil war in Bosnia (letter to the author dated January 30,1994).

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of the Commission on Human Rights on the implementation of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In his seventh report (1993)—after stating that the conflict in the former Yugoslavia is not a religious one but opposes different national and ethnic groups—the special rapporteur referred to the serious damage suffered by religious and cultural monuments and sites of Muslims, Orthodox Christians, and Catholics alike. The special rapporteur wrote: “Such wanton destruction appears to be part of the policy of certain groups aimed at eradicating the religious and cultural base of ethnic communities living in a given area in order to encourage their departure and prevent their eventual return.”85 Ethnic and religious hatred may be intermingled in this case, as in many others, and it would be unjustified to disregard religious animosity or hatred as an important ingredient in the conflict usually described as ethnic. The relationship between religious identity and the horrible notion of “cleansing” was also raised in the same area years ago. In 1942 a Chetnik military commander, attending a Chetnik assembly in Tebinje, stated that “the Serbian lands must be cleansed from Catholics and Muslims. They will be populated by Serbs only.” The same phraseology goes back to a 1941 proclamation by General Draza Mihajlovic, the leader of the Royal Chetniks, who included among their war aims the “creation of a Great Yugoslavia with the Greater Serbia which ought to be ethnically pure” as well as “cleansing of the state territory of all national minorities and non-national elements.”86 The expression ethnic cleansing entered U.N. terminology when the Commission on Human Rights, in its special session on the situation in former Yugoslavia (August 13–15, 1992), and the Subcommission on Prevention of Discrimination and Protection of Minorities, at its forty-fourth session, condemned “ethnic cleansing” policies.87 The Security Council issued a similar condemnation in Resolution 771 (1992).88 The General Assembly did so on several occasions, such as in Resolution 46/242 of August 25, 1992; Resolution 47/80 of December 16, 1992; and Resolution 47/121 of December 18,

85 U.N. Doc. E/CN.4/1993/62, at 119. Kris Janowski, Sarajevo spokesman for the U.N. high commissioner for refugees, accused Serbian gunmen of “erasing all traces of a Muslim religious and cultural presence.” See New York Times ( January 30,1994). 86 See International Court of Justice, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), request for the Indication of Provisional Measures (March 20, 1993), 14. 87 See U.N. Doc. E./1992/22, E/CN.4/1992/84/Add.l(1992), and 1992/S-l/l Annex (1992), respectively. For a similar resolution of the second special session of the Commission on Human Rights, see E/CN.4/1992/S-2/6 (1992). See also the “Statement of Principles” approved by the conference on Yugoslavia that met in London in August 1992. 88 For the text, see 31 I.L.M. 1470 (1992).

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1992.89 The words ethnic cleansing appear in many later official documents, sometimes with explanatory remarks and sometimes without any details. Following Security Council Resolution 780, adopted on October 6,1992, a commission of experts to deal with the issue of “ethnic cleansing” was established.90 The aims of the commission were to investigate ethnic cleansing, to study all available reports on ethnic cleansing, and to determine the most effective way to approach the problem.91 The commission elaborated a definition of the expression ethnic cleansing—which it described as relatively new— strictly in the context of the conflicts in the former Yugoslavia. According to that definition, ethnic cleansing means “rendering an area ethnically homogeneous by using force or intimidation to remove persons or given groups from the area” (paragraph 55 of the interim report). Based on the many reports describing the policy and practices conducted in the former Yugoslavia, the commission, notwithstanding its own definition, enumerated a series of acts falling under the heading of “ethnic cleansing.” These are, per paragraph 56, murder; torture; arbitrary arrest and detention; extrajudicial executions, rape, and sexual assault; confinement of civilian population in ghetto areas; forcible removal, displacement, and deportation of civilian population; deliberate military attacks or threats of attacks on civilians and civilian areas; and wanton destruction of property. The commission stressed in its interim report that the above-mentioned practices constitute crimes against humanity and can be assimilated to specific war crimes, and in some cases they could also “fall within the meaning of the Genocide Convention.” Despite the reference to “relevant human rights,” the commission of experts spoke of ethnic cleansing practices as crimes against humanity and as war crimes. It also considered them exclusively in the context of the conflicts in the former Yugoslavia. Thus, the explanation by the commission of the meaning of ethnic cleansing seems to be at the same time too broad and too limited. It includes several major offenses already defined as such by international law and sanctioned by the respective international instruments. From this angle, ethnic cleansing would be the purpose, the motivation behind such crimes. On the other hand, by limiting the term to the conflict in former Yugoslavia, the commission avoided a more theoretical and universal approach. In addition, by allowing alternative interpretations the commission may have opened the way to view ethnic cleansing as an aggravating circumstance justifying a more severe treatment of the offense.

89 90 91

See Press Release G.A./8470 (February 1, 1993), at 276. For the text, see 31 I.L.M. 1476 (1992). Annex 1 to the U.N. Secretary-General Doc. S/25274 (1993).

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The list of acts considered by the commission of experts as leading to ethnic cleansing could be enlarged. Professor Meron, for instance, explicitly mentions acts of harassment, discrimination, beatings, intimidation, siege, and cutting off supplies, which are not listed by the commission.92 Were such a broad view taken, almost every act of coercion or violence that violates humanitarian law would involve ethnic cleansing, if committed with specific intent. Some authors, however, take a restrictive view. McCoubrey describes the “outrage of ethnic cleansing” as meaning “forced displacement of nonSerb people from Bosnian-Serb occupied territory.” However, he also states that it may be equated with genocide.93 Eli Lauterpacht—who was a judge ad hoc in the case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Requests for Provisional Measures) that came up twice before the International Court of Justice, both times in connection with the situation in Yugoslavia— referred to “the forced migration of civilians, more commonly known as ‘ethnic cleansing,’ ” committed as “part of a deliberate campaign by the Serbs to eliminate Muslim control of, and presence in, substantial parts of Bosnia Herzegovina.”94 Lauterpacht also considered the Serbian acts as acts of genocide that fall within several of the categories under Article 2 of the Convention on Genocide, being “clearly directed against an ethnical or religious group as such,” and being “intended to destroy that group, if not in whole, certainly in part.”95 The General Assembly in Resolution 47/121 states that ethnic cleansing is “a form of genocide” but also takes note of the statement of the special rapporteur of the Commission on Human Rights that “ethnic cleansing did not appear to be the consequence of the war, but rather its goal.”96 The special rapporteur himself, Polish statesman Tadeusz Mazowiecki, appointed in February 1993, traces “the first wave of ethnic cleansing in Eastern Bosnia and Herzegovina” by the Serb forces to April/May 1992. Yet the special rapporteur does not attempt to define the term. However, in his second periodic report he describes it as “the forced displacement and detention of civilians, arbitrary executions, attacks on towns as well as the destruction of villages and religious sites, as part of a deliberate and systematic policy. . . . ”97 An international tribunal was established under Security Council Resolution 808 of February 22,1993, “for the prosecution of persons responsible for serious

92

Meron, “The Case for War Crimes Trials,” 132. McCoubrey, “The Armed Conflict,” 424. 94 Sec Order on Application, April 8, 1993, 87 AJIL. 505–521 (1993); Order, September 13, 1993 (mimeographed text). 95 Ibid., 22–23. 96 Adopted on December 18, 1992. 97 S/25792 (1993) Annex and E/CN.4/1994/4, May 19, 1993. 93

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violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.” Among them, “mass killings and the continuance of the practice of ‘ethnic cleansing’ ” are explicitly mentioned.98 The tribunal was established by the Security Council by means of a Chapter VII decision in light of the existence of a threat to peace, for reasons of expedience, and in order to create an effective and binding obligation to take whatever action is required. The tribunal has to apply existing international humanitarian law in accordance with the principle nullum crime sine lege (no crime without a law). Such law does not refer explicitly to ethnic cleansing, although most of the violations to be dealt with obviously are covered by it. In his report, the U.N. secretary-general specifically refers to ethnic cleansing as a form of crime against humanity.99 So does Security Council Resolution 827 (1993), establishing the tribunal, referring to the “continuance of the practice of ‘ethnic cleansing,’ including for the acquisition and the holding of territory.”100 The tribunal, the statute of which was adopted by the Security Council on May 29, 1993, is an ad hoc tribunal established to prosecute crimes in the former Yugoslavia. It is not a permanent institution, and as such it has no power to adjudicate crimes committed outside the indicated context. It is the first international criminal court established since the Nuremberg and Tokyo trials. While the normal process for the creation of such a tribunal should have been an international treaty, it became clear that this would be impossible under the circumstances. The Security Council acted thus, moved by considerations of urgency and expediency, as in the case of Rwanda in November 1994. The tribunal started its work on November 17, 1993, after overcoming great practical difficulties. This is not the place to deal with the prospects of the tribunal becoming an effective instrument of international criminal law. It was a step forward, until a permanent international criminal court of a universal character was established. The creation of such a permanent international criminal court was the purpose of the international conference that met in Rome in the summer of 1998 and prepared a treaty to that effect, adopted by a vote of 120 in favor, 7 against, and 21 abstentions. The crime of genocide, “persecution against any identifiable group or collectivity” on religious and other grounds and “by reason of the identity of the group or collectivity,” as crimes against humanity, and “attacks against buildings dedicated

98 For the U.N. Secretary-General’s Report on the Tribunal (May 3, 1993), its Annex, with the Statute of the International Tribunal, and Security Council Resolution 827 (1993), adopted on May 25, 1993, approving the Report and deciding to establish the Tribunal, see 32 I.L.M. 1159–1205 (1993). 99 Ibid., 1173. 100 Ibid., 1203–1205.

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to religion,” as war crimes, are listed among the crimes within the jurisdiction of the court. The Meaning of “Ethnic Cleansing” In the case of genocide the act must be directed toward the destruction of a group as such. A similar approach may be applied to the issue of ethnic cleansing. The acts considered illegal must be directed toward the elimination from a given territory of people who do not belong to a particular ethnic or religious or linguistic group. Such acts are in any case violations of international law; they shall be described as “ethnic cleansing” when, irrespective of result, they lead toward such a “cleansing,” or deportation, or forced homogeneity of the population of a given area. “Ethnic cleansing” would not be considered a new or a different crime. It would be the intention, the motivation, or the objective to induce the commitment of some offenses. It could also be seen as an aggravating circumstance, justifying harsher penalties in some cases as provided in some legislation with regard to so-called hate crimes. In Resolution 47/80 of December 16,1992,101 the U.N. General Assembly relates the notion of “ethnic cleansing” to that of racial hatred—both offenses “totally incompatible with universally recognized human rights and fundamental freedoms.” Humanitarian law and human rights law are relevant to this “abhorrent practice,” which violates the prohibitions of both protective systems. It seems reasonable to interpret the words “racial hatred” broadly, as meaning group hatred in general. The resolution refers to “grounds of race, color, religion or ethnic origin” and notes the importance of respecting the rights of persons belonging to national, ethnic, religious, and linguistic minorities. The victim or target of hatred may belong to a group identified by race, color, religion, or other natural unifying factor. What is significant is that the victim is hated because of his or her membership in a specific group, whatever its nature, and therefore the group becomes the target of the offense. What is important is that the individuals or the group regard themselves, and are regarded by others, as having a particular historical identity in terms of ethnicity, religion, or culture. The title of General Assembly Resolution 47/80 is helpful, since it stresses the relationship between the result desired by the offenders—“ethnic cleansing”—and the criminal motive of “racist hatred” in a broad sense that has led to the commission of the criminal act. “Ethnic cleansing” is, thus, an area of convergence of violations of both humanitarian law and human rights law in the area of discrimination and incitement to group hatred.

101

Adopted without a vote. See Press Release GA/8470, February 1, 1993, at 276.

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In Resolution 47/80 the General Assembly recalls and reaffirms previous instruments on racism and discrimination on grounds of race, color, religion, or ethnic origin, and points out their negative impact on peace and security. The resolution explicitly reiterates former Resolution 46/242, of August 25, 1992, which also regards “ethnic cleansing” as a grave violation of international humanitarian law and declares “ethnic cleansing” and racial hatred as practices “totally incompatible” with human rights, the perpetrators of which are individually responsible and should be brought to justice. The Security Council took a different approach on the several occasions in which it dealt with the issue. In Resolution 808 (1993), confirming previous Resolution 713 (1991), and subsequent relevant resolutions, particularly Resolutions 764,771, and 780, all in 1992,102 the Security Council does not refer to racial hatred or discrimination. The council expresses its grave alarm at the widespread violations of international humanitarian law, mass killings, and the practice of “ethnic cleansing.” Again, in Resolution 836 of June 14,1993, the council declares “unlawful and totally unacceptable . . . any taking of territory by force or any practice of ‘ethnic cleansing.’ ” The differences between the resolutions of the General Assembly and the Security Council can, of course, be explained by their respective tasks, but the lack of clarity in the definition of the condemned practice may also have played a role. While the Security Council emphasizes the security aspect and the violations of war and humanitarian law, the General Assembly, in Resolution 47/ 80, pays attention to the combination of that practice and the notion of group hatred, stressing the discriminatory intention. The fact that General Assembly Resolution 47/80 originated in the Third Committee in relation to the racial issue is naturally relevant in this respect, since other General Assembly resolutions do not relate “ethnic cleansing” to racial hatred in particular. The differences in the wording used by both principal U.N. bodies do not involve contradictions, given their respective functions. They are not helpful, however, in achieving a generally accepted definition of the offense in question. The U.N. World Conference on Human Rights that took place in Vienna in 1993 dealt with the issue of “ethnic cleansing” in its Final Outcome.103 It did not define the meaning of the words but expressed its “dismay” at massive violations of human rights, especially in the form of “genocide, ‘ethnic cleansing’ and systematic rape of women in war situations creating mass exodus of refugees and displaced persons.” Strongly condemning such abhorrent practices, the conference reiterated “the call that perpetrators of such crimes be 102 For a listing of previous Security Council resolutions regarding the situation in former Yugoslavia, see 31 I.L.M. 1427 (1992). 103 U.N. Doc. A/CONF.157/DC/1, June 15, 1993.

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punished and such practices immediately stopped.” Part II of the document, under the heading “Equality, Dignity, and Tolerance,” Chapter A, “Racism, Racial Discrimination, Xenophobia, and Other Forms of Intolerance,” outlines the relationship with general human rights. The two principal human rights implementation bodies, the Human Rights Committee and the Committee on the Elimination of Racial Discrimination, dealt with “ethnic cleansing.” The Human Rights Committee, at its fortyeighth session, in July 1993, acting under Article 40, paragraph l(b) of the 1966 International Covenant on Civil and Political Rights, found that the new states within the boundaries of the former Yugoslavia took upon themselves the obligations of the former Yugoslavia under the covenant and requested the governments of Bosnia and Herzegovina, Croatia, and Serbia and Montenegro (Federal Republic of Yugoslavia) to submit reports on the events in former Yugoslavia. The committee discussed those reports, focusing on the issue of “ethnic cleansing” as part of the war objectives. Bosnia claimed that the Serbian policy “was based on the principle that persons of different religions and ethnic origins could not live side by side, and the concept of ethnic cleansing was a corollary of that concept.”104 The Human Rights Committee requested the governments involved to take measures to prevent and combat the policy of “ethnic cleansing” and to combat advocacy of national, racial, or religious hatred constituting incitement to discrimination, hostility, and violence, in relation to Article 20 of the covenant.105 The Committee on the Elimination of Racial Discrimination, for its part, related the issue of “ethnic cleansing” to the need to incorporate into the Penal Codes Article 4 of the Convention on Racial Discrimination, which prohibits incitement. It mentioned separately the “massive, gross and systematic human rights violations occurring in the territory of Bosnia Herzegovina,” and the practices of “ethnic cleansing,” “including forced population transfers, torture, rape, summary executions, the blockading of international humanitarian aid and the commission of atrocities for the purpose of instilling terror among the civilian population.”106 General Assembly Resolution 47/80, already analyzed, links the issue of “ethnic cleansing,” a “grave and serious violation of international humanitarian law,” with the issues of hatred and discrimination. Both are seen as “totally incompatible with universally recognized human rights and freedoms,” and states are called upon “to cooperate in eliminating all forms of ‘ethnic cleansing’ and racial hatred.”

104 105 106

See A/48 U.N. GAOR Supp. (No. 40), U.N. Doc. A/48/40 (Part I) (1993). Ibid., 69. See 48 U.N. GAOR Supp. (No. 12), U.N. Doc. A/48/18 (1993).

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Hatred is, of course, a sentiment or state of mind that may or may not express itself in violence or other illegal acts. When it does, it should be assimilated to intent or motive. The result of such intent and acts is considered under some legislations as a specific offense, called “hate crimes.” For instance, several laws authorize a judge to increase the penalties if the perpetrator “intentionally selects” the victim or targeted property because of some qualities of the person, or owner or occupant of the property, such as race, color, religion, national origin, or ancestry. This issue originated controversy at the public and judicial levels, and in the United States it was argued that such attitudes violate the First Amendment by punishing offensive thought. In June 1993 the United States Supreme Court, in the Wisconsin v. Mitchell case, unanimously ruled that states may impose harsher sentences on criminals who choose their victims on the basis of race, religion, or other similar characteristics.107 The Court decided that, under the indicated state statutes, motive plays the same role as in antidiscrimination laws. In the words of Chief Justice Rehnquist, while “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge, . . . the belief is no longer abstract once it provides the motive” for the illegal act. The defendant’s motive for committing the offense is an important factor, which may constitute an aggravating circumstance. The Wisconsin statute in question singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm: “[B]ias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harm on their victims, and incite community unrest.” Racial hatred is an aggravating factor when murder is committed and the judge must take into account racial animus, said the Court.108 There are, of course, enormous differences between organized brutal crimes in a situation of armed conflict, on the one hand, and isolated hate crimes in a stable society, on the other. However, between motives leading people to commit grave massive crimes and motives that induce them, as in the above-mentioned case for instance, to beat a person of a different color, or race, or religion, the difference is mainly a quantitative one. Rape is always a crime. If committed with the intent of “ethnically cleansing” an area, the penalty should be enhanced. This connects the issue of “ethnic cleansing” to that of hate crimes. Racial or religious hatred or bias is behind “ethnic cleansing,” as it may be behind genocide.

107

U.S.L.W. 4575–79 (1993). In Israel, in July 1994, the Knesset passed a law amending Sec. 144 (d) of the Penal Law of 1977, doubling the penalty for offenses committed with a racist motive. 108

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The Security Council placed emphasis on the dangers involved in acts described as “ethnic cleansing” in situations of armed conflict. The General Assembly related “ethnic cleansing” to racial hatred and discrimination, and therefore followed a more general approach. The description of “ethnic cleansing” used by the commission of experts appointed by the United Nations is more in line, although not completely, with the limited interpretation, and aims at establishing a well-defined, restrictively described offense. As to the target or victim, it seems that the word ethnic should be interpreted liberally, as meaning a distinct group of a given ethnic, racial, religious, or cultural character. This interpretation appears to be in line with the approaches of the General Assembly and Human Rights Committee and was also adopted by the special rapporteur on the implementation of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. It is also sustained by some manifestations of the interested parties. In all cases, undoubtedly, racial or religious hatred is involved, and thus hate crimes are being committed whatever the results deriving from the indicated motive.

CHAPTER SEVEN

PROSELYTISM AND CHANGE OF RELIGION

Issues related to change of religion — conversion, apostasy, proselytism, evangelization, and missionary activities — have caused considerable controversy during the preparation of human rights instruments concerning religious rights. In fact, during the drafting of the Universal Declaration on Human Rights in 1948 representatives of some states argued against any reference to an individual’s right to change religion. The controversy resurfaced in 1966 during the preparation of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). In 1981, when the penultimate draft of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief was presented to the General Assembly of the United Nations, opposition to such a reference could have prevented the unanimous acceptance of the declaration had a compromise not been accepted. However, the issues related to change of religion have not been resolved, and they are likely to continue to cause great difficulties if a draft convention on religious rights is considered. The situation is not surprising. Some religions do not accept the right to abandon and adopt another religion or the right to remain without a religion. In some cases apostasy or heresy are considered crimes and are severely punished. Additionally, some states demand that individuals follow formal steps in order to change their membership in a recognized religious community or congregation and even criminalize attempts to induce other persons to change their religion or join a different religious group. Moreover, these issues are part of the larger controversy between the universal character of modern human rights and cultural relativism. Advocates for cultural relativism argue that human rights law is strictly a Western institution and, therefore, not applicable to other cultures or societies. Accordingly, they contend that particular cultures or religions have to be protected against external intrusions likely to disadvantage indigenous cultural or religious identity. This approach, however, clashes with the view expressed by most scholars, which stresses the universal validity of human rights. The controversy over proselytism, conversion, teaching or dissemination of religious views, missionary activities, and related situations has recently come to the fore as a consequence of changes in international life. In Central Europe, Eastern Europe, and Africa conflicts have arisen between indigenous

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churches and foreign religions promoting missionary programs. In certain cases governments have been involved in such confrontations. For example, in Latin America the visit of Pope John Paul II in early 1996 highlighted the Catholic resentment toward evangelical prosperity.1 Additionally, in several countries, such as Russia, conflicts among churches have given rise to legal action, including penal measures. International judiciaries have intervened in a few instances, while in some countries the full power of the state has been mobilized to prevent foreign churches from attempting to attract converts from the local population. In 1993 the Human Rights Committee issued an important General Comment specifically on the question of conversion and proselytism. The committee observed that the freedom to have or to adopt a religion or belief necessarily entails the freedom to choose a religion or belief, including, inter alia, 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.2 The Human Rights Committee also pointed out that Article 18(2) of the ICCPR bars coercion that would impair the right to have, or to adopt, a religion or belief. Impermissible impairment includes the use (or threat) of physical force or penal sanctions to compel believers or nonbelievers (1) to adhere to their current religious beliefs and congregations; (2) to recant their religion or belief; or (3) to convert. The committee identified some particular policies and practices, such as those that restrict access to education, medical care, employment, or the rights to vote or participate in the conduct of public affairs guaranteed in the ICCPR as examples of illegitimate practices. We shall come back to this General Comment. In October 1995 the Human Rights Committee, dealing with the third periodic report submitted by Morocco, expressed concern at the obstacles to the right to change one’s religion. In its report on Libya the committee pointed out restrictions on an individual’s right to change religion.3 When the Committee on the Elimination of Racial Discrimination (CERD) discussed

1 Michael S. Serrill, “What the Pope Will Find When John Paul II Returns to a Region Where Catholic Marxism Is Out of Favor. The Big Threat: Evangelicals,” Time (Int’l) (February 12, 1996): 28. In the poorer regions of Latin America the people view evangelical religions as a protest against Catholicism and the existing power structure that remains powerless to effectuate change (ibid.). See further, Paul E. Sigmund, ed., Religious Freedom and Evangelization in Latin America: The Challenge of Religious Pluralism (1999). 2 Human Rights Committee, General Comments Adopted under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights: General Comment No. 22(48) (Article 18), U.N. GAOR Hum. Rts. Comm., 48th Sess., Supp. No. 40, at 208, U.N. Doc. A/48/40 (1993). 3 Report of the Human Rights Committee, U.N. GAOR, 50th Sess., Supp. No. 40, at 30, 34, U.N. Doc. A/50/40 (1995).

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the periodic report submitted by Cyprus, questions were asked regarding the genuine equality enjoyed by minority religions such as the Muslim community.4 United Nations special rapporteurs also addressed the issue when considering individual state reports. In 1996 a seminar organized by the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE) on constitutional, legal, and administrative aspects of the freedom of religion devoted considerable attention to the issue of change of religion or belief.5 As alluded to above, the international community cannot avoid formulating a coherent position on this subject, even if opponents argue that this has been settled during the evolution of international human rights and relations. Proselytism Vs. Religious Identity and Privacy No single human right can be considered in isolation; all human rights are interconnected. There may be tensions among various human rights. For instance, the right to proselytize, with respect to freedom of expression, might interfere with other rights equally deserving of protection. The rights proclaimed in Article 18 of the Universal Declaration of Human Rights,6 Article 18 of the ICCPR,7 and Articles 1 and 6 of the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief 8 may be affected by coercion or through religious persons being subjected to preaching that harms their beliefs. The provisions of Article 19(1) of the ICCPR, concerning the right to hold opinions without interference, are certainly applicable to religious opinions. Religious persons may not wish to be exposed to any type of indoctrination in any form, whether oral or written. In some instances states in which one religion prevails may grant the members of that religion certain privileges and advantages—including limitations on the proselytizing rights of other religions.9

4 Report of the Committee on the Elimination of Racial Discrimination, U.N. GAOR, 50th Sess., Supp. No. 18, U.N. Doc. A/50/18 (1995). 5 See Consolidated Summary of the Seminar, OSCE, Warsaw, 1996. 6 G.A. Res. 217A, GAOR, 3d Sess. (December 10, 1948). 7 999 U.N.T.S. 171 (March 23, 1976). 8 G.A. Res. 36155, U.N. GAOR, 36th Scss., Supp. No. 51, U.N. Doc. A/36/55 (1981). 9 See European Court of Human Rights, Kokkinakis v. Greece, European Human Rights Report 17, Part 5 (1994): 397. Mentioning this case and the prohibition of proselytism in Greece, Silvio Ferrari points out the preferential treatment given to the principal church over the followers of all other religious faiths, including new religions, cults, and nonrecognized religious communities, which arc perceived as foreign to the nation. See Silvio Ferrari, “The New Wine and the Old Cask: Tolerance, Religion and the Law in Contemporary Europe,” Ratio Juris 10 (1997): 75, 83.

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In addition to infringing on the right to hold opinions without interference, proselytism and indoctrination also implicate the right to privacy as proclaimed in Article 12 of the Universal Declaration and Article 17 of the ICCPR. The need to reconcile these conflicting rights to disseminate religious teaching, on the one hand, and to protect a religious group’s privacy, intimacy, isolation, or strong desire to defend its religious identity against any intrusion, on the other, constitutes an important consideration when attempting to establish the scope and limits of the right to proselytism. Fernando Volio has stated that the zone of privacy is a zone of freedom, a zone of isolation, a legal cloister for those qualities, wishes, projects, and lifestyles that each individual man, woman, or child wishes to enjoy or experience. Privacy includes not only the security of those areas protected by Article 17 of the covenant—home, correspondence, family, honor, reputation—but also rights listed in other articles, including, “for example, the freedom of thought, conscience, and religion” and “the right to determine the moral and religious education of one’s children.”10 Sometimes proselytism, protected under Article 19 of the ICCPR as the freedom to impart information and ideas of all kinds, regardless of frontiers, is limited by the rights of others. This is because dissemination of information and ideas may be offensive to the religious feelings of others. For example, the European Commission on Human Rights (ECHR) denied the appeal of a United Kingdom conviction of a poet who depicted Jesus Christ as a homosexual. The commission held that the artist’s freedom of expression could be restricted under Article 10(2) of the European Convention to avoid offending the religious sensitivities of others.11 Also in Britain, an attempt to prosecute Salman Rushdie failed in 1989 when a magistrate declared that legislation on blasphemy protected only Christianity, not Islam. Therefore, the ECHR denied an appeal submitted against the decision.12 Kevin Boyle criticizes “the continued existence of an offense protecting only the majority Christian faith in Britain . . . and its acceptance by the institutions under the ECHR as compatible with European human rights standards.”13

10 Fernando Volio, “Legal Personality, Privacy and the Family,” in The International Bill of Rights: The Covenant on Civil and Political Rights, ed. Louis Henkin (1981), 190, 193. Volio mentions a declaration of the 1967 Nordic Conference in Stockholm that connected the right to privacy with intimacy (defined as the right to live one’s life in an independent manner, without outside interference), which can be violated by intrusive communication, either verbal or written. 11 Gay News v. United Kingdom, Eur. Ct. H.R. 5 (1983): 123. 12 Choudhury v. The United Kingdom, Application No. 17439/90, reprinted in Human Rights Law Journal 12 (1991): 172. 13 Kevin Boyle, “Religious Intolerance and the Incitement of Hatred,” in Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination, ed. Sandra Coliver (1992), 61, 68.

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In the view of some authors the mere fact that proselytism may annoy the targets of such activity is not a sufficient justification for restricting uninvited speech. They contend that people should be free to disseminate their views on the true religion and should “not be silenced merely because some people would prefer not to hear their views.” Among other things, persons should be free to deliver literature door to door.14 However, in places where people are present by force of law—”where the listeners are a captive audience” (schools, hospitals, prisons, military installations)—the rule may be different. In classrooms, for example, where students are not permitted to leave, teachers and school officials should exert reasonable control. They should essentially try to protect both those who wish to communicate religious views and those who do not want “to be compelled to listen to a sermon.”15 The problem is similar in the other situations including captive audiences, where exposing the captive audience to proselytizing speech or literature becomes a form of coercion. European jurisprudence has confronted instances involving religious instruction in schools against the wishes of parents who oppose such indoctrination.16 These captive audience cases, however, do not always involve interfaith proselytism. In fact, sometimes religious instruction may be coercive even when the exposed group is part of the same religion.17 Thus, the problem of proselytism is a clash between rights. Which right should prevail in concrete situations cannot be decided in the abstract. A just solution may require striking an elusive balance. The clash between proselytism as equivalent to freedom of expression and the right to defend a group’s religious identity (coupled with the right to privacy) is an example of the delicacy of the matters involved. A free society must find ways of accommodating equally valid human rights. Arcot Krishnaswami, in his Study of Discrimination in the Matter of Religious Rights and Practices, accepted the legitimacy of restrictive measures in extreme cases. As such, his Rule 1 prohibits coercion and improper inducements. Principle 3, as elaborated by the Subcommission on Prevention of Discrimination and Protection of Minorities, refers to material or moral coercion.18 As we shall see, reports of the special rapporteurs (appointed by the

See Barry Lynn et al. eds., The Right to Religious Liberty (1995), 70–71. Ibid., 21–22; see also DeNooyer v. Livonia Public Schools, 799 F. Supp. 744 (F.D.Mich. 1992). 16 See Kjeldsen, Busk Madsen & Pedersen v. Denmark, 1 Eur. H.R. Rep. 711 (1976) (court decision). 17 The military authorities in Israel had to restrict the free access of one Jewish religious group to military quarters when its representatives tried to induce soldiers, also Jewish, to return to strict expressions of Jewish religiosity. 18 See Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices (1960). 14 15

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Commission on Human Rights and the subcommission) mention penal measures against missionary activity that have been adopted by several states. Some countries levy penalties only against material enticement, namely, giving or promising material benefits as an inducement to change one’s religion.19 In some cases it is difficult to draw the dividing line between legitimate proselytism and improper inducement. Thus, varying degrees of restrictive measures exist that are endorsed by different countries. Change of Religion and Proselytism In order to understand how international human rights law relates to issues of conversion, apostasy, proselytism, evangelization, and missionary activities, it is necessary to clarify the contexts in which those concepts are used. Essentially, they all turn on three major questions. First, is there a basic human right, of a universal and customary legal character, to change one’s religion or belief ? Second, is there a right to act so as to convince or induce other persons to change their religion or beliefs? Finally, if so, what are the limits, if any, of such a right? Compounding the difficulty of answering these questions is the fact that the terms used in these questions have a variety of meanings; which meaning attaches generally depends on the angle of observation. Specifically, what constitutes the sacred duty of evangelization for one group may be viewed by another group as improper proselytizing.20 Some groups consider a particular act to be a normal exercise of freedom of expression and freedom of teaching or propagating a religion or belief. At the same time, others may view the exact same act as an illegitimate intrusion into their privacy or group identity and a violation of their freedom of conscience. The common denominator, however, is religion, or, more precisely, religion or belief. Therefore, it is necessary to clarify the meaning of the three basic freedoms regarding religion or belief as proclaimed by modern positive human rights law—the freedoms of thought, conscience, and religion. Proselytism and related issues mainly concern freedom of religion in a strict sense. This freedom clearly includes freedom of belief, as something different from a narrow understanding of religion, and freedom from religion, understood as the right not to be coerced into accepting religious norms or behavior. The right to proselytize, and related freedoms, including the freedoms of expression, 19 Ibid. See also Asher Maoz, “Human Rights in the State of Israel,” in Religious Human Rights in Global Perspective: Legal Perspectives, cd. Johan D. van der Vyver and John Witte Jr. (1996), 349, 360. 20 See Cecil M. Robeck Jr., “Mission and the Issue of Proselytism,” International Bulletin of Missionary Research 20 (1996): 2.

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association, and teaching, must be interpreted in light of attempts to define religion. Unfortunately, consensus on the definition of religion does not exist. The terminology related to change of religion is complicated. Change of religion may be the result of two different states of mind and sets of actions. First, a person may, prompted by reason or emotion, reach the conclusion that his or her religion or belief is wrong, unsatisfactory, or insufficient. The person may then decide to opt out of the religion, adopt another religion or belief, or remain without any religion. This may lead the person to change his or her public or private behavior as well. Second, a change in a person’s convictions may translate into, or require, changes in that person’s affiliation or membership in a group. This derives from the fact that religious persons arc usually not isolated individuals but rather members of a religious group, community, congregation, or church. Such changes in group affiliation or membership are not always purely private and may require special formal measures in some countries and legal systems. Such changes of religion will not always be spontaneous or merely the consequence of intellectual or emotional causes or inducement. Sometimes external factors will be of great weight, if not decisive. Such factors may be the outcome of the activities of other persons, churches, or institutions. Representatives of such groups usually try to explain their own religious views and influence people through preaching, teaching, propagating, and advocating their religious convictions. Methods of inducement can be dangerous to the mental health of the prospective proselytes, particularly if sects combine religious ideas with disturbing forms of collective or individual behavior. To avoid such results, some states have imposed restrictive legislation on proselytism, often at the initiative of certain dominant religions. To understand the differences between illegitimate proselytism and legitimate conversion based on individual convictions and without external interference, further terminological clarifications seem necessary. It has been pointed out that “[o]ne group’s evangelization is another group’s proselytism.”21 A distinction between convert and proselyte is specifically made by some religions. The Spanish word conversos, for instance, was used in Christian Spain and Portugal for Moorish or Jewish converts to Christianity, and sometimes for their descendants. Unlike the terms Marranos, alboraycos, or tornadizos, the term conversos had no derogatory implications.22 The word proselytism later 21 Ibid., 2. See also Eugene P. Heideman, “Proselytism, Mission, and the Bible,” International Bulletin of Missionary Research 20 (1996): 10. 22 For a recent study on the Jewish orthodox view of proselytism and conversion, see Menachem Finkelstein, Proselytism, Halakha and Practice (1994). For a human rights-oriented reference to conversion, apostasy, and blasphemy in Jewish law, see Haim H. Cohn, Human Rights in Jewish Law (1984).

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acquired a pejorative, and sometimes threatening, meaning. Proselytism has been described as a kind of evangelistic malpractice involving improper activities.23 Activities are often considered illegal when they include intimidation, coercion, bribery, economic enticement, and similar practices. As to the present meaning of the aforementioned terms, it seems useful to distinguish between definitions based on religious, legal, and more general sources. General dictionaries reflect these distinctions. Webster’s New Dictionary of Synonyms states that convert and proselyte are synonyms.24 It has also been stated that both denote a person who has embraced another creed, opinion, or doctrine than the one he has previously accepted or adhered to. Convert commonly implies a sincere and voluntary change of belief. . . . Proselyte basically denotes a convert to another religion. . . . In general use . . . the term may suggest less a reverent or convicted and voluntary embracing than a yielding to the persuasions and urgings of another, be it an earnest missionary or zealot or someone with less praiseworthy motives.25 The term apostasy means “abandonment or renunciation of a religious faith.”26 The term apostasy is usually applied by members of the deserted faith to the change of one faith for another. An apostate, from the viewpoint of the religion, church, or group that is being abandoned, becomes a proselyte from the perspective of the corresponding religion, church, or group that is being joined. How apostasy and apostate are defined depends on the position of the respective churches or religions as well as on the ways or methods leading to conversion. The term evangelization is identified with Christian efforts to induce nonChristians to join the Christian religion, to accept its gospel (evangel ). Sometimes the term is attached to the attempts of some Christian churches to obtain the adhesion of Christians belonging to other Christian churches, inducing them to change their affiliation and embrace the evangelizing group. The term mission refers to “persons commissioned by a . . . religious organization for the purpose of propagating its faith.”27 Missionaries are those sent to do this. In the view of groups exposed to missionary activities and opposed to them, the term mission has also acquired a derogatory and even threatening meaning. I have mentioned Catholic resentment regarding evangelical prosperity in Latin America in recent years. Resentment may be too mild a description for the reaction of some religions who see their identity endangered.

23 24 25 26 27

See Robeck, “Mission and the Issue of Proselytism,” 1. Webster’s New Dictionary of Synonyms (1973), 189, 646. Heideman, “Proselytism, Mission, and the Bible,” 10. Webster’s Third New International Dictionary (1993), 102. Ibid., 1445.

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Thus, the terminology concerning changes of religion is imprecise at best and is frequently accompanied by a heavy burden of suspicion or prejudice, some of which may well be justified. Even so, the drafters of various human rights instruments desired success in incorporating the aforementioned right into the universal framework for the protection of human rights. Accordingly, they put aside preferences regarding definitions and adopted a more practical approach. On this sensitive topic, though, even this was not enough to avoid confrontations. This becomes particularly apparent in the discussion of those instruments and the history of the travaux preparatoires below. Proselytism and Conversion in the U.N. Era Article 18 of the Universal Declaration of Human Rights and Article 18 of the 1966 Covenant on Civil and Political Rights are the most important human rights provisions concerning religion. Their relevance to the issues of change of religion, conversion, and proselytism is crucial. These articles refer to three freedoms: thought, conscience, and religion. Freedom of thought is beyond regulation. As Leo Pfeffer properly observed, there is no need for a constitutional guarantee to ensure that freedom “for, as the common-law adage has it, the devil himself knows not the thoughts of man.”28 In general, neither states nor individuals can interfere with thoughts or beliefs, whether religious or antireligious, which are not translated into actions, behavior, or conduct.29 These thoughts and beliefs belong to the most internal sphere of human life, and there is no way to coerce a human being to continue or abandon specific religious beliefs. Illegal and exceptional methods of acting on the human mind are beyond the scope of this discussion. Relevant to our subject are the freedoms of conscience and religion as proclaimed in both Articles 18 and related human rights provisions. It was the incorporation of references to the right to change religion that engendered debates and clashes in United Nations bodies. This development is not surprising in light of the approach of classic international law to the issue of change of religion, either imposed or voluntary. I have addressed the historical

28 A. Bradney, Religions, Rights and Laws (1993), 5. Leo Pfeffer also saw as “an article of organic law that the relations between man and his Maker were a private concern, into which other men have no right to intrude” (Leo Pfeffer, Church, State, and Freedom [1953], ix). 29 See, K. J. Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” in Henkin, International Bill of Rights. Partsch does not refer at all to freedom of thought. Martin Scheinin, “Article 18,” in The Universal Declaration of Human Rights: A Commentary, ed. Asbjorn Eide (1992), 263, writes that “states have not considered it difficult to allow their citizens the freedom to think. Difficulties start in relation to the right to express convictions, or act in accordance.”

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developments regarding this matter in former chapters. A short summary may be helpful here to understand recent difficulties. The rule cuius regio, eius religio of the Religious Peace of Augsburg (1555) and its coercive implications was modified by bilateral treaties in the early stages of modern international law, most notably in the Peace of Westphalia (1648). Post-seventeenth-century treaties often incorporated protective clauses for religion on the grounds of reciprocity. Several countries enacted democratic and liberal constitutions containing rules on freedom of religion and belief, and prohibiting forced conversions. Between the two world wars, an interesting development arose regarding religious rights—the minority treaties. The minority treaties were a scheme for the protection of national, ethnic, cultural, or religious minorities. They also contained numerous provisions concerning religious rights. This system collapsed, along with the League of Nations, at the same time that peace and democracy in Europe collapsed. One cannot assess how these treaties would have evolved had World War II not ended the system.30 However, the entire system was discredited when the San Francisco Conference met and attempted to build a new international order based on the United Nations. The emphasis was now almost exclusively on individual rights and freedoms; group rights were suspect. Religious human rights were considered adequately protected by the general rules regarding the rights of the individual, coupled with the principle of nondiscrimination. Whenever someone’s rights were jeopardized or violated because of a group characteristic—race, religion, color, ethnic or national origin, culture, or language—the necessary remedy would result from protecting the rights of the person, on a purely individual basis, mainly by the rule of nondiscrimination.31 The Universal Declaration of Human Rights The United Nations Charter (1945) and the Universal Declaration of Human Rights (1948) were drafted with this backdrop in mind. The United Nations Charter contains very few references to religious rights and none on change of religion.32 Article 2 of the 1948 Universal Declaration of Human Rights,33 30 Theodore S. Orlin, “Religious Pluralism and Freedom of Religion: Its Protection in Light of Church/State Relationships,” in The Strength of Diversity—Human Rights and Pluralist Democracy, ed. Allan Rosas and Jan Holgenscn (1992), 94 (pointing out that the minority treaties system failed to universalize freedom of religion and did not reflect the growing need to protect religions and beliefs not seen as irritants to the peace or not linked to politically unstable situations). 31 See Natan Lerner, Group Rights and Discrimination in International Law (2003); Warwick McKean, Equality and Discrimination Under International Law (1983). 32 For human rights in the Charter, see generally Hersch Lauterpacht, International Law and Human Rights (1950). For the text, see 1 U.N.T.S. XVI. 33 Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., Supp. (1948).

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however, forbids distinctions of any kind, including religion, in the enjoyment of the rights and freedoms set forth in the Declaration. Article 18, of decisive importance, provides that [e]veryone 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 26 includes a reference to religious groups. It contains a provision related to the subject at hand: education shall promote understanding, tolerance, and friendship among all religious groups. Article 29, on limitations in the exercise of the proclaimed rights, is also relevant. It states that limitations on individual rights and freedoms are only those determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society. The very difficult problem in the drafting of the Universal Declaration— again controversial when the 1966 Covenants and the 1981 Declaration were drafted—was the freedom to change one’s religion or belief, a freedom denied by some religions and states. The clause was originally opposed but was finally adopted by a vote of 27 to 5, with 12 abstentions. The authors of the 1948 Universal Declaration were aware of the many questions involving apostasy, missionary activities, coercion and enticement, proselytism and its limits, the status of new or young religious movements struggling for recognition, and the social dangers that accrue from sects using manipulative tactics. As early as 1948, when the Commission on Human Rights discussed the drafting committee’s text, the issue of conversion arose. Saudi Arabia, supported by several Muslim states, submitted an amendment to delete the words “freedom to change his religion or belief.” The Saudi spokesman claimed that the amendment’s goal was to prevent missionaries from abusing the right based on political motivations. While Egypt’s representative initially voiced reservations about the text, he ultimately voted in its favor. “By proclaiming man’s freedom to change his religion or belief,” he stated, “the Declaration would be encouraging, even though it might not be intentional, the machinations of certain missions, well known in the Orient.”34 The Third Committee of the General Assembly rejected all amendments. Article 18 as a whole was adopted by 38 votes to 3, with 3 abstentions. The

34 J. A. Walkate, “The Right of Everyone to Change His Religion or Belief,” Netherlands International Law Review 2 (1983): 146, 152. The Lebanese representative, Charles Malik, a Christian, defended the text and participated in its preparation. The representative of Pakistan took a similar position.

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General Assembly adopted the declaration as a whole by 48 votes to 0, with 8 abstentions (from Saudi Arabia, South Africa, Belorussia, Czechoslovakia, Poland, Ukraine, USSR, and Yugoslavia). The law of Islam, which is positive law in several states, inspired the Muslim objections to the explicit recognition of the right to change one’s religion or belief. In Robinson’s opinion, the fact that the clause was adopted by a vote of 27 to 5, with 12 abstentions, evidences the understanding that the declaration must be universal and that this clause did not represent a specific right but was the consequence of freedom of religion and thought.35 The controversy, however, was not over. Since 1948 the question of the recognition of the right to change one’s religion or belief has dominated the debate and dealings in the area of religious human rights.36 During the General Assembly’s discussion about the respective article of the 1981 Declaration, some forty Islamic states sought to delete the explicit reference to the right to change one’s religion. Had this deletion occurred, it would have affected the validity of Article 18 of the Universal Declaration and Article 18 of the International Covenant on Civil and Political Rights. In 1981 several Islamic states, including Iran, Iraq, Jordan, Libya, Morocco, Senegal, Syria, and Tunisia, had already ratified the covenant without any reservation to Article 18.37 The Krishnaswami Study The first important United Nations document on change of religion in the framework of a global and comprehensive study on religious rights was Arcot Krishnaswami’s Study of Discrimination in the Matter of Religious Rights and Practices, whose general provisions we reviewed. Krishnaswami deals carefully with the issues related to change of religion. He mentions the clear distinction between freedom to maintain, or change, religion or belief, which cannot be restrained, and freedom to manifest those beliefs, already present in the writings of John Locke. Locke, whose views on toleration are not totally immune to criticism, wrote in his first Letter Concerning Toleration (1689): No man by nature is bound unto any particular church or sect, but everyone joins himself voluntarily to that society in which he believes he has found that profession and worship which is truly acceptable to God. The hope of salvation, as it was the

Nehemiah Robinson, The Universal Declaration of Human Rights, 129. See Walkate, “The Right of Everyone to Change His Religion or Belief.” 37 See, in this respect, a letter sent by the 1981 chairman of the Third Committee, Dr. Declan O’Donovan, to Roger S. Clark, mentioned in Clark’s article, “The United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” in Chitty’s Law journal 31 (1983): 23, n. 36. 35 36

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only cause of his entrance into that communion, so it can be the only reason of his stay there. . . . A church, then, is a society of members voluntarily united to that end.38

For Krishnaswami, freedom to maintain or to change religion or belief falls primarily within the domain of the inner faith and conscience of an individual. However, cases of interference with this freedom exist, as followers of most religions or beliefs are members of some form of organization or community. Compelling an individual to join an organized religion or belief, or preventing an individual from leaving, must be considered an infringement of religious human rights. Even so, admits Krishnaswami, the mere existence of rules or procedures for formally joining or leaving a religion or belief is not necessarily an infringement of those rights. Some states consider the establishment of new religious organizations dangerous because of the impact that a religion or belief normally has upon its followers. Consequently, these states may limit the freedom to change religion. Other times limitations are the result of social pressures rather than of governmental action. If a dissenting group is relatively large and tries to gain converts, the predominant group may be inclined to impose restrictions. Restrictions are more likely if the predominant religion or belief sees the new group as a splinter of the predominant group or as a schism or heresy. They may also be the result of links between a minority group and co-religionists in another country.39 Compulsory conversion is not merely an issue of the past. Krishnaswami mentions contemporary instances of individuals or groups being pressured to convert. Such pressures range from outright persecution to minor discriminatory measures. Frequently the public authorities simply fail to curb sufficiently pressures that are exerted by religions or beliefs enjoying a preferential position in the state,40 although it has become increasingly rare for public authorities to exert such pressure directly. Some legal systems deny formal recognition to schismatic sectors and instead continue to consider the new group as a part of the parent group. In other instances dissenting elements are either compelled against their will to merge with the parent group or are totally denied the right to change religion or belief. Most religions clearly welcome converts formerly belonging to other faiths. The same groups reluctantly admit the conversion of individuals who chose to leave their religion or belief. Apostasy may be prohibited by religious law or discouraged by social ostracism. In the past it was even severely punished by exile, excommunication,

38 39 40

Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, 3. Ibid., 21. Ibid., 24.

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or death. Even now state recognition of a group’s religious law as the law of the state may render a change of religion or belief legally impossible. Some states enforce the religious law of recognized communities in matters relating to personal status. In such states an individual’s change of religion or belief may lead to certain incapacities or the loss of certain family rights. These same outcomes sometimes occur when a religious group refuses to grant a member the right to opt out. Some states require an individual to register formally with religious or state authorities before granting legal effect to a change of religion. Sometimes such formalities are employed to dissuade individuals from changing religions. Problems connected with religious education and with conversion of children are particularly complicated. In some countries antenuptial agreements prevail upon the wishes of the parent or guardian. While the best interest of the child should be the paramount consideration, attention should also be paid to the expressed or presumed wishes of deceased or absent parents. The clash among parental authority, state policies, and the best interest of the child is frequently a source of difficulties, and judicial intervention is often necessary. The methods of propagating a religion play a role as well. Determining which inducements are improper may be difficult. Some missionaries establish orphanages or schools, sometimes creating problems. Therefore, some countries have banned the running of educational institutions by missionaries. Similar objections have been voiced concerning other institutions managed by missionaries, including hospitals and social-assistance programs. Defining the scope of missionary activities is difficult, particularly when such activities take place among weak or vulnerable social sectors. Krishnaswami emphasizes that attempts to convert individuals may conflict with their freedom to maintain their own religion or belief. This conflict may cause individuals and their respective groups to resist such attempts. Such resistance may make the coexistence of faiths difficult and cause clashes due either to the contents of the message or the methods used. Such clashes may necessitate state intervention, but the state should not exceed what is needed to restore peace.41 Cultural factors may dictate a society’s attitude toward dissemination or propagation of a faith. Sometimes the powers that govern non-self-governing territories do not allow missionary work, even if the administering authority is of the same religion as the missionaries. This is because the activities of foreign missionaries may not be in harmony with the existing order. Krishnaswami illustrates this phenomenon by using a British government memorandum concerning Northern Nigeria, Sudan, and Somaliland.42 The 41 42

Ibid., 30. Ibid., 40 n. l.

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government took the line that since Northern Nigeria and the Sudan were Islamic countries and the indigenous rulers were unwilling to permit Christian preaching, it would be wrong for them to permit Christian missionary work until public opinion should change. The same approach was applied to the Somaliland Protectorate.43 Hesitancy in such cases may have been based on the fear of the introduction of a fresh cultural impact. With the end of classic colonialism, the above situation has virtually disappeared. In determining appropriate limitations concerning religious propagation, states must seek to preserve social stability and national security. The goal in every case should be to avoid the imposition of undue restrictions. The state has the right to limit improper inducements, such as bribes, that instigate a change of faith that is not the result of genuine conviction. When political tensions escalate between two countries, one country may deem it necessary to curtail the work of missionaries coming from the other country. Other considerations, such as morality, the general welfare, or the protection of public health, may also necessitate limitations upon faith propagation. Sometimes the problem is not the religious message itself but the method employed that others find offensive. This may lead to special laws, such as those that prohibit activities affecting the religious feelings of the clergy or believers of a given faith. Occasionally such legislation may be so abusive that it permits censorship and regulation of publications and the media. However, blasphemy laws have become mostly, although not entirely, obsolete and are generally not applied.44 Rather, new issues have emerged in our day, including the use of computers to disseminate religious views. This problem, not obvious at the time of Krishnaswami’s work, presents an acute difficulty when the views espoused are incompatible with the legal order of a state. Regulation of computer proselytism is difficult at best. Krishnaswami concludes that the dividing line between justifiable and more suspect restraints on religious propagation is thin. “[A]lthough the right to disseminate a faith must be safeguarded, this should be done within the framework of ensuring to everyone freedom to maintain his religion or belief.” Acceptable limitations “should be such as will maintain peace and tranquility both inside and outside the country or territory, failing which no religious freedom is possible.” Certain limitations upon particular forms of dissemination are permissible “in the interest of morals as conceived by society as a whole,” but they should be temporary and removed as quickly as possible. The general and obvious rule is that everyone should be free to disseminate a

43

Ibid., 40. See Leonard W. Levy, Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie (1993). 44

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religion or belief provided the actions “do not impair the right of any other individual to maintain his religion or belief.”45 Consistent with this approach, Krishnaswami elaborates a series of basic rules for the attention of governments. Rule 1 states: “Everyone should be free to adhere, or not to adhere, to a religion or belief, in accordance with the dictates of his conscience.” Rule 3 provides: “No one should be subjected to coercion or to improper inducements likely to impair his freedom to maintain or to change his religion or belief.” Similarly, Rule 10 proclaims: “Everyone should be free to disseminate a religion or belief, in so far as his actions do not impair the right of any other individual to maintain his religion or belief.” Rule 16(4), on the duties of public authorities, reads: “(a) The freedom of everyone to maintain or change his religion or belief must be ensured. . . . (c) In case of a conflict between the requirements of two or more religions or beliefs, public authorities should endeavor to find a solution assuring the greatest measure of freedom to society as a whole, while giving preference to the freedom of everyone to maintain or to change his religion or belief over any practice or observance tending to restrict this freedom.”46 On the basis of the Krishnaswami report, the subcommission produced “Draft Principles on Freedom and Non-Discrimination in the Matter of Religious Rights and Practices.” The following principles, separated into two parts, are relevant to the subject of proselytism and conversion. Part I provides: “Everyone shall be free to adhere, or not to adhere, to a religion or belief, in accordance with the dictates of his conscience. . . . 3. No one shall be subjected to material or moral coercion likely to impair his freedom to maintain or to change his religion or belief.”47 Part II provides: 8. (a) Everyone shall be free to teach or to disseminate his religion or belief, either in public or in private. (b) No one shall be compelled to receive religious or atheistic instruction, contrary to his convictions or, in the case of children, contrary to the wishes of their parents and, when applicable, legal guardians. 9. (a) No group professing a religion or belief shall be prevented from training the personnel intending to devote themselves to the performance of its practices or observances, or from bringing teachers from abroad necessary for this purpose.48 The freedoms proclaimed in Part I, Krishnaswami writes, shall not be subject to any restrictions. The freedoms proclaimed in Part II can be restricted 45 46 47 48

Krishnaswami, Study of Discrimination, 41. Ibid., 63. Ibid., 71. Ibid., 72–73.

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only as required by morality, health, public order, and the general welfare in a democratic society, and these restrictions should be consistent with the purposes and principles of the United Nations.49 Krishnaswami’s study and the ensuing draft principles have added significantly to the evolution of United Nations instruments respecting change of religion and greatly influenced future texts. Their importance is further enhanced by the fact that the study was the first document prepared for the United Nations providing a comprehensive analysis of this delicate subject. The 1966 Covenants The International Covenants on Economic, Social, and Cultural Rights and on Civil and Political Rights, which were adopted in 1966 by Resolution 2200 A (XXI) by the United Nations, accurately reflect the general orientation and trends that inspired the 1948 Universal Declaration. The most relevant provisions in the ICCPR, as we already stated, are Articles 18, 20, and 27. Article 18(1) generally tracks the wording of Article 18 of the Universal Declaration but is slightly different insofar as the ICCPR does not refer explicitly to the right to change one’s religion or belief. Rather, it uses milder compromise language, stemming from Muslim objections to the text and attempts to delete the clause. Egypt, Saudi Arabia, Yemen, and Afghanistan were among the states opposed to repetition of the 1948 wording. Western advocates argued that an explicit reference to the right was necessary to avoid uncertainties and prejudiced interpretations.50 The Saudi Arabian representative expressed concern that the original text of Article 18 might be understood as favoring missionary activities or the propagation of antireligious beliefs. Thus, he submitted an amendment to delete the words “to maintain or to change his religion or belief, and freedom.” He later withdrew his amendment and supported one submitted by Brazil and the Philippines introducing the words “to have a religion or belief of his choice” instead of “to maintain or to change his religion or belief.” Western representatives criticized this amendment for being too static and preventing more than one choice.51 For example, the British representative 49 For the situation in some societies, such as India, see Subash C. Kashyap, Delinking Religion and Politics (1993). Kashyap emphasizes that proselytism promotes religious conflict, particularly when conversion is alien to the nonmissionary nature of the religion of the majority community and also is likely to be brought about by illegitimate or unfair means in the context of rampant illiteracy and poverty (ibid., 25). 50 See Partsch, “Freedom of Conscience and Expression, and Political Freedoms”; Scheinin, “Article 18.” See also Walkate, “The Right of Everyone to Change His Religion or Belief ” (summarizing the history of the amendments and votes that finally led to the adopted text). 51 See Walkate, “The Right of Everyone to Change His Religion or Belief.”

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proposed including the words “or to adopt” in the Brazilian-Philippine amendment. Afghanistan requested a separate vote on the British proposal; it was retained by 54 votes to 0 with 15 abstentions. The amendment as a whole was adopted by the Third Committee by 70 votes to 0 with 2 abstentions. Article 18 as a whole was approved unanimously by the Third Committee on November 18, I960.52 Walkatc points out that six years later the General Assembly would adopt unanimously the covenant as a whole.53 No reservations were entered regarding Article 18. The final version of the covenant, therefore, proclaims that the right of everyone to freedom of thought, conscience, and belief “shall include freedom to have or to adopt a religion or belief of his choice.” It seems quite clear that the text recognizes the right to change one’s religion or belief, that is, to abandon one religion and adopt a different one. The discussion during the preparation of the Covenant supports this liberal interpretation. Nevertheless, the change in language is significant and problematic—particularly in those countries where religious law is part of the state law. Article 18(2) confirms the approach followed in Article 18(1). It states that no one shall be subject to coercion that would impair a person’s freedom to have or to adopt a religion or belief of his or her choice. Coercion is not defined, but it seems reasonable to interpret it not only to mean the use of force or threats but also to include more subtle forms of illegitimate influence, such as psychological and moral pressure or material enticement. Article 18(4) deals with the liberty of parents and/or legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. It should be read in conjunction with Article 13(3) of the International Covenant on Social, Cultural, and Economic Rights. Proselytism and change of religion are again intimately connected to this sensitive area. The UNESCO Convention against Discrimination in Education, the 1981 Declaration, the Convention on the Rights of the Child, and other international instruments also discuss this important interaction between religion and education.54 Since this interaction between religion and education is of recurring interest in both international and constitutional law, adjudication at the national and international levels has frequently been necessary. For example, in 1978 the Human Rights Committee dealt with an interesting complaint submitted

52 See Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” 447 nn. 5–8. Partsch takes the view that, despite the changes in wording in comparison to the Universal Declaration, the text confirms the freedom to change one’s religion or beliefs (ibid., 211). 53 See Walkate, “The Right of Everyone to Change His Religion or Belief,” 153. 54 See United Nations, Human Rights: A Compilation of International Instruments (1993) [hereafter Human Rights], 101, 122, 176.

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by the Union of Free Thinkers in Finland on the issue of teaching the history of religion in public schools. The committee opined that such instruction, if given in a neutral and objective way that respected the convictions of parents and guardians who do not believe in any religion, does not violate Article 18 of the covenant.55 The link between this issue and proselytism cannot be discussed in merely abstract terms. How can we ensure that religious instruction is objective and purely informative rather than an attempt to indoctrinate children who belong to other religious persuasions? Put differently, when does such religious instruction become coercive proselytism that takes advantage of the teacher’s intellectual influence? This issue can only be considered specifically; it depends significantly upon other factors concurring or counterbalancing the instruction given at school. Finally, Articles 20 and 27 of the Covenant on Civil and Political Rights are relevant to the issue of proselytism. Article 20 prohibits any advocacy of religious hatred. Article 27 reflects a restrictive approach to minority and group rights. It does not refer to proselytizing activities but does mention “the right of persons belonging to . . . minorities to profess and practice their own religion.” The General Comment The Human Rights Committee, the body in charge of implementing the Covenant on Civil and Political Rights, issued an important General Comment in 1993, already summarized previously. The General Comment speaks to issues of proselytism and conversion and stresses that the terms belief and religion are to be broadly construed. Such an understanding leads to a rejection of “any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established or represent religious minorities that may be the subject of hostility by a predominant religious community.”56 This remark seems intended to avoid situations in which old, well-established religious groups enjoy more protection and rights than recently established or minority religious groups. Freedom of speech is also involved, and Article 18 should be read in conjunction with Article 19(1) of the covenant, which sets forth the general protection of speech. Additionally, no one should be compelled to reveal his or her thoughts or adherence to a particular religion or belief. Paragraph 5 of the General Comment reaffirms that the Covenant on Civil and Political Rights bars any 55 See Erki Hartikainen v. Finland, Communication No. 40/1978, in United Nations, Selected Decisions of the Human Rights Commitee under the Optional Protocol, 74 U.N. Doc. CCPR/C/OP 1,10.4 (1985). Finland took into consideration the committee’s views and introduced changes in its teaching program. 56 U.N. GAOR, 48th Sess., Supp. No. 40, U.N. Doc. No. A/48/40, Annex VI (1993), para. 2.

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coercion that would impair the right to replace one’s current religion or belief with another or with atheistic views—in other words, the right to conversion. According to the committee, coercion means the use or threat of physical force; penal sanctions; and restrictions on access to education, medical care, employment, or other rights guaranteed by the covenant. Again, the same protection is granted to holders of nonreligious beliefs. The General Comment also discusses the relationship between education and the teaching of religion. Public school instruction regarding the history of religions and ethics is permitted if given in a “neutral” and “objective” manner. Public school instruction focusing on a particular religion or belief is inconsistent with the covenant, unless the wishes of parents and guardians are protected by nondiscriminatory exemptions or alternatives. Freedom to teach a religion or belief incorporates the liberty of parents or guardians to guarantee for their children a religious and moral education in conformity with their convictions. The committee points out that Article 18(3) of the ICCPR, concerning limitations, should be interpreted strictly. Permissible limitations should be established by law and interpreted so as to protect the rights guaranteed under the covenant. Article 18(3) mentions limitations based on morals. The committee examines this concept, drawing from many social, philosophical, and religious traditions. The fact that a religion is recognized as a state religion (that is, considered official or traditional) or is the majority religion should not afford it special rights or privileges. Any special privileges for members of a majority religion should be considered discriminatory. Moreover, nonbelievers, members of minority religions, and adherents of religions without special state recognition should not suffer discrimination or impairment in the enjoyment of any rights under the covenant. States should report on measures taken in this area and on the rights of minorities. They should also provide information regarding practices that may be punishable, such as blasphemy, heresy, and related matters. The 1993 General Comment summarizes the principal views of the Human Rights Committee regarding change of religion. The committee provides additional information on change of religion in its yearly reports.57 When considering the periodic state reports, members of the committee ask relevant questions and require supplementary data from state representatives on legislation and facts regarding conversion and proselytism. For example, the committee asked Morocco to detail procedures for the recognition of religious sects and to define the meaning of terms such as religion of the state, revealed religions, and heretical sects. When considering an Austrian report, the committee discussed the status of Jehovah’s Witnesses and criminal rules concerning

57

Issued as General Assembly Official Records (GAOR), Supp. No. 40.

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blasphemy. The issues of apostasy in Sudan, blasphemy in the United Kingdom, the status of non-Catholic churches in Argentina, and religious teaching in Colombia were also topics of discussion.58 The committee has considered very few individual complaints or communications related to religious rights, as compared to other rights. Though a few cases have made reference to proselytism and conversion, the matter has not been directly addressed. Similarly, the Committee on Economic, Social, and Cultural Rights has had no opportunity to address this subject. This is consistent with the indirect way in which this covenant refers to religious rights— mainly in connection with educational and parental rights.59 The 1981 Declaration The Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief was promulgated by the General Assembly of the United Nations on November 25, 1981—the product of some sixteen years of negotiation.60 Some of the major problems confronted by the General Assembly were the issues concerning change of religion, the right to proselytize, and its limits. Muslim delegations were opposed to a guarantee of these rights. The matter was ultimately settled by way of a twofold compromise. First, explicit references to the right to change one’s religion were deleted from the text, both in the Preamble and in Article 1. This alteration was a departure from the wording of both the 1948 Universal Declaration and the 1966 Covenant on Civil and Political Rights. The new wording weakened the guarantee of religious freedom and jeopardized two decades of efforts. A second alteration was necessary to persuade the West to accept the change; a new Article 8 was added that states nothing in the declaration “shall be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights and the International Covenants on Human Rights.” Most experts and scholars do not consider the differences in the wording of the 1981 text as constituting a departure in meaning from previous instruments.

58 See U.N. GAOR, Supp. No. 40 (summary of the discussion of the respective country reports). 59 For the text of the Covenant on Economic, Social and Cultural Rights, see Human Rights, 8. On the respective Committee, see generally Philip Alston, “The Committee on Economic, Social and Cultural Rights,” in The United Nations and Human Rights: A Critical Appraisal, ed. Philip Alston (1992) See generally Asbjorn Eide et al., eds., Economic, Social and Cultural Rights (1995). 60 For the text, see Human Rights, 122. For an analysis of the declaration see i.a. Donna J. Sullivan, “Advancing the Freedom of Religion or Belief through the U.N. Declaration on the Elimination of Religious Intolerance and Discrimination,” American Journal of International Law 82 (1988): 487.

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A lingering question is whether states that did not ratify the covenants may claim that the right to change religion, although included in Article 18 of the Universal Declaration, cannot be afforded the status of customary international law insofar as those states are concerned, in light of their objections to the text.61 However, the compromise reached in the 1981 text resulted from a collective eagerness to see the draft adopted. The compromise would have failed had it not been made clear that the right to change one’s religion was preserved, though not explicitly spelled out. The Irish diplomat Declan O’Donovan, chairman of the Third Committee in 1981, did not see the retention of the words “or to adopt” as essential. He admitted, however, that its removal “was a concession by Western states that they felt obliged to make in order to advance the subject of religious belief.”62 J. A. Walkate, who represented the Netherlands in the Third Committee, actively participated in the negotiations during the thirty-sixth session of the General Assembly (1981). He summarized the negotiations in a most illuminating account.63 The text prepared by the Commission on Human Rights had been submitted by the Economic and Social Council (ECOSOC) on May 8, 1981, by Resolution 1981/36. The resolution recommended that the General Assembly adopt the appended declaration. The vote was 45 to 0, with 6 abstentions (Algeria and the Communist members of ECOSOC). The Third Committee of the General Assembly discussed the draft over the course of twelve meetings. A group of Islamic states opposed the text to the extent that it concerned the question of the right to change religion. Particularly at issue were draft preambular paragraph 2, in fine, and part of Article I. The second paragraph of the preamble begins: Considering that the Universal Declaration of Human Rights and the International Covenants on Human Rights proclaim the principles of nondiscrimination and equality before the law and the right to freedom of thought, conscience, religion and belief, including the right to choose, manifest and change one’s religion or belief. . . . Article I reads: 1. 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. . . . 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 61 Consider the judgment of the International Court of Justice in North Sea Continental Shelf Cases, 1969 ICJ, at 22 (discussing the formation of new rules of customary law on the basis of what was a purely conventional rule). 62 See Clark, “The United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” 38. 63 Walkate, “The Right of Everyone to Change His Religion or Belief.”

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Clearly, the phrases “to choose,” “to change one’s religion or belief,” “to have or to adopt a religion or belief of his choice,” and freedom from “coercion which would impair his freedom to have or to adopt a religion or belief of his choice” mean precisely what the Universal Declaration and the covenant proclaim. It was the confirmation and repetition of this wording that the Muslim representatives opposed. Islamic spokesmen pointed out that, according to the Qur’an, a Muslim cannot change his or her religion. For this reason, the Islamic states were ready to support the proposed text, without a vote, if the words “to adopt a religion or belief of his choice” and “to change one’s religion or belief ” were deleted. Alternatively, the Muslim group suggested referring the draft to the Commission on Human Rights for further work or deferring the matter to a later session. The Western delegations tried to explain that the controversial texts were already part of the existing human rights law and that Islamic states such as Iran, Iraq, Libya, Morocco, Senegal, Syria, and Tunisia had already ratified the covenant without any reservation to the now objectionable terminology. The explanations were of no avail. Representatives of Kuwait, Egypt, Iraq, and Saudi Arabia were particularly adamant in demanding the change in wording regarding conversion. Walkate summarizes the predicament of the Western group. They were eager to have the declaration proclaimed at the thirty-sixth session but were wary of the proposed changes. Walkate states that the Western group felt they could only accept a change if a new article were added—providing that nothing in the declaration should be construed as a derogation or restriction upon basic human rights instruments. One possibility contemplated by the Western group was to revive a Netherlands proposal in the commission’s working group. This proposal asserted that there shall be no restriction upon, nor derogation from, any of the provisions of the covenant or any other international instrument relating to the elimination of intolerance and discrimination based on religion or belief “on the pretext that the present declaration does not recognize such rights or it recognized them to a lesser extent.”64 Walkate indicates that the Islamic group feared that the whole declaration, to which in general it attached importance, could be in danger. Therefore, after lengthy deliberations, they accepted the “package deal,” provided no formal vote would take place in the Third Committee. Intense negotiations by the Third Committee’s chairman, Declan O’Donovan, led to acceptance of this deal. The East European states were not concerned with the issue of the right to change religion but sought to strengthen the term belief. O’Donovan brokered another compromise, which consisted only of adding the word “whatever” in some places, a rather modest demand. The new text, as produced by the 64

Ibid., 150.

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Third Committee, incorporated these changes, eliminated the explicit references to the “right to change religion” in the Preamble and in Article 1, and added Article 8 as a general safeguard. The new text was adopted without a vote. When the modified draft came to the Plenary, the declaration was proclaimed (without a vote) on November 25, 1981. A few Muslim delegations felt it necessary to formulate explanations for their support. Iraq (speaking on behalf of the Organization of the Islamic Conference), Syria, and Iran introduced a specific reservation as to the applicability of “any provision or wording of the Declaration which might be contrary to Shari’a or to any legislation or act based on Islamic law.”65 This attitude of Muslim countries must be seen in historical perspective. In an article discussing migration as viewed by classical Islamic law, Sami A. Aldeeb Abu-Sahlieh points out that Muhammad himself dealt with the issue of conversion.66 People who were not monotheists had to choose between conversion or war. Monotheists wishing to remain in their own religion had to accept the political authority of the Muslims and pay a tribute. Otherwise, they could expect war. Thousands of non-Muslims underwent forced conversion to Islam in Spain and elsewhere. Although the Qur’an speaks against forced conversion, such conversions of Christians and Jews took place under Muslim rule until the early decades of the twentieth century.67 Presently, Islam is the state religion in many predominantly Muslim countries. In some, citizenship is reserved for Muslims and conversion of Muslims to another religion is forbidden. The wording of the 1981 Declaration with regard to the right to change religion met with no other objections besides that of Muslim groups. Proselytism, with some limits, is considered a legitimate means of using freedom of expression to propagate one’s faith. Similarly, conversion or opting-out of a religion is considered a legitimate human right. There is almost universal consensus on

65 Ibid., 151. The meaning of reservations to General Assembly declarations, is, of course, involved, particularly in the case of states that ratified the covenant without reservations. It should be remembered that Article 18 of the covenant, which follows the text of the Universal Declaration, is among the nonderogable articles according to Article 4 of the covenant. The covenant as a whole was adopted unanimously. The question is, therefore, to what extent the interpretations and/or declarations formulated with regard to the 1981 Declaration can be seen as implying a legally significant weakening of Article 18 of both the Universal Declaration and the covenant, or at least denying it the character of customary international law with regard to the Muslim states. This may also involve, in some countries, the legality of steps restricting proselytism because of its clash with the prohibition of conversion. 66 Sami A. Aldeeb Abu-Sahlieh, “The Islamic Conception of Migration,” International Migration Review 30 (1996): 37. For a detailed description of the Islamic attitude toward proselytism and conversion, see Sami A. Aldeeb Abu-Sahlieh, Les Musulmans Face aux Droits de L’Homme: Religion et Droit et Politique: Etude et Documents (1994). 67 See Bat Yeor, The Decline of Eastern Christianity under Islam—From jihad to Dhimmitude (1996).

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these points; the linguistic compromise in the 1981 Declaration is a typical example of international law-making accommodation of dissenting views. The result in this particular case was a weakening of the letter of Articles 18 of the Universal Declaration and of the covenant but not a departure from their spirit and meaning as interpreted by a majority of states. For some expert observers, such a weakening implies a downward thrust in the drafting process.68 According to Donna J. Sullivan, the parameters of the right to change one’s religion or belief remain uncertain under the declaration. The phenomena of apostasy and heresy present potential conflicts between the right of individuals to believe what they choose and the right of religious groups to promulgate doctrine as a part of religious practice. Sullivan deals with the issue under the heading of coercion. The subcommission’s draft principles prohibited all coercion likely to impair a person’s freedom to maintain or to change his or her religion or belief. Sullivan asserts that, if the aim of the declaration is to be achieved, coercion should be interpreted broadly. This would mean coercion includes not only physical or moral means of compulsion but also mental or psychological means, as well as a government conditioning any benefits or services upon the renunciation or acceptance of religious beliefs. Believers should enjoy the freedom to engage in noncoercive forms of proselytizing, such as mere appeals to conscience or the display of placards or billboards, and governments should protect the right to freedom of expression. At the same time, proselytizing “may set the rights of those whose religious faith encourages or requires such activity in opposition to the rights of those targeted to be free from coercion to change their beliefs.” In situations of clear conflict, “the right to engage in coercive forms of proselytizing as an expression of religious belief must yield to the right of individuals to hold a belief of their choice without impairment.”69 Thus, bona fide proselytizing excludes coercion, intimidation, or enticement and, in Sullivan’s view, is tied up with freedom of expression. Taking into account the fact that proselytizing might bring an invasion of privacy and/or the right to be left alone on matters of religion or belief, one fundamental question

68 See Bertie Ramcharan, “Towards a Universal Standard of Religious Liberty,” in World Council of Churches, Religious Liberty (1987), 8–13. In the same publication Theo van Boven stresses that the freedom to change one’s religion or belief is no longer explicitly included in the declaration (“Religious Witness and Practice in Political and Social Life as an Element of Religious Liberty,” in WCC, Religious Liberty, 19). In a 1989 working paper van Boven refers to the consistency requirement as expressed in Article 8 of the 1981 Declaration, which excludes any interpretation restricting or derogating from rights recognized in the Universal Declaration or in the covenants. U.N. Doc. E/CN.4/Sub.2/1989/321, at 29. 69 Sullivan, “Advancing the Freedom of Religion,” 495.

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remains: to what extent should bona fide proselytizing be considered an unrestricted right? This is ultimately the crux of the conflict between proselytism and the right to preserve and protect one’s beliefs—a conflict to which the 1981 Declaration did not provide an absolutely clear answer. The Work of Special Rapporteurs U.N. special rapporteurs have been reporting on the situation concerning religious rights since the promulgation of the 1981 Declaration. All of them have given substantial attention to the issue of proselytism and the restrictions imposed on proselytism by some countries. In 1987, almost three decades after the Krishnaswami study, Elizabeth Odio Benito, special rapporteur appointed by the Subcommission on Prevention of Discrimination and Protection of Minorities, submitted a study of the current dimensions of the problems of intolerance and of discrimination on grounds of religion or belief. Odio Benito does not ascribe too much weight to the differences in the wording of the main U.N. instruments dealing with changes of religion or belief. In her view a careful examination of the texts of Article 18 of the Universal Declaration of Human Rights, Article 18 of the Covenant on Civil and Political Rights, and Article 1 of the 1981 Declaration shows that, although they are slightly varied in wording, all mean precisely the same thing: every person has the right to leave one religion or belief and to adopt another, or to remain without any at all.70 Other freedoms, such as freedom of opinion and expression and freedom of peaceful assembly and association, are intimately linked to the freedoms of thought, conscience, religion, and belief as well. The omission of the phrase “change of religion” in Article 6 of the 1981 Declaration does not alter the right itself, Odio Benito claims. The declaration encompasses the right to change one’s religion, even if it is not expressly recognized in the way it exists within the primary human rights instruments. This right “is inseparable from freedom of thought, conscience and religion.” The declaration was adopted precisely to struggle for the elimination of each and every form of intolerance . . . something which necessarily includes a struggle against attitudes, actions or laws that prevent a human being from changing his religion or belief or having none whatsoever, for attitudes, actions or laws of this kind would be intolerant and discriminatory.71

70 See U.N. Doc. E/CN.4/Sub.2/1987/26 (1986), particularly paras. 20 and 21. For the work of the special rapporteurs appointed by the Commission on Human Rights and the Subcommission on the Prevention of Discrimination and Protection of Minorities, see Bahiyyih G. Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Protection (1996), 190; Brice Dickson, “The United Nations and Freedom of Religion,” International and Comparative Law Quarterly 44 (1995):347. 71 See U.N. Doc. E/CN.4/Sub.2/1987/26 (1986), para. 201.

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Odio Benito notes that a number of states violate these freedoms. Some states officially prohibit preaching and proselytizing, teaching religion, disseminating religious materials, and other activities. In her 1987 study Odio Benito points to Eastern Europe, Albania, Afghanistan, Iran, Pakistan, and unnamed countries in the Americas, Africa, and Asia as violators of the international norms related to religious freedoms—especially by taking action against foreign missionaries. Repressive practices include imprisonment, torture, and even death sentences. Some countries prohibit conversion either by law or by their constitution; governments have arrested persons simply because they adopted a different religion.72 Twenty-six governments made information available for Odio Benito’s study. Using this information, Odio Benito studied laws prohibiting coercion impairing the freedom to choose a religion or belief. Comparing this information with the text of Article 1(2) of the 1981 Declaration, the rapporteur concluded that only four states (Cyprus, Israel, Qatar, and Spain) prohibit coercion to leave one’s religion or belief or to adopt a new one. Other constitutional or legal provisions prohibit forms of coercion likely to impair the freedom to change religion. The special rapporteur alludes to practices of specific countries: coercion to participate in, or not to participate in, ceremonies of a religion or belief not one’s own (Barbados, Germany, Jamaica, Mauritius, Morocco, Pakistan, Spain, Switzerland, and Turkey); coercion to reveal one’s religion or belief (Cyprus, Ecuador, Germany, Peru, Portugal, Spain, Turkey, and Ukraine); coercion to receive religious education in a religion other than one’s own (Barbados, Israel, Italy, Jamaica, Pakistan, Switzerland, and Trinidad and Tobago); coercion to contribute to a fund used for the purposes of a religion other than one’s own (Cyprus, Denmark, and Pakistan); and coercion to practice a particular religion or belief (Mauritius and Morocco). Odio Benito concludes that the right to change religion is not fully protected or respected. Only a few states have constitutional provisions providing full protection.73 The rights of children, however, do receive special attention. A child’s right not to be compelled to receive religious teaching against the wishes of the child’s parents or legal guardians is mentioned by twenty governments and has yielded several judicial decisions.74

72

See ibid., paras. 52–81. See ibid., paras. 108–110. 74 See, e.g., Kjeldsen, Busk Madsen & Pedersen, European Human Rights Report 1 (1976: 711 (court decision). The case dealt with objections to sex education in public schools, but similar principles would apply to state-imposed religious education. The court declared that “the state is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. . . . ” See also Angelini v. Sweden, App. No. 10491/83, Eur. Comm. H. R. Dec. & Rep. 10, 123 (1988); Article 14 of the 1989 Convention on the Rights of the Child (for the text, see Human Rights, 174). 73

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The Commission on Human Rights appointed Angelo Vidal d’Almeida Ribeiro as special rapporteur in 1986. The author of seven reports on the implementation of the 1981 Declaration,75 Ribeiro does not deal with the terminology question. Rather, he discharges his monitoring duties by highlighting difficulties many countries have faced in applying Article 1 of the 1981 Declaration. Among other cases, Ribeiro addresses the prohibition of missionary activities in China; the illegal propaganda for Jehovah’s Witnesses, considered an unlawful association in Cuba; the forced conversion of Coptic Christians into Islam in Egypt; the persecution of Jehovah’s Witnesses on grounds of proselytism in Greece; the intimidation of Christian missionaries in India; the persecution of the Baha’i religion in Iran; forced conversions and persecution of converts in Pakistan, Saudi Arabia, and Sudan; and prohibition of proselytism in Vietnam. The special rapporteur concludes that intolerance and discrimination based on religion or belief concern “the right to have the religion or belief of one’s choice, the right to . . . change one’s religion or belief, . . . the right to teach a religion or belief in places suitable for those purposes, . . . the rights of parents to bring up children in accordance with the religion or belief of their choice. . . . ”76 In contrast with the situation prevailing in the West, in most countries where Islam is the prevalent or official religion and where the shari’a is in force, “proselytism and apostasy were particularly sensitive issues.”77 Following the resignation of Angelo Vidal d’Almeida Ribeiro, the chairman of the Commission on Human Rights appointed Abdelfattah Amor as special rapporteur. Amor also deals with the issues of conversion and proselytism in his reports since 1994.78 He emphasizes that the right to change one’s religion is recognized within the framework of internationally established standards in the field of human rights, including the 1981 Declaration. The right is also recognized by the interpretation of the Human Rights Committee, as expressed in General Comment 22 of 1993, summarized earlier. The rapporteur also stresses that Article 18(2) of the ICCPR bars coercion that would impair the right to have or adopt a religion or belief. Thus, Article 18(2) bans the threat of physical force or penal sanctions as a means to compel believers or nonbelievers to adhere to religious beliefs, to recant their 75 U.N. Docs. E/CN.4/1987/35,1988/45 and Add.l and Corr. 1, 1989/44,1990/46, 1991/56, 1992/52, and 1993/62 and Add.l. 76 U.N. Doc. E/CN.4/1992/52, at 173. 77 See ibid., 177. 78 Professor Amor submitted 17 general reports and a number of reports on in situ visits. His last report is E/CN.4/2004/63. His successor as Special Rapporteur is Ms. Asma Jahangir. In her first report, E/CN.4/2005/61, she refers to the issue of conversion and, in particular, forced conversion, a practice that she considers unacceptable and “one of the most serious forms of violation of the right to freedom of religion or belief.”

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religion or belief, or to convert.79 He specifically emphasizes that a Muslim’s conversion to another religion should in no way give rise to pressures, bans, or restrictions on the converts, or on ministers of religion.80 During a visit to the Islamic Republic of Iran in December 1995 government representatives acknowledged to Amor that Article 18 of the Universal Declaration expressly recognized conversion, that the Islamic countries had expressed reservations about it, and that Article 18 of the covenant did not refer to conversion.81 Amor notes that the proportion of Muslim converts into Protestant communities is increasing but in a clandestine way. The authorities in Iran prohibit all forms of proselytism and conversion of a Muslim to another religion, and this explains the limitations placed on the religious activities of the Protestant churches.82 Amor notes that prohibitions against proselytizing are among the main violations of Article 1 of the 1981 Declaration. Forced conversions are another major violation. These have frequently occurred in countries such as Indonesia, Myanmar, Sudan, the Maldives, Malaysia, Egypt, Morocco, Nepal, and Greece. In Sudan a new law restricting missionary societies was repealed after a meeting between the pope and the president.83 In an addendum concerning a visit to Pakistan, the special rapporteur states that indications exist that the subordinate Pakistani judiciary tends to hold that conversion from Islam to another faith is an offense, even though Pakistani authorities assert that conversion and proselytism are not persecuted.84 In his detailed report for 1994 the rapporteur records some relevant findings: non-Muslims are allegedly forbidden to proselytize in Afghanistan; in Bhutan, the local Hindu population resents the continuous attempts to convert them to Christianity and has taken steps to ban missionary activities; in Egypt, the government invoked articles of the Penal Code to punish the conversion of Muslims and expelled foreigners for proselytizing; in India, the laws of some provinces discourage proselytism; in Malaysia, the state of Johor adopted a law in 1991 that controls and restricts the propagation of nonIslamic religions; and in Mexico, reprisals have been adopted against a few hundred people for abandoning the Chamula religion to adopt Christianity.85 The report submitted by Rapporteur Amor on December 30, 1996, refers especially to some urgent appeals sent to Iran, Egypt, and the United Arab

79 80 81 82 83 84 85

U.N. Doc. E/CN.4/1996/95/Add.2, paras. 92 and 116. See ibid., para. 116. Ibid., paras. 21 and 22. U.N. Doc. E/CN.4/1996/95/Add.l, paras. 31 and 32. See U.N. Doc.E/CN.4/1996/95. See ibid., Add.1. U.N. Doc. E/CN.4/1995/91.

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Emirates concerning conversion or apostasy issues.86 The rapporteur analyzes the different categories of religious freedom violations and points out that the freedom to change one’s religion is being violated in several countries. Violations of the freedom to manifest one’s religion or belief often involve a ban on proselytizing, including prison sentences. In Armenia, Bhutan, Brunei Darussalam, and the Maldives, the ban on proselytizing effectively applies only to certain religious communities. The Lao People’s Democratic Republic, Morocco, Mexico, and Greece are singled out because of their limitations on proselytizing. Amor reemphasizes the right to change religion as a legally essential aspect of religious freedom. Dealing with the distinction between a religion and a sect, he concludes that “it is not the business of the State or any other group or community to act as the guardian of people’s consciences and encourage, impose or censure any religious belief or conviction.”87 In his report submitted on January 22, 1998, Special Rapporteur Amor concentrates his analysis on the sphere of tolerance, in the light of replies to a questionnaire received from seventy-seven states. He deals with the issue of religious instruction and surveys the different categories of violations of religious rights, including the freedom to change one’s religion and the question of proselytism. The special rapporteur suggests changing his official title to Special Rapporteur on Freedom of Religion and Belief, so as to encompass freedom of belief (agnosticism, freethinking, atheism, and rationalism) and evade the negative connotations of intolerance and discrimination. He also recommends that he be provided with the resources to undertake a study on proselytism, freedom of religion, and poverty.88 Amor refers to the issue of sects and new religious movements, complicated by the fact that human rights instruments do not define religion and do not mention the new phenomena.89 Other Global Instruments A few other international global instruments deal with proselytism and change of religion indirectly, and these may be useful to mention. Minorities The issue of minorities has been dealt with in former chapters. By its nature the 1992 United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious, and Linguistic Minorities must be particularly 86 87 88 89

U.N. Doc. E/CN.4/1997/91 and Add.l. Ibid., 19. See E/CN.4/1998/6, p. 27. See ibid., 28.

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mentioned. Religious and ethno-religious groups may be seriously affected by the attitude of the majority in the state and by national legislation concerning religious interaction. Inspired by Article 27 of the International Covenant on Civil and Political Rights, the 1992 declaration reflects the reluctance of the organized international community to recognize the role of group rights. Nevertheless, it does acknowledge some rights and needs of minorities— including the protection of their existence and identity. This protection extends to religious minorities. The declaration even encourages conditions for the promotion of group religious identity. Article 2(5) of the declaration is of special relevance. It recognizes the right of persons belonging to, inter alia, religious minorities to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with other persons belonging to other minorities, as well as contacts across frontiers with citizens of other states to whom they are related by national or ethnic, religious or linguistic ties.

It may be an overstatement to interpret this provision as authorizing contacts intended to proselytize or teach one’s religion to persons belonging to other minorities. However, Article 8(2) does state that the exercise of the rights proclaimed in the declaration shall not prejudice the enjoyment of universally recognized human rights and fundamental freedoms. Beyond that, however, the declaration contains no reference to proselytism and conversion. Migrant Workers The United Nations adopted the International Convention on the Protection of All Migrant Workers and Members of Their Families in 1990.90 A comprehensive and detailed text, the convention follows the wording of the ICCPR and deals specifically with the right to change one’s religion. Article 12 of the convention reads: 1. Migrant workers and members of their families 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 their choice and freedom either individually or in community with others and in public or private to manifest their religion or belief in worship, observance, practice and teaching. 2. Migrant workers and members of their families shall not be subject to coercion that would impair their freedom to have or to adopt a religion or belief of their choice. Article 12 also addresses limitations on the freedom of religion, stating in paragraph 3 that the freedom may be subject only to such limitations as are 90

For the text, see Human Rights, 550.

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prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others, and the rights of parents to ensure the religious and moral education of their children in conformity with their own convictions. Also relevant is Article 13(2), which proclaims the right to impart information and ideas, regardless of frontiers. Indigenous Populations The United Nations’ designation of 1993 as the International Year for the World’s Indigenous People prompted the U.N. working group on indigenous populations to initiate a study on the hundreds of treaties, agreements, and other arrangements between governments and indigenous groups. Indigenous groups are closely related to some of the issues discussed here. The problems concerning cultural relativism and the preservation of traditional religions are obviously also implicated. In a document prepared by the working group, the rights of indigenous populations “to manifest, teach, practice and observe their own religious traditions and ceremonies, and to maintain, protect, and have access to (sacred) sites for these purposes,” and their right “to preserve their cultural identity and traditions” are recognized.91 Also important in this respect is the 1989 International Labor Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries, which amended the 1957 Indigenous and Tribal Populations Convention.92 The 1989 convention does not contain specific provisions concerning proselytism or conversion, but it does address these issues indirectly. The preamble refers to the aspirations of the indigenous peoples to exercise control over their “ways of life” and to “maintain and develop their identities, languages and religions.” Article 5 ensures recognition of the spiritual values and practices of the indigenous peoples, while Article 7 proclaims that the peoples concerned have the right to decide “their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual wellbeing. . . . ” Article 8 provides that due regard shall be had for the customs or customary law of the peoples concerned, “except where these are incompatible with internationally recognized human rights.” Rights of the Child When the 1981 Declaration was discussed, one of the major difficulties related to the article on rights of children. Religious issues are closely connected with educational rights, and the issue of change of religion is no exception. Differences of view arose about several topics: parental rights; conflicts 91 92

U.N. Doc. E/CN.4/Sub.2/1985/22, Annex II. For the text, see Human Rights, 471.

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between parents regarding the religion of the child; the age a child must reach before he or she is capable of making autonomous decisions concerning religion or belief; and how to balance the roles of the state, the parents, and the generally accepted principle of the best interest of the child. The main international text on the subject is the 1989 Convention on the Rights of the Child. The convention was unanimously adopted and followed in the steps of the 1959 United Nations Declaration on the Rights of the Child.93 Article 14 of the convention deals with religion; it proclaims that states shall respect the right of the child to freedom of thought, conscience, and religion, as well as the rights and duties of the parents or legal guardians to “provide direction” to the child in the exercise of his or her rights. Attempts to use the wording of the International Covenant on Civil and Political Rights in Article 14 engendered opposition. Muslim representatives opposed such attempts, invoking the Qur’an and various pieces of national legislation. They asserted that a child is not able to choose a religion or belief or to change one. The Maldives even attached a reservation stipulating that “all Maldivians should be Muslims.” Iran stated that it would enter reservations to any provision that contradicted traditional Islamic rules. Other Islamic states submitted similar reservations. Western states generally supported the classic line of human rights law, though some Catholic states also expressed reservations. The United States ultimately failed in its attempts to include a guarantee of the freedom to change religion. Many see Article 14 as a step back when compared to the standards contained in the 1948 Universal Declaration, the 1966 Covenant, and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In the words of Bahiyyih G. Tahzib, Article 14 is “less broad in its scope of protection.”94 However, the same author acknowledges that the convention contains a saving clause: Article 43 preserves the application of international law provisions more favorable to the rights of the child. Difficulties also arose in connection with Article 20, which concerns adoption. Further, no solution was provided for problems caused by clashes between the parents as to the religion of the child. The major issue of conflict between the state and the parents in deciding what kind of education the child will receive in matters of religion has arisen in several judicial decisions.95

93 For the texts of the declaration and the convention, see Human Rights, 171, 174. On the subject, see generally Gcraldine van Bueren, The International Law on the Rights of the Child (1995) and Lawrence J. LeBlanc, The Convention on the Rights of the Child (1995). 94 Tahzib, Freedom of Religion or Belief, 101. 95 See Kjeldsen, Busk Madsen & Pedersen. See also Hoffman v. Austria, 255C Eur. Ct. H. R. (ser. A) (1993). The issue was a complaint by a mother, a Jehovah’s Witness, that she had been denied the custody of her children because of her religious convictions.

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Discrimination in Education The Convention against Discrimination in Education was adopted in 1960 by the General Conference of UNESCO.96 It does not refer specifically to change of religion. Even so, the interaction between religion and education is well known. Frequently, educational policies of some states cause resentment among religious groups that believe such policies involve attempts to induce pupils to change their religious convictions. More than once opponents have claimed that proselytism is an indirect intention of some religious education, particularly when such education is opposed to the desires of parents or legal guardians. This issue was mentioned above in connection with the article addressing the rights of the child in the 1981 Declaration. Article 5,1 (b) of the UNESCO convention reaffirms the right of parents or legal guardians to ensure “the religious and moral education of the children in conformity with their own convictions, and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their conviction.” Judicial or quasi-judicial decisions at the European level have dealt with religious instruction allegedly involving indoctrination or proselytism. Draft Convention on Religious Intolerance and Discrimination The treatment of change of religion in the draft Convention on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief merits attention in this section on global international instruments. The draft convention was already penned by 1965. We have already discussed in chapter 1 the rather dim prospects of the renewal of the consideration of such a convention. According to the draft convention, states must undertake to ensure the right to freedoms of thought, conscience, religion, and belief. Article III 1 (a) of the draft provides that this right shall include freedom to adhere or not to adhere to any religion or belief and to change his religion or belief in accordance with the dictates of his conscience without being subjected either to any of the limitations referred to in Article XII or to any coercion likely to impair his freedom of choice or decision in the matter, providing that this paragraph should not be interpreted as extending to manifestations of religion or belief. The limitations listed in draft Article XII are the usual ones. Article III l(b) ensures to everyone “the freedom to teach, to disseminate and to learn his religion or belief and its sacred languages or traditions, to write, print and publish religious books and texts. . . .” The differences in the language of the draft

96

For the text, see Human Rights, 101.

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as compared to the already adopted instruments are obviously due to the time when the draft was prepared.97 Regional Instruments The provisions on the issue of proselytism incorporated into regional or sectoria1 human rights instruments reflect the approach of the respective groups of states involved. European Convention Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), ratified by all member states of the Council of Europe, provides that “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief. . . . ” The convention follows the pattern of the Universal Declaration, thus differing from the wording of the International Covenant on Civil and Political Rights and the 1981 Declaration. The 1990 Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe (CSCE) follows a similar approach, carrying an almost identical wording in its Article 9(4). The Vienna Concluding Document of 1989 does not contain specific references to change of religion, though Article 16 does refer to religious education, training of personnel, and other rights related to the issue under consideration. American Convention on Human Rights The American Convention on Human Rights, adopted in 1969, deals with freedom of conscience and religion (Article 12) separately from freedom of thought and expression (Article 13). Article 12(1) says that “everyone has the right to freedom of conscience and religion: This right includes freedom to maintain or to change one’s religion or beliefs. . . .” Article 12(2) adds that “[n]o one shall be subject to restrictions that might impair the freedom to maintain or to change his religion or beliefs.” Article 13(1) includes the freedom to “impart information and ideas of all kinds . . . through [any] medium of one’s choice as part of the right to freedom of thought and expression.” The Inter-American Court of Human Rights gave this article a broad interpretation, stressing that the expression and dissemination of ideas are indivisible concepts.98 97

For the draft as amended, see U.N. Doc. A/7930 (1970). See Inter-American Commission on Human Rights, Case 9178 (Stephen Schmidt) (Costa Rica, 1984) (1985), Human Rights Law Journal 6 (1985): 211. 98

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Cairo Declaration on Human Rights For Islamic states, members of the Islamic Conference, the Cairo Declaration on Human Rights (1990) is considered an authoritative document reflecting the Islamic view on international human rights. On the issue of proselytism, Article 10 of the declaration prohibits “any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” Article 22 allows freedom of expression in a manner as would not be contrary to the principles of the shari’a. OSCE Human Dimension Seminar The Organization for Security and Cooperation in Europe (OSCE) has devoted considerable attention to the issues of proselytism and change of religion, partly because of situations prevailing in Eastern Europe. The OSCE Office for Democratic Institutions and Human Rights convened a Human Dimension Seminar on constitutional, legal, and administrative aspects of the freedom of religion on April 16–19,1996. The seminar covered such themes as state, church, religious communities, and organization; law, church, and religious communities; and state and individual believer. Representatives of forty-seven participating states and one nonparticipating state, as well as of several international organizations, attended the seminar, which was held in Warsaw. Fifty-five nongovernmental organizations were also represented. The issues of change of religion and proselytism came up repeatedly in three discussion groups. This likely reflected the “deep concern” caused by the “intolerance exhibited by some religious groups in some OSCE states,” including the prohibition of proselytism in some countries.99 The participants recommended that the office conduct a comprehensive survey of the relevant constitutional, legal, and administrative provisions relevant to freedom of religion in OSCE states and also organize a future seminar on the topic of tolerance and proselytism. The consolidated summary of the seminar stresses that the participants reached broad agreement on the fact that freedom of conscience and belief is an absolute right under the OSCE commitments. Further, they agreed that freedom of conscience and belief incorporates the right to believe and to change one’s faith. It was acknowledged that “a tension exists between traditional religions in their perceived role in maintaining historical values and the rights of new indigenous religious groups.” Participants stressed the need to achieve a balance between individual rights and cultural and historical interests.

99 See OSCE, Office for Democratic Institutions and Human Rights, Human Dimensions Seminar, Constitutional, Legal, and Administrative Aspects of the Freedom of Religion, Consolidated Summary, Warsaw (April 16–19, 1996), 6.

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Freedom of religion in education also received attention at the seminar. In many of the participating OSCE countries the tenets of the majority religion or religions are taught in the public schools. Recognition of this fact led to a discussion regarding proselytism and the wearing of religious symbols in public schools.100 One of the groups noted that most religions engage in persuasion at some level, including promises of spiritual or material benefits—an uncharted area of law that remains unclear in many of the human rights instruments.101 Framework Convention on Minorities The Council of Europe Committee of Ministers adopted the Framework Convention on November 10, 1994. The Framework Convention for the Protection of National Minorities does not specifically mention the issues of change of religion and proselytism, but several of its articles are clearly relevant. To be seen accurately, the Framework Convention must be viewed in the context of connected instruments, such as the European Convention on Human Rights and the OSCE documents. The preamble of the Framework Convention refers to the need to respect the religious identity of each person belonging to a national minority.102 A pluralist and genuinely democratic society “should create appropriate conditions enabling [each person] to express, preserve and develop this identity.” Urder Article 5(1) religion is seen as an essential element of the identity of national minorities. Article 6(1) states that societies should encourage a “spirit of tolerance and intercultural dialogue, irrespective of religious identity or other factors.” Under Article 7, the freedoms of peaceful assembly, association, expression, thought, conscience, and religion should be respected. Under Article 8, every member of a minority has the right to manifest his or her religion or belief and to establish religious institutions, organizations, and associations. Article 12 dictates that states shall foster knowledge of, inter alia, the religion of the minorities as well as of the majority. Under Article 13(1), persons belonging to a national minority have the right to set up and to manage their own private educational establishments. Article 17, which draws upon provisions of the 1990 Document of the Copenhagen Meeting of the CSCE Conference on the Human Dimension, requires free and peaceful contacts across frontiers with persons staying in other states with whom they share, inter alia, a religious identity. 100

Ibid., 23–24. Ibid., 25. 102 The text does not define national minorities. The phrase is a complicated notion that, in the author’s opinion, is frequently used incorrectly. 101

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Case Law International case law on religious matters is scarce. The European Court of Human Rights has dealt with religion and education in a few cases. In Hoffman v. Austria the court reviewed an Austrian Supreme Court case. The Austrian court had held that the father should receive parental rights over his children because the applicant-mother (his ex-wife) was raising the children according to the principles of Jehovah’s Witnesses. Overturning lower rulings, the highest Austrian tribunal held that its decision was required by Austrian law, which prohibited changing a child’s religion without the consent of both parents. The European Court found the Austrian decision to be in violation of the 1950 European Convention. Specifically, it violated Article 14, because it involved discrimination on the basis of religion in the exercise of Article 8. The European Court decided that the interests of the child are paramount. Using this benchmark, the court reasoned that the applicant’s views on blood transfusions posed a risk to the children, and the court thus awarded custody to the father.103 In another relevant decision, Otto Preminger Institute v. Austria, the European Court stressed the need for toleration when others propagate doctrines hostile to one’s own faith.104 The court took into consideration the religious feelings of the affected population and rejected an Austrian regional court’s seizure of a film. Other cases, such as Angelini v. Sweden, Hartikainen v. Finland, and Kjeldsen et al. v. Denmark, have already been mentioned earlier in this chapter. The Kokkinakis Case The Kokkinakis case is the first decision of an international tribunal on the issue of proselytism.105 The division of the nine-judge chamber and the criticism by legal commentators reflect and underscore the controversial nature of the case.106 The European Commission on Human Rights concluded unanimously that Kokkinakis involved a violation of Article 9 of the European 103 See Francois Rigaux, “L’incrimination du proselytisme face a la liberte d’expression,” Revue Trimestrielle des Droits de I’Homme 17 (1994): 144–150, calling attention to the hostility shown by governments and courts toward Jehovah’s Witnesses, primarily because they present a more radical version of the Christian faith. See also Manoussakis and Others v. Greece, 59/1995/565/651 (September 26, 1996). 104 295 Eur. Ct. H.R. (ser. A) (1994). 105 Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) (1993) 17 Eur. H.R. Rep., Part 5 (1994), 397–440. 106 See T. Jeremy Gunn, “Adjudicating Rights of Conscience under the European Convention on Human Rights,” in van der Vyver and Witte, Religious Human Rights in Global Perspective: Legal Perspectives, 305–330; Alain Garay, “Liberte religieuse et proselytisme: l’experience curopeenne,” Revue Trimestrielle des Droits de I’Homme 17 (1994): 7; Rigaux, “L’incrimination du proselytisme,” 137.

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Convention. On May 25, 1993, the European Court on Human Rights followed this opinion. The court decided by a 6 to 3 vote that Article 9 had been violated; it decided by 8 votes to 1 that Article 7 of the Convention had not been breached; and it unanimously found it unnecessary to examine the case under Article 10 or under Article 14 taken together with Article 9. The court required Greece, the respondent state, to pay the applicant, Mr. Kokkinakis, two monetary judgments: one amount to compensate his nonpecuniary damage, and a second, larger amount for costs and expenses. Minos Kokkinakis, an elderly Greek businessman, was born in 1919 into an Orthodox family in Crete. He became a Jehovah’s Witness in 1936. Since then, authorities had arrested him more than sixty times for proselytism. He has been interned and imprisoned on several occasions and was the first member of the Jehovah’s Witnesses to be convicted under Greece’s respective constitutional and legal provisions against proselytism. In 1986 Mr. Kokkinakis and his wife visited the home of a Mrs. Kyriakaki, in Sitia, Crete, and initiated a discussion with her. Mr. Kyriakaki, the cantor of a local Orthodox church, informed the police, who subsequently arrested the couple. Mr. and Mrs. Kokkinakis were later prosecuted under Law 1363/1938, which makes proselytism an offense, and were tried at the Lasithi Criminal Court. On March 20, 1986, the court found both Mr. and Mrs. Kokkinakis guilty of proselytism and sentenced each to four months in prison, commutable into a pecuniary penalty. The court also ordered the confiscation and destruction of the booklets they had tried to sell. Mr. and Mrs. Kokkinakis appealed to the Crete Court of Appeal, which quashed Mrs. Kokkinakis’s conviction. The court upheld her husband’s conviction but reduced it to three months in prison, also commutable. Mr. Kokkinakis appealed on points of law, claiming that the 1938 law contravened the Greek Constitution. On April 22, 1988, the Court of Cassation rejected the plea of unconstitutionality, as it had always done in the past. On August 22,1988, Mr. Kokkinakis applied to the European Commission on Human Rights. The commission declared the application partially admissible and ultimately decided that there had been a violation of Article 9. When the case came to the European Court, the court analyzed the general principles involved as enshrined in Article 9. Article 9 sees freedom of thought, conscience, and religion as one of the foundations of a democratic society and one of the most vital elements constituting the identity of believers and their conception of life. It is also “a precious asset for atheists, agnostics, skeptics and the unconcerned.” It also includes, in principle, the right to try to convince one’s neighbor—through teaching, for example. The European Court found that the sentences of the Greek courts amounted to an interference with the right and freedom to manifest one’s religion or belief. Such an interference was contrary to Article 9, unless it was: (1) “prescribed by

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law”; (2) directed at one or more of the legitimate aims in Article 9(2); and (3) “necessary in a democratic society” for achieving those aims. The court analyzed each side’s argument, noting that the wording of many of the statutes is rather vague—including criminal law provisions on proselytism. The court also declared that the constitutionality of a law should be interpreted by its national authorities. Considering the circumstances of the case and the terms of the judicial decisions, the court held that the impugned measure was in pursuit of a legitimate aim under Article 9(2)—the protection of the rights and freedoms of others. Mr. Kokkinakis contended that, in a democratic society, it is not necessary to limit a person’s right to speak to a neighbor about religion, that such a conversation cannot be made a criminal offense, and that he had been convicted not for something he had done but rather for what he was. In examining these arguments the court referred to the government’s allegations. These allegations included Mr. Kokkinakis’s insistence on entering the Kyriakaki home under false pretenses and his skillful analysis of the religious texts calculated to delude the complainant, who did not possess an adequate grounding in doctrine. The court recognized that individual states retain a margin of appreciation. However, the court held that this margin is subject to European supervision; this holds true for both legislation and the decisions applying the legislation, and includes the decisions of an independent court. The court must look at the impugned judicial decisions against the background of the case as a whole. Here, the European Court made a controversial distinction between bearing Christian witness and improper proselytism. The former corresponds to true evangelism. . . . The latter represents a corruption or deformation of it. It may . . . take the form of activities offering material or social advantages with a view to gaining new members of a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing. . . . 107 The court’s distinction, based on a 1956 document of the World Council of Churches, has received criticism.108 The court noted that the Greek tribunals did not sufficiently specify in what way the accused had utilized “improper means,” nor did they show that the applicant’s conviction was justified by a “pressing social need.” “The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued or, consequently, necessary in a democratic society . . . for the protection of the rights and freedoms of others.” Judge Pettiti issued a partly concurring opinion.109 In his view the current Greek criminal legislation on proselytism was in itself contrary to Article 9 of 107 108 109

Kokkinakis, 17 Eur. H.R. Rep., 422. See, e.g., Rigaux, “L’incrimination du proselytisme,” 146–147. Kokkinakis, 17 Eur. H.R. Rep., 425.

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the European Convention. Kokkinakis was the first real case concerning freedom of religion to come before the European Court. Freedom of religion and conscience entails “accepting proselytism even where it is ‘not respectable.’ . . . The only limits on the exercise of this right are those dictated by respect for the rights of others where there is an attempt to coerce the person into consenting or to use manipulative techniques.”110 States may legislate against “brainwashing, breaches of labor law, endangering of public health and incitement to immorality . . . found in the practices of certain pseudo-religious groups,” in order to avoid abuses and deviation leading to attempts at brainwashing. Such activities may be alleviated by ordinary civil and criminal law. However, states may not regulate legitimate proselytism under the guise of eliminating the above activities. Noncriminal proselytism remains the mere expression of freedom of religion.111 Judge Pettiti dissented from the majority’s view that the applicant’s conviction was not justified under the circumstances. In his opinion the majority’s wording leaves too much room for a repressive interpretation by the Greek courts in the future. He opined that permissible limits of proselytism can be defined. Examples include cases of coercion, abuse of one’s rights in a way that infringes the rights of others, and manipulation by methods that lead to a violation of conscience.112 Judge Valtikos dissented radically from the court’s decision. He accepted the definition of proselytism provided by Greek criminal law, which defines proselytism as any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety. He then added his own definition: “the rape of the belief of others.”113 Judges Foighel and Loizou also dissented, finding no violation of Article 9(1). They stated that those engaged in teaching their religion have a duty to respect the religion of others. Religious tolerance implies respect for the religious beliefs of others. “The persistent efforts of some fanatics to convert others to their own beliefs by using unacceptable psychological techniques on people, which amount in effect to coercion, do not come within the meaning of the term teach.”114

110 111 112 113 114

Ibid., 426. Ibid., 427. Ibid., 428. Ibid., 429. Ibid., 439.

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Judge Martens dissented in part. He, too, found a breach of Article 9, but for reasons different from those relied upon by the court. Article 7(1) of the convention had also been violated, in his view. Martens did not believe that Article 9 allows member states to make it a criminal offense to attempt to induce a person to change his or her religion. The freedoms of thought, conscience, and religion enshrined in Article 9(1) are absolute and involve the human rights principles of respecting human dignity and human freedom. It is not within the province of the state to interfere in the conflict between proselytizer and proselytized, except in some very special situations in which the state has a particular duty of care. This holds true even when one particular religion enjoys a dominant position in a state. Martens added that the “rising tide” of religious intolerance makes it imperative to keep the state’s powers in this field within “the strictest possible boundaries.” Unfortunately, the court attempted to settle those boundaries by means of the elusive notion of improper proselytism, which the court left undefined. Except when an ordinary crime is involved, civil law, not criminal law, should prescribe the legal remedies for proselytism.115 The Kokkinakis decision is of great importance because it was the first full pronouncement on proselytism by an international court. Since Article 9 of the European Convention follows the wording of Articles 18 of the Universal Declaration and of the International Covenant on Civil and Political Rights, the case acquires a universal dimension. Prior to Kokkinakis the European Court had made passing reference to the issue of misplaced proselytism but had not addressed the topic directly.116 The European Commission on Human Rights dealt with a number of cases involving Article 9, but this time the issue of proselytism as a whole came before the court. Article 9 was dealt with (but not applied) in only one of the cases considered admissible by the commission prior to Kokkinakis.117 The court’s decision engendered much criticism. However, this was foreseeable, given the varying points of view in the opinion. T. Jeremy Gunn observes that the court was moving toward a predetermined result from the very beginning, and that the court did not examine carefully the arguments before it. The court “made no effort to understand or interpret the scope of the fundamental right to manifest a belief,” and was “satisfied that several earlier decisions from Greek courts had sufficiently defined the offense of proselytism.”118 Gunn criticizes the court for ignoring the vagueness problem, for finding that the Greek government had a legitimate aim when restricting manifestations of

115 116 117 118

Ibid., 432–439. See, e.g., Kjeldsen, 1 Eur. H.R. Rep. 711. Darby v. Sweden, 187 Eur. Ct. H.R. (ser. A) (1990). Gunn, “Adjudicating Rights of Conscience,” 323ff.

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belief, and for focusing exclusively on Mr. Kokkinakis’s specific conviction rather than considering the anti-proselytism statute as a whole. The court “refused to criticize the law that had been repeatedly used to incarcerate minority believers.” The decision, therefore, exemplifies the European Court’s failure “to take rights of conscience seriously” and to require governments to impose less restrictive burdens on manifestations of freedom of religion and conscience. It also shows a bias against nontraditional, nonmainstream religions. Gunn emphasizes the court’s bias against non-Christian religions. He also describes Judge Valtikos’s dissenting opinion as vituperative—“an opinion that would be unimaginable by a judge in the United States in the 1990s.”119 Rigaux also attacked the dissenting judge’s language, arguing that it was out of place in a decision that should respect the rule of religious pluralism and the equality between different forms of beliefs.120 In his view the court had a duty to verify the constitutionality of the particular legislation and to determine when the incrimination of proselytism violates freedom of expression in religious matters. Garay reviewed the extent to which European national constitutions and legislation generally protect the freedom of religious expression; Greece is an exception. He points out that religious minorities do not generally suffer in Europe due to a refusal to recognize their spiritual identity; they suffer because society is organized in a way that reflects the dominating religious cultures. In this way the neutrality of the state becomes a myth. Garay referred to the dangers involved in radical forms of proselytism that may, in some cases, become a threat to human rights. He also elaborated on possible abuses that may emanate from monopolistic situations in public education and from the intensive, exclusive use of the primary means of communication by the majority religion for religious purposes.121 In conclusion, in spite of the weaknesses pointed out, Kokkinakis is important because of its scope and the opportunity it afforded the court to deal with the issue of proselytism. The diverse views of the members of the court reflect the difficulties involved. The Larissis Case The Case of Larissis and Others v. Greece provided the European Court of Human Rights with an opportunity to consider the legitimacy of proselytizing persons under military duty, namely, what has been described as a captive audience.122 119

Ibid., 328. Rigaux, “L’incrimination du proselytisme.” 121 Garay, “Liberte religieuse et proselytisme,” 20. Garay deals particularly with the situation regarding freedom of religion and conscience in France. Three and a half years after Garay’s comments, a decision of a Lyon court to recognize the right of Scientology to define itself as a religion engendered criticism in France and elsewhere. 122 See, on this case, the press release issued by the Registrar of the Court, No. 126, February 24, 1998. 120

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This is an important aspect that did not come up in the Kokkinakis case. In the judgment, delivered at Strasbourg on February 24,1998, the court held that there had been no violation of Article 7 of the European Convention, that there had been no violation of Article 9, in respect of measures taken against the applicants for proselytizing airmen, and that there had been a violation of Article 9 in respect of measures taken against them for proselytizing civilians. The applicants were awarded nonpecuniary damages and legal costs and expenses. The three applicants were Greek citizens. At all material times they were officers in the Greek Air Force and followers of the Pentecostal Church. They were accused of approaching, during the years 1986 to 1989, several airmen serving under them, all of them Orthodox Christians, trying to convey to them the teachings of the Pentecostal Church. Two of the three applicants were also accused of attempting to convert a number of civilians. They were charged with offenses of proselytism under section 4 of Law No. 1363/1938.123 In 1992 the applicants stood trial before the Permanent Air Force Court of Athens. The claim that section 4 was unconstitutional was dismissed, and the applicants were convicted of proselytism against airmen and civilians. They were sentenced to various terms of imprisonment, not to be enforced provided that they did not commit new offenses in the following three years. The applicants appealed to the Court-Martial Appeal Court, which upheld the judgment but reduced the sentences. An appeal to the Court of Cassation on points of law was dismissed in 1993. The court did not find any contravention of the Greek Constitution or of Article 9 of the European Convention on Human Rights. In 1994 the applicants started proceedings before the European Commission. They were declared admissible in November 1995, there was no friendly settlement, and the commission adopted, on September 12, 1996, a report establishing the facts and expressing its opinion. The commission declared that Article 9 of the convention had been violated insofar as two of the applicants were convicted for the proselytism of civilians. There had been no violation of Article 9 insofar as the applicants were convicted for the proselytism of airmen. The commission also decided, by 28 votes to 1, that there had been no violation of Article 7, and, unanimously, that no separate issue arose under Article 10 or under Article 14 taken in conjunction with Article 9. The court took up the case on October 28,1996. The court referred to the Kokkinakis case and did not see any difference with regard to its interpretation of the Greek law in the 1993 case. There was therefore no violation of Article 7.124

123 124

See, the definition of proselytism in the Kokkinakis case. Paragraphs 32–35 of the judgment and point 1 of the operative provisions.

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The measures in question were prescribed by law and had the legitimate aim of protecting the rights and freedoms of others. The court emphasized that religious freedom implied freedom to manifest one’s religion, including the right to try to convince one’s neighbor. Article 9 did not, however, protect improper proselytism, such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a church. Since different factors came into the balance in relation to the proselytizing of the airmen and that of the civilians, the two matters had to be assessed separately. States might, in certain circumstances, be justified in taking special measures to protect subordinate members of the armed forces from harassment or abuse of power. Subordinates could find it difficult to rebuff the approaches of an individual of superior rank or to withdraw from a conversion initiated by him. The court found that the three airmen with whom the applicants had discussed religion appeared to have felt themselves constrained and subject to a certain degree of pressure owing to the applicants’ status as officers. The measures taken against the applicants were not particularly severe and were not disproportionate. There had not been therefore a violation of Article 9 in relation to the proselytizing of the airmen. The case with the civilians came out differently. They were not under constraints of the same kind as the airmen, and they did not require special protection. The court considered that the applicants did not act improperly toward the civilians and that the measures taken against them in this respect were unjustified and amounted to a violation of Article 9.125 The court decided that no separate issues arose under Article 10 or under Article 14 and 9 taken together.126 The court awarded, by way of compensation for nonpecuniary damage, GRD 500,000 (US$1,556) to each of the two applicants in respect of whom it had found a violation of Article 9, as well as legal costs and expenses. Conclusions This present chapter deals with proselytism and its limits, and the right to change one’s religion within the framework of modern international human rights law as developed in the United Nations era. The following conclusions may be deduced. First, the right to proselytize and try to convince people to adopt a specific religion, on the one hand, and the right of a person to abandon and/or change 125

Paragraphs 36–61 of the judgment and points 2–4 of the operative provisions. Paragraph 64 and paragraphs 65–69 of the judgment and points 5 and 6–7 of the operative provisions, respectively. 126

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his or her religion, on the other, are closely connected. These are not absolute rights, and some societies have placed restrictions on both of them. Proselytism is related to the freedoms of expression, association, scientific research and work, and teaching; change of religion is related to the right to opt-out of organized religious frameworks, congregations, or churches—a matter that is regulated in some societies. Where religious frameworks are regulated by law, the right to join an organized religion may also require some formalities. Complicated situations exist in countries where family law is under the influence of religion. Second, to the extent that the freedoms of thought, conscience, and religion belong to the strict internal forum, they cannot be interfered with except by applying techniques that only totalitarian states have the power to impose. It is the right to manifest religious views, expressed through proselytizing activities or through formal steps to change one’s religious framework, that may require regulation and protection. Third, in a democratic society people should be free to disseminate their religious views. They should not be silenced simply because some people prefer not to hear those views. There is, however, a right to privacy, and uninvited speech should not necessarily prevail over this right. Fourth, this is particularly true when proselytism is conducted in places where people are present by force of law and constitute a captive audience: classrooms, military installations, prisons, hospitals, and the like. Exposing people in captive audiences to undesired or uninvited proselytism may be considered a violation of their rights and a form of coercion. The Larissis case is relevant in this respect. Fifth, proselytism involving material enticement—money, gifts, or privileges— should be considered a form of coercion and, thus, may be limited by law. Such material enticements exceed the area of freedom of speech and expression. However, the borderline cases are not easy to judge. Sixth, one of the limits of the right to proselytism is the protection of communal or collective identities. Minority rights are relevant to this concept. The international community has been reluctant to abandon the individualistic approach followed since the establishment of the United Nations. A change in this approach seems necessary since group rights deserve to be protected. Seventh, religious rights and education are closely connected. Religious education is therefore a difficult area requiring careful treatment. State education may include religious teachings, but within certain limits. When the teaching becomes proselytism and affects children whose parents or legal guardians are against exposing them to such teachings, precautionary provisions are necessary. International judicial activity has taken place in this area, although almost exclusively in Europe.

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Eighth, a downward or deteriorating trend in the recognition of both rights—to proselytize and to change one’s religion—has characterized international instruments. The 1948 Universal Declaration is far-reaching in both respects; the 1966 Covenants had to use milder language; the 1981 Declaration was in danger of not being adopted if a compromise had not been reached. This could mean that there has been a change in the attitude of the international community in this respect. Alternatively, it could simply evidence a growing split of opinion that can no longer be readily resolved. Ninth, Western international lawyers argue that the international attitude has not changed. U.N. special rapporteurs consider the change of wording to be more or less cosmetic or superficial; they claim that no interpretation limiting the scope of these rights is acceptable, as proclaimed in the Universal Declaration and in the ICCPR. Article 8 of the 1981 Declaration was intended to safeguard those rights. Representatives of some religious communities take a different view, claiming that their communities cannot be expected to depart from deeply rooted traditions. In view of the intensity of their objections, it seems difficult to assert that these opponents should be expected to consider the rights to change religion and to proselytize as reflecting binding customary law for them. The issue of universalism versus particularism is relevant in this respect. For example, the particular situation of indigenous populations must be contemplated. Tenth, the Human Rights Committee’s General Comment on Article 18 follows the classic universalist approach. Jurisprudence is scarce in this respect. The delays and difficulties in the quest for a mandatory treaty on religious rights are, however, an indication of the ideological controversy. In recent years religious fundamentalism and the confusion between politics and human rights, particularly in the religious sphere, have further complicated the issue. Proselytism and the right to change one’s religion are, of course, not absolute rights. However, they do need to be protected and, to that effect, legal formulation seems to be rather pressing.

CHAPTER EIGHT

RELIGION AND TERRORISM

International organizations saw in the increase of terrorist activities that took place in recent years, particularly since the barbaric acts committed against the United States on 11 September 2001, as well as those occurred in other parts of the world, such as Spain, Turkey, Russia, Israel, Indonesia, and others, a scourge of our time and a major threat to international peace and security. International action against terrorism and the different plans to combat it involved the need to address the issue of the relationship between that action and human rights, particularly religious freedoms. The global legal framework for the fight against terrorism is based on a series of Security Council resolutions, particularly Resolutions 1269 (1999), 1368, 1373 and 1377 (2001), and 1456(2003), as well as instruments adopted by other organs of the United Nations and other international organizations, some of them declaratory and some mandatory. UN bodies, as well as regional organizations, felt the need to take measures to prevent and combat terrorism, including international co-operation, security measures, rapid ratification and implementation of relevant international instruments, adequate social and economic action, and encouragement of individual States actions to that effect. While Security Council resolutions, by their very nature, stressed the threat to international peace and security involved in international terrorism and urged States to take the necessary steps to prevent the commission of terrorist acts and ensure that any person who participates in any form in terrorist acts be brought to justice,1 it was soon noted that the elimination of the root causes of terrorism required an environment of strong democratic institutions and full respect for human rights and the rule of law. Some anti-terrorist measures and statements were seen as harming entire religious communities by stigmatizing their members, and international organizations looked for ways of limiting that effect. Presently, international organizations are trying to strike a balance between the pressing need to confront terrorism and the preservation of human rights. The Council of Europe, for instance, has drafted a number of instruments

1 See, for instance, the language of SC Resolution 1373 (2001), adopted when the impact of the heinous events of September 9 was still fresh.

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regulating the standards that should be kept in mind to this effect, namely fighting efficiently terrorism while upholding basic values and fundamental rights. “The fight against terrorism must never lead to a curtailing of the values and freedoms terrorists intend to destroy”. On the other hand, freedom of expression should not protect incitement to behavior criminalized by law.2 A comprehensive Plan of Action for Combating Terrorism elaborated in 2001, in Bucharest, by the Organization of Security and Co-operation in Europe (OSCE) bodies called for measures aimed at preventing and fighting aggressive nationalism, racism, chauvinism, xenophobia and anti-Semitism, encouraging tolerance and multi-culturalism, addressing ethnic frictions, combating hate speech, and similar steps.3 The OSCE discussed frequently the issue of terrorism and, in a recent meeting devoted to human rights and the fight against terrorism, selected for discussion three topics: religious freedom, torture, and the role of civil society and the fight against terrorism. Session 1 of the meeting discussed freedom of religion in the context of the fight against terrorism.4 The Final Report points out that there was agreement that freedom of religion is one of the foundations of a democratic society and is a fundamental freedom that cannot be undermined in the fight against terrorism. No religious label should be attached to the notion of terrorism, and religious communities should be allowed to operate freely. Still, religious communities can play a valuable role in preventing and combating terrorism. The Recommendations to the OSCE participating States elaborated by the meeting have global validity, and deserve to be summarized in detail.5 Religious freedom is a right, and national security should not be used as an improper justification for limiting it. Individuals should be allowed to worship, individually or in community with others, and to convey their beliefs through education. Religious communities should be allowed to operate freely and registration requirements should be according to international human rights law. Stigmatization of any minority or other group in society because of their religion or belief should be prevented. Although no particular religious group is

2 See, recent books published by the Council of Europe: The fight against terrorism, Council of Europe standards (3rd ed., 2005); Apologie du terrorism and Incitement to terrorism (2004). – 3 See, Selected OSCE Commitments Relating to Human Rights and the Fight Against Terrorism, a guide prepared for the OSCE Supplementary Human Dimension Meeting, Vienna, 14–15 July 2005. See, also, OSCE/ ODIHR, Guidelines for Review of Legislation Pertaining to Religion or Belief, adopted by the Venice Commission and welcomed by the OSCE Parliamentary Assembly in 2004. 4 See, Final Report of the Supplementary Human Dimension Meeting, Vienna, 14–15 July 2005. The Recommendations regarding freedom of religion were introduced by Rapporteur Laila Bokhari. 5 See, supra, Final report, pp. 7–10. See, also, the introductory speeches made at the indicated session.

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mentioned by name, it is to be assumed that the reference is to Islam, since Muslim organizations are frequently singled out as allegedly involved in terrorist actions.6 For example, Robert F. Drinan writes: “It is clear that the Muslim terrorists who changed the world on September 11, 2001, might not have operated on any theological convictions derived from Islam, but their recklessness will long be connected somehow with the teaching of the prophet Muhammad.”7 On the other hand, States should ensure that groups perpetrating criminal activities under the guise of religious activity are prosecuted in accordance with fair trial standards. Minority religious communities should be approached to work with them to combat terrorism. Stereotyping of religious communities should be avoided. “Adequate and effective guaranties” of freedom of thought, conscience, religion and belief should be provided for all without distinction, including effective remedies in cases where those rights, and the right to practice freely one’s religion, as well as the right to change one’s religion or belief, are violated. A special Recommendation aims at ensuring that no one is deprived of the right to life or to liberty and security of person because of religion or belief, or is tortured or arbitrarily arrested on that account. All perpetrators of violations of these rights should be brought to justice. Religious places, sites and shrines should be fully respected and protected, particularly in cases where they are vulnerable to desecration or destruction. Hatred, intolerance and acts of violence, intimidation and coercion motivated by intolerance based on religion or belief should be opposed, with particular regard to religious minorities. Special attention should be paid to practices violating the human rights of women, including the exercise of their right to freedom of thought, conscience, religion or belief. Tolerance and respect in all matters relating to freedom of religion or belief should be encouraged, but, when the liberty of cult and expression “serves a radicalism that produces appeals to hatred and violence or as a recourse to proselytism in favor of a terrorist cause”, it should not be tolerated. States should reject the identification of terrorism with any particular religion or belief, protecting the right to freedom of religion or belief, and promote interand intra-faith dialogue. The use of freedom of religion as a shield for incitement to hatred and violence or for the promotion of a terrorist cause should not be allowed.

6 This came into expression in some of the speeches delivered at the session. See, Final Report, pp. 41 and 42. 7 See, Robert F. Drinan, S. J., Can God & Caesar Coexist? (New Haven, Yale University Press, 2004) 189.

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Religious communities can play a valuable role in preventing and combating terrorism. The practice of religion or belief and the promotion of inter- and intra-religious dialogue should be facilitated, within a framework for promoting tolerance, mutual understanding and respect for diversity. A specific focus should be put on education. Representation of religious groups in the political process should be encouraged. Cultural and religious diversity should be respected, preventing discrimination and racial/religious profiling. Freedom of expression, freedom of religion and freedom of association should not be put in danger. There seems to be, in these recommendations, no departure from generally accepted principles concerning freedom of religion. The novelty lies perhaps in the fact that international bodies, as well as interested non-governmental entities, considered necessary to devote special meetings to the subject of the interaction between acts of terrorism and their possible motivation related to religion or beliefs, or at least the religious affiliation of many of the actors. Such an interaction has been singled out for discussion also in the past, but the increase of terrorism, its obvious international character and the fact that entire religious communities are blamed by many as responsible for such increase must be seen as the reasons for inducing States and inter-state institutions to put the subject on the international agenda, as an urgent item. Also the first report submitted to the Commission of Human Rights by the new Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir, appointed in July 2004, deals with anti-terrorist legislation and its impact on religious human rights.8 The Rapporteur points out that over the last few years many States have adopted legislation and other measures designed to fight against terrorism. Some of these laws and measures have presented, the Rapporteur writes, “a simplistic link between terrorism and religion.” Such an approach “may have contributed to provoking even more acts of religious intolerance leading to violence.” In this context, the Special Rapporteur underlined that “freedom of religion or belief is a fundamental right that is not susceptible of derogation, even in time of emergency or because of national security concerns, as is clearly stated in article 4 of ICCPR.” “This aspect of freedom of religion or belief not only implies that no individual can be deprived of this right even in time of emergency, but also that States should avoid equating certain religions with terrorism as this may have adverse consequences on the right to freedom of religion or belief of all members of the concerned religious communities or communities of belief.”9

8 9

See UN Doc. E/CN.4/2005/61, page 18. Ibid.

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In her conclusions and recommendations, the Special Rapporteur stresses that the events of 11 September 2001 continue to have a dramatic impact on the situation of human rights, including freedom of religion or belief. Still, it is a reason for concern that States adopt “a confusing and misleading link between certain religions and terrorism, which affects the right to freedom of religion of those persons whose religion or belief is targeted.”10 The former Special Rapporteur, Abdelfattah Amor, in his last report to the Commission on Human Rights,11 was more explicit in this respect. He writes that the events of 11 September 2001 “unleashed a veritable Islamophobia, the extent of which cannot yet be estimated, rendering this religion suspect in the eyes of many . . . ”12 Also the International Committee of the Red Cross, the institution in charge of promoting and strengthening international humanitarian law, joined the debate on religion and terrorism by devoting an issue of its Review to this subject.13 In an editorial article, the Editor-in-Chief of the review writes: “The growing and intensified manifestations of religion in politics and vice versa is part of the environment of ICRC operations and even the different emblems of the Red Cross and Red Crescent Movement are given a religious interpretation, especially in cross-cultural operations . . . The increasing combination of politics, religion and welfare work has even helped to bring violent movements into being, and some humanitarian organizations have been suspected of supporting terrorism. The doctrine of Jihad has been invoked both for self-defense and to promote a good case, including the humanitarian one. Muslims have long perceived the Western aid system as having a hidden agenda, and Christian fundamentalist religious organizations do often have humanitarian sections.”14 In the same issue, in an interview with Red Cross officials, Dr. Ahmed Ali Noorbala, President of the National Red Crescent Society of the Islamic Republic of Iran, was asked if “Islamic charitable organizations, including some supported by Iran” are perceived basically as “favoring ‘terrorism’ under the cloak of humanitarianism.” He admitted that “some institutions, some so-called Islamic groups or institutions, may be perpetrating unacceptable acts.”15

10 11 12 13 14 15

Ibid., at page 21. UN Doc. E/CN.4/2004/63, dated 16 January 2004. Ibid., at page 25. International REVIEW of the Red Cross, Vol. 87, No. 858, June 2005. Tony Pfanner, at page 241. Interview with Ahmad Ali Noorbala, at pages 247–8.

CHAPTER NINE

A SECULAR VIEW OF HUMAN RIGHTS Michael J. Perry’s The Idea of Human Rights: Four Inquiries is a major contribution to the clarification of the idea of human rights, which he considers to be, for many, the most difficult of all the influential moral ideas to take center stage in the twentieth century. He argues that it is, “in one form or another,” an “old idea” and opens his Introduction with a quotation from Leszek Kolakowski dismissing the assertion that “the idea of human rights is of recent origin.” For someone who is as ready to admit being a “secular enthusiast of human rights” as the author of this comment, Perry’s denial of the fact that human rights constitute a recent phenomenon certainly “poses a problem.”1 The problem is really essential with regard to Perry’s foundational conviction advanced in Chapter I, where he claims that the idea of human rights is ineliminably, inescapably, religious, and that so is the view that “every human being is sacred.” Inescapably? I would like to base my secular “enthusiasm” on some authority. According to the Encyclopedia of Human Rights, “[p]rior to World War II there existed no international human rights law binding on nation States.” (That is, of course, not the same as saying that human rights were completely ignored before that.) Beyond the movement to abolish slavery and the slave trade, the antecedents to international humanitarian law and the minorities’ treaties in the period between both World Wars, it was “in response to the horrors of the Nazi Holocaust” that States were pressured “to lay the conceptual and legal foundations for international human rights law.”2 According to Oppenheim ‘s International Law, prior to the Charter of the United Nations, international law did not (notwithstanding various developments pointing in that direction) recognise what are often described as fundamental, inalienable, or natural human rights. The rise,

1 2

Michael J. Perry, The Idea of Human Rights: Four Inquiries 29 (Oxford U Press, 1998). Edward Lawson, ed, Encyclopedia of Human Rights 21 (Taylor & Francis Pub, 2d ed, 1996).

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in the period following the First World War, of various forms of authoritarian dictatorships gave a renewed impetus to the claim for an international recognition and protection of fundamental human rights.3

Perry is, of course, right when he affirms that the idea of human rights is an old one, although he admits that the idea “has emerged in international law in the period since the Second World War.”4 Unquestionably, that idea has roots in religious thought, as well as in natural law, in Roman law, in the Enlightenment philosophy, and in other conceptions explaining why individuals need to live in a law-respectful society and why States and nations need to live in a world society based on international law. Without such input, modern human rights law would not have developed as it did. But a distinction has to be made between the idea, or ideas, of human rights and human rights law, namely the body of international (and constitutional) law which expressed itself, in the last 50 years since 1945, or rather since 1948, in a series of conventions, declarations, judicial decisions and resolutions of international global and regional organizations proclaiming, guaranteeing and trying to protect the basic, fundamental, individual and collective human rights.5 That body of international law constitutes, in the words of Paul Sieghart, “a superior international standard, established by common consent,” which caused the disappearance of . . . “the need for standards founded on systems of divine or natural law . . . and with it the need for the legal positivist to object to them. To judge whether a national law is good or bad, just or unjust, recourse is no longer necessary to the Creator or to Nature, or to belief in either of them.”6

Justice Haim Cohn, the late Vice-President of the Supreme Court of Israel and a prominent authority in ancient Jewish law, writes that the history of that system of law over four millennia affords a classical example of a legal system which had religion—and revelation—not only for its primordial origin but also, throughout the ages, for its fundamental guiding principle, its Grundnorm, around which and out of which the whole normative body of the law was allowed to grow.7

3 Sir Robert Jennings & Sir Arthur Watts, eds, Oppenheim’s International Law 984–85 (Longman Pub, 9th ed 1993). 4 Perry, The Idea of Human Rights at 11 (cited in note 1). 5 The classification of human rights in individual rights, collective rights and rights of the group as such is also the result of modern legal and political thought, although some precedents can be found in earlier treaties and in humanitarian intervention. 6 Paul Sieghart, The International Law of Human Rights 15 (Clarendon Press, 1995). The author reminds us that references to the Creator or to Nature were deleted from the draft of the Universal Declaration of Human Rights shortly before its adoption. 7 Haim H. Cohn, Human Rights in Jewish Law 16 (Ktav Pub House, 1984).

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And then he adds: Speaking of human rights concepts I must say at once that no explicit concept of this kind is to be found in Jewish law. It is not only that the formative sources of Jewish law precede by millennia the first enunciation of such slogans as civil liberties, citizens rights, or individual freedom: Jewish law is in no way unique or isolated among ancient systems of law or religion which fail to recognize human rights specifically. It is mainly that the particular structure of Jewish law qua religious law—with God as the central object of love and veneration, and the worship and service of God as the overriding purpose of all law—postulates a system of duties rather than a system of rights. It is true that the conferment of rights may be incidental to the fulfillment of duties: in many instances, the very imposition of a duty already implies the creation of a collateral right, and that right may even be legally enforceable; in other instances, there may exist a duty—but rather than incidentally conferring any enforceable right, the performance of the duty will result only in the conferment of a benefit.8

Justice Cohn points out that, in order to ascertain the existence and scope of “human rights” in Jewish law, we shall have to look at “commandments” (mitzvot), including positive precepts and negative injunctions, . . . and start from the premise that the purpose of imposing duties toward your fellowmen was but the recognition and implementation of rights of which these fellowmen stand possessed. . . . It stands to reason that from the duty to assist and maintain the poor a fundamental right of every human being to his livelihood may reasonably be inferred, as the fundamental right to life may justifiably be inferred from the prohibition of homicide.9

But, continues Cohn, all commands of the law are addressed to individuals. On God no duties can be imposed. Pronouncements from the mouth of God addressed to rulers, kings, prophets, and other such functionaries of public law relate mostly to acts of state and “have no bearing on human rights.” In legal terms, it is not the state which grants and implements human rights and from which their enforcement must be sought, but only the individual concerned in the particular matter. The duty imposed on that individual is often expressed in general terms, not as conferring any tangible right or even benefit on any identifiable person; and the potential beneficiary may therefore have no cause of action to have his ‘human right’ enforced—he will have to content himself with the doubtful consolation that there must somewhere and somehow be some individual in duty bound to succor him.10

8 Id at 18. Cohn provides some examples: prohibitions such as “thou shalt not steal” or “thou shalt not remove thy neighbor’s landmark” may be read to imply a right to property and possession, nowhere spelled out as such; the duty of learning and teaching is reiterated, but there is no right to education articulated anywhere. 9 Id at 18–19. 10 Id at 19.

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I have quoted in length from Haim Conn’s text. His conclusion that the duties imposed by Jewish lawgivers reflect their ethical standards, postulated by a legal order “conditioned by, and wholly dedicated to, the service and worship of God,” is illuminating to evaluate the contribution of ancient religious thought to the conformation of a modern theory of human rights legally enforceable, first and foremost against one’s own State, generally the main violator of such rights. That such contribution exists and is significant is beyond any doubt. Does it follow from here necessarily that the idea of human rights is ineliminably, inescapably religious? Does the important contribution of religious thought so powerfully override negative tendencies of the world’s “great” religious traditions to “tribalism, racism and sexism—and worse,” in the words of Michael Perry himself,11 not even to resort to his quotations from other authors. Sacred? Perry is consistent: because every human being is sacred, a conviction which is “an essential, even foundational” constituent of the idea of human rights, this idea is “ineliminably religious” even if it possibly “poses a problem for the secular enthusiast of human rights.”12 “Sacred” is, of course, not a legal term. The New Shorter Oxford English Dictionary on Historical Principles defines “sacred” in the following ways: 1) set apart for or dedicated to a religious purpose and so deserving veneration or respect; 2) regarded with or deserving veneration or respect as of something holy . . . ; 3) protected (as) by religious sanction or reverence from violation, interference, incursion, etc., sacrosanct, inviolable.13 Another popular dictionary describes “sacred” as pertaining to or connected with religion (opposed to secular or profane).14 I have no difficulties with these definitions of “sacred.” And it is to my mind absolutely legitimate for any religious view of human rights to be based on the assumption that every human being is sacred and that, for that reason, to use Perry’s adequate wording, “certain things ought not to be done to any human being and certain other things ought to be done for every human being” or, Perry, The Idea of Human Rights at 22 (cited in note 1). Id at 29. 13 Lesley Brown, ed, 2 The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, 1993). 14 Webster’s College Dictionary (Random House, 1998). 11 12

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at least, “certain things ought not to be done to any human being in particular circumstances and certain other things ought to be done for every human being in particular circumstances,”15 But, if this is the exclusive justification of the need to respect human rights, immediate and difficult questions arise. By whom ought certain things not to be done, or done? Obviously, by other individuals, or by the individual State, or by the global world community, or its regional branch. This seems all right concerning individuals. But at the State level or at the international level, can this idea of “sacredness” be used to justify a system to protect human rights? Perry cites the International Bill of Human Rights and regional corresponding texts and refers to “the dignity and worth inherent in the human person” as notions equivalent to the conviction that every human being is sacred. He asks if such notions (“talk”) can be understood in a “non-religious (‘secular’) sense.” It seems to me that the international community so understood human rights, and took a different view. To base the protection of human rights exclusively on the religious idea (absolutely legitimate for religious persons) leaves those rights without a sound protective umbrella. Neither the international community nor most of its existent members will agree to such a basis, although there might be general acceptance of a religious positive approach to human rights as one—but only one-of the grounds for their protection. The term “sacred” implies additional difficulties. If every person is sacred, the use of force in international life, even when it is permitted, as in the cases of self-defense or collective security instances, would be unacceptable; the death penalty (that hopefully will disappear) would always be illegal (unfortunately not the case presently); criminal law, including rudimentary international criminal law, would confront serious obstacles. Above all, there might be insolvable discrepancies as to the meaning of “sacred” and certainly a virtual impossibility of incorporating such a notion in positive, enforceable (to the extent it is enforceable) human rights law. Perry refers to the “post-Holocaust age” as one “of innocence lost.”16 All along the half century that already elapsed in that age, international law and human rights law struggled, with little although some success, to elaborate a system for the protection of human rights providing a minimum standard of enforceable guarantees. As our author rightly says, issues that had been for many of us primarily intellectual had become “profoundly existential” (El Salvador, Bosnia, and, of course, others come to mind as do Kosovo, Rwanda, torture, the “relativist challenge to the idea of human rights” and other manifestations, most of which cannot be dissociated from the memories

15 16

Perry, The Idea of Human Rights at 13 & n 5 (cited in note 1). Id at 105.

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of the Holocaust). Enforcement of human rights is a very difficult task, at the domestic or global levels. One may argue that the few instances in which the United Nations Security Council has invoked Chapter 7 of the Charter in order to cope with situations in which violation of human rights have been seen as a threat to peace and security of mankind may make that task easier. Perhaps. It is also possible to argue that the Yugoslavia and Rwanda tribunals and the Hague International Criminal Court involve progress in the punishment of gross violators of human rights. Hopefully. But, on the whole, the “post-Holocaust age” has not yet produced a satisfactory, basic, practical protective system of human rights. It is against this failure, or insufficient progress, that a comprehensive, pragmatic, all-embracing approach to the idea of human rights, including an “intelligible,” “persuasive,” “secular version of the conviction that every human being”—“sacred” (whatever it means) or not—is entitled to the catalog of rights enunciated in the Universal Declaration, in the Convention Against Genocide (adopted one day before the Universal Declaration), in the 1966 Covenants, in the 1965 Convention Against Racial Discrimination, the 1981 Declaration on Discrimination or Intolerance Based on Religion or Beliefs, the Convention on the Rights of Women, the Convention on the Rights of the Child, the Convention Against Torture, etc., etc. I have no objection to the claim of religious people to base their idea of human rights on religious grounds. But I don’t accept that this is the “only intelligible” version. The idea of human rights expresses itself in human rights law, at present weak and insufficient, and such law is a modern, secular phenomenon closely connected to the development of international law after 1948, or, to use Perry’s language, “in this post-Holocaust age of innocence lost.” An “Intelligible” Secular Version As instructed by the organizers of this “round table,” I preferred to engage in one of the threads of Michael Perry’s four important inquiries, so well explained and argued, and all of which deserve to be commented upon. The fact that I disagree with one of the major answers to those inquiries only increased the enjoyment of the book. But this may not be sufficient, and the book deserves that an attempt be made to meet the challenge of providing an “intelligible” secular version of the foundations of the idea of human rights. In his Introduction to a Symposium with Comments and Interpretations on Human Rights edited by UNESCO,17 Jacques Maritain tells a story: At one

17

UNESCO, Human Rights—Comments and Interpretations (A. Wingate, 1949).

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of the meetings of a UNESCO National Commission where human rights were being discussed, someone expressed astonishment that certain champions of violently opposed ideologies had agreed on a list of those rights. “Yes,” they said, “we agree about the rights but on condition that no one asks us why.” That “why,” adds Maritain, “is where the argument begins.”18 As regards the question of human rights, men are divided, he writes, into two antagonistic groups: “those who to a greater or lesser extent explicitly accept, and those who to a greater or lesser extent explicitly reject ‘Natural Law’ as the basis of those rights.” But, if “we adopt a practical viewpoint and concern ourselves no longer with seeking the basis and philosophic significance of human rights but only their statement and enumeration, we have before us an entirely different picture . . . : not only is agreement possible between the members of opposing philosophic schools, but . . . the operative factors in any historical introduction to a joint assertion of human rights are less the schools of philosophy themselves than currents of thought . . . where the principal part has been played by the lessons of experience and history. . . . In consequence, it cannot be too strongly emphasized that admission of a particular category of rights is not the exclusive possession of any one school of thought. . . .”19

Maritain wrote these lines more than 50 years ago. In the meantime, a broad and not too controversial catalog of generally recognized human rights developed, at the national level in the framework of constitutional law, but essentially at the international level. The mere existence and acceptance of such a catalog by large numbers of States implies a virtual “intelligible” and “secular” version of human rights today, although controversies may arise as to the “why,” or Perry’s first inquiry. Sieghart, who has already been quoted, writes that, for the first time, the great American and French texts of the nineteenth century set forth the propositions of modern human rights law. These principles are three: (1) universal inherence, (2) inalienability, and (3) the rule of law. The principle of universal inherence proclaims that “every human being has certain rights, capable of being enumerated and defined, which are not conferred on him by any ruler, nor earned or acquired by purchase, but which inhere in him by virtue of his humanity alone.”20 Those three principles were incorporated into the constitutional law of modern democracies, but it was only with the emergence and development of international human rights law that they acquired almost universal validity, as a minimum standard that overrules the absolute and exclusive prevalence of national sovereignty. After 1945, or rather, as indicated, 18 19 20

Id at 9. Id at 13–14. Sieghart, The International Law of Human Rights 8 (cited in note 6).

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after 1948, an international law of human rights free from the need of religious, moral or ideological justification developed, except for the recognition, in the Preamble of both Covenants, that human rights “derive from the inherent dignity of the human person.”21 Why is it so difficult to understand this language, or talk, in a “non-religious (‘secular’) sense?” Or should we perhaps all take the advice contained in Maritain’s story and leave aside the “why?” After having read and enjoyed Perry’s work, providing the basis for this written “round table,” I am sure that we shall certainly agree on the “what.”

21 International Covenant on Civil and Political Rights, Preamble, GA Res 2200A, 21 UN GAOR, Supp No 16 at 52, UN Doc A/6316 (1966); International Covenant on Economic, Social and Cultural Rights, Preamble, GA Res 2200A (21), 21 UN GAOR, Supp No 16 at 49, UN Doc A/6316 (1966). “Dignity and worth inherent in the human person” is the wording of the 1993 Vienna World Conference on Human Rights.

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RELIGIOUS SYMBOLS: HOW WIDE THE MARGIN OF APPRECIATION? THE TURKISH HEADSCARF CASE, THE STRASBOURG COURT, AND SECULARIST TOLERANCE I. Introduction On June 29, 2004, the European Court of Human Rights (Court) decided S¸ahin v. Turkey in a unanimous vote of its Fourth Section.1 Leyla S¸ahin, a Turkish national, sued the Republic of Turkey, asking the Court to declare that a ban on wearing the Islamic headscarf in higher education institutions violated her rights and freedoms under Articles 8, 9, 10, and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms2 (Convention) and Protocol No. 1 of the Convention3 (Protocol 1). The Court dismissed a preliminary objection of the Turkish Government concerning the exhaustion of domestic remedies and ruled that there was no violation of Article 9 of the Convention and that no separate question arose under the other provisions Ms. S¸ahin invoked.4 The judgment will become final in accordance with Article 44(2) of the Convention.5 In general, the decision is consistent with the Court’s previous rulings based on the recognition of every state’s margin of discretion to determine its own legal system.6 The decision also should be considered in light of recent developments 1. S ¸ahin v. Turkey, App. No. 44774/98 (Eur. Ct. H.R. June 29, 2004), available at http:// www.echr.coe.int/Eng/Judgments.htm. The author of this article used the English text of the decision that may be subject to editorial revision. The Court made the ruling definitive on November 10, 2005. 2. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 312 U.N.T.S. 221. 3. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force May 18, 1954, 213 U.N.T.S. 262. 4. S ¸ ahin, at para. 117. 5. Id. at opening remarks. 6. See generally P. VAN DIJK & G. J. H. VAN HOOF, THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (1990); Ronald St. John MacDonald, The Margin of Appreciation in the Jurisprudence of the European Convention on Human Rights, in INTERNATIONAL LAW AT THE TIME OF ITS CODIFICATION: ESSAYS IN HONOUR OF ROBERT AGO (Dott. A. Giuffre ed., 1987). For the Court’s decisions on religious issues, see generally MALCOLM D. EVANS, RELIGIOUS LIBERTY AND INTERNATIONAL LAW IN EUROPE (1997). A more recent article evaluating the work of the Court is found in Leo F. Zwaak & Therese Cachia, The European Court of Human Rights: A Success Story?, 11 HUMAN RIGHTS BRIEF 3 (Spring 2004).

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affecting the relationship between religion and state. That background includes the debate on the place of God and religious traditions in the proposed European Constitution;7 the Ten Commandments8 and the Pledge of Allegiance cases before the U.S. Supreme Court;9 Spain’s plans regarding separation of church and state;10 and the situation in France, where the ban on wearing the Islamic foulard (headscarf ) entered into force shortly before the writing of this article.11. Did the Court strictly follow its own case law? Has the Court, while approving the appealed Turkish measures, taken a line similar to that of most European countries, or did it go beyond that? I comment on the case from a purely secular and human rights approach.12 As editors of a recent major volume on freedom of religion point out, public debates on wearing headscarfs or other comparable religious symbols in public settings pervade “the crucial sectors of modern life—from culture and civil society, to politics and identity, to security and conflict.”13 Starting with a summary of the facts of the S¸ahin case and the background of Turkish law and practice regarding legislation, judicial decisions, and government

7 See Richard Potz et al., God in the European Constitution? – Opinions of the European Consortium Members, NEWSLETTER OF EUROPEAN CONSORTIUM OF CHURCH AND STATE RESEARCH, Year 4, Issue 4 (April 2004) (carrying opinions in this respect of members of the European Consortium for Church and State in 2004), http://www.church-state-europe.org/newsletter/ April2004-Inserto.pdf. 8 See Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003) (holding that the state legislature had a valid, secular purpose for authorizing the installation of a Ten Commandments monument, which did not have the primary effect of advancing or inhibiting religion from the eyes of the reasonable observer), cert. granted, 125 S.Ct. 346 (U.S. Oct. 12, 2004) (No. 03-1500); ACLU of Kentucky v. McCreary County, 354 F.3d 438 (6th Cir. 2003) (posting of the Ten Commandments in the county courthouse and schools violated the Establishment Clause), cert. granted, 125 S.Ct. 310 (U.S. Oct. 12, 2004) (No. 03-1693). See also David Stout, Ten Commandments case taken up by Supreme Court, INT’L HERALD TRIBUNE, Oct. 13, 2004, at 5 (discussing the U.S. Supreme Court’s acceptance of certiorari to hear Texas and Kentucky cases regarding the constitutionality of displaying the Ten Commandments on government property). 9 See Elk Grove Unified Sch. Dist. v. Newdow, 124 S.Ct. 2301 (2004) (reversing the Ninth Circuit’s decision to strike down the “under God” clause of the Pledge of Allegiance because of standing); Charles L. Butler, Federal Funding to Faith-Based Organizations: Unconstitutional, Wherever the Spirit Moves Them, 13 WILLAMETTE J. OF INT’L L. & DISP. RESOL. 27, 43–45 (2005) (discussing the Newdow decision). See also Carl Hulse, House Passes Court Limits on Pledge, N.Y. TIMES, Sept. 24, 2004, at 17. 10 See Marlise Simons, Church and State Clash, Noisily, in Spain, N.Y. TIMES, Oct. 4, 2004, at 3 (discussing and quoting Prime Minister Rodriguez Zapatero’s statement). 11 See generally Elisa T. Beller, The Headscarf Affair: The Conseil d’Etat on the Role of Religion and Culture in French Society, 39 TEX. INT’L L.J. 581 (2003–2004). 12 For the author’s views on state and religion, see generally Natan Lerner, GROUP RIGHTS AND DISCRIMINATION IN INTERNATIONAL LAW (2d ed. 2003). 13 Tore Lindholm et al., Introduction, in FACILITATING FREEDOM OF RELIGION OR BELIEF: A DESKBOOK xxviii (Tore Lindholm et al. eds., 2004).

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regulations on headscarfs, this article discusses the European practice of religious regulation. It also discusses the Court’s ruling and the parties’ arguments in relation to the concept of a margin of appreciation. Lastly, on evaluation of the Court’s ruling, this article discusses, from a human rights and secular angle, the Court’s possible contradictions between the S¸ahin case and past rulings, as well as the margin of appreciation and the right to manifest religious beliefs. II. The Facts and Background The applicant, Leyla S¸ahin, is a Turkish national.14 Born in 1973 to a traditional family of practicing Muslims, she believes one of her religious duties is to wear the Islamic headscarf.15 After leaving Istanbul in 1999, she continued her studies at the Faculty of Medicine at Vienna University.16 In 1998 Ms. S¸ahin submitted to the European Commission on Human Rights an application against the Republic of Turkey under former Article 25 of the Convention.17 She alleged a ban on wearing the Islamic headscarf in higher education institutions violated her rights and freedoms under Articles 8, 9, 10 and 14 of the Convention and Article 2 of Protocol 1.18 Transmitted to the Court on November 1, 1998, when Protocol No. 11 to the Convention came into force, and allocated finally to the Fourth Section, on July 2, 2002, the Court declared the application admissible.19 Both sides submitted written observations and evidence upon addressing the Court. On June 29, 2004, the Court ruled and its decision summarized the circumstances of the case.20 In 1997, Ms. S¸ahin was in her fifth year at the Faculty of Medicine at the University of Bursa and enrolled at the Cerrahpasa Faculty of Medicine of the University of Istanbul.21 She wore the Islamic headscarf at all times during her attendance at the University of Bursa and continued doing so until attending the University of Istanbul in February 1998.22 On February 23 of that year, the Vice-Chancellor of the University of Istanbul issued a circular regulating students’ 14 S ¸ahin v. Turkey, App. No. 44774/98, para. 10 (Eur. Ct. H.R. June 29, 2004), available at http://http://www.echr.coe.int/Eng/Judgments.htm. 15 Id. 16 Id. 17 Id. at para. 1–2. 18 Id. 19 Id. at para. 6. 20 Id. 21 Id. at para. 11. 22 Id.

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admission to the campus.23 Invoking the Turkish Constitution, Turkish law and regulations, the case law of the Supreme Administrative Court (SAC) and the European Commission of Human Rights (ECHR), and resolutions of the University administrative boards, the circular stated that “students whose ‘heads are covered’ (wearing the Islamic headscarf ) and students (including overseas students) with beards must not be admitted to lectures, courses or tutorials.”24 Consequently, the University of Istanbul denied Ms. S¸ahin access to examinations and lectures because she wore the Islamic headscarf.25 On July 29, 1998, Ms. S¸ahin asked for an order setting aside the circular of February 23, 1998, alleging infringement of her rights under Articles 8, 9, and 14 of the Convention and Article 2 of Protocol No. 1.26 On March 19, 1999, the Istanbul Administrative Court (IAC) dismissed the application, holding that the University of Istanbul’s Vice-Chancellor had the power to regulate students’ dress to maintain order, provided the power was exercised in accordance with the relevant legislation and judgments of the Turkish Constitutional Court and the SAC.27 On April 19, 2001, the SAC dismissed Ms. S¸ahin’s appeal on legal grounds.28 The University of Istanbul took several disciplinary measures against Ms. S¸ahin. For example, she was warned and later suspended for a semester for taking part in an unauthorized assembly at the Cerrahpasa Faculty of Medicine.29 On June 10, 1999, she lodged an application with the IAC for an order quashing the decision.30 On August 20, 1999, the University submitted its observations defending the legality of the disciplinary penalty.31 On November 30, 1999, the IAC dismissed the application in light of the circumstances and case law on the subject.32 Law 4584 was enacted on June 28, 2000, affording students amnesty for disciplinary offenses, and Ms. S¸ahin was consequently granted amnesty.33 For this reason, the SAC considered an examination on the merits of the applicant’s appeal on legal grounds unnecessary.34 In the meantime, Ms. S¸ahin enrolled at Vienna University to pursue her education.35 23 24 25 26 27 28 29 30 31 32 33 34 35

See id. at para. 12 (providing the relevant part of the circular). Id. Id. at para. 13. Id. at para. 14. Id. at para. 15. Id. at para. 16. Id. at para. 17–20. Id. at para. 21. Id. at para. 22. Id. at para. 23. Id. at para. 24. Id. Id. at para. 25.

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III. Turkish Law and Practice The Court summarized the relevant domestic law and practices.36 The Republic of Turkey is, according to Article 2 of the Turkish Constitution, “a democratic, secular (laik) and social State based on the rule of law, respectful of human rights.”37 According to Article 10, paragraph 1, “All individuals shall be equal before the law without any distinction based on language, race, color, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”38 Article 24, paragraph 1 grants to everyone: [T]he right to freedom of conscience, belief and religious conviction. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.39

Paragraph 4 of Article 24 also is important since it reflects the determination of the Turkish authorities to prohibit the exploitation of religion in order to undermine the secular regime as they understand it. It reads: No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal interest or influence thereby.40

In its decision, the Court summarized the evolution of Turkish policies since the proclamation of the Republic in 1923.41 The Republic was founded on the principle that the State should be secular (laik), and the public and religious spheres were separated through a series of reforms, including the granting of equality to women.42 Concerning dress, people were no longer required, as at the time of the Ottoman Empire, to dress in accordance with their religious affiliations, and the new regime sought to create “a religion-free zone in which

36 See Özlem Denli, Between Laicist State Ideology and Modern Public Religion: The Head-Cover Controversy in Contemporary Turkey, in FACILITATING FREEDOM OF RELIGION OR BELIEF: A DESKBOOK 497 (Tore Lindholm et al. eds., 2004) (describing the place of the headscarf controversy in the political evolution of modern Turkey). See also Simons, supra note 10. 37 TURK. CONST. art. 2 (rev. Oct. 17, 2001). 38 Id. at art. 10, para. 1. 39 Id. at art. 24, para. 1. 40 Id. at art. 24, para. 4. 41 S ¸ ahin, at para. 27. 42 Id.

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all citizens were guaranteed equality.”43 To that effect, a series of provisions were enacted following the Headgear Act of November 28, 1925.44 Since the 1980s, there has been intensive debate on the issue of wearing the Islamic headscarf in schools and universities.45 Some saw the wearing as a duty or form of expression linked to religious identity; others regarded it as a symbol of political intentions of Islam with a view to establish a regime based on religious precepts and threatening to cause civil unrest and undermine women’s rights.46 In 1996, a new coalition came into power, and the debate intensified and reached European institutions.47 In 1981, the Turkish Government issued regulations requiring staff in the public service and personnel and students at State institutions to wear modern dress.48 The regulations forbid female employees and students to wear veils.49 In 1982, the Turkish Government prohibited headscarves in higher education institutions, a measure that the SAC confirmed.50 In 1988, Law 2547 on higher education made “modern dress or appearance” compulsory in relevant institutions and premises, but authorized the use of veils or headscarves “covering the neck and hair . . . out of religious conviction.”51 On March 7, 1989, the Turkish Constitutional Court declared Law 2547 contrary to the articles of the Turkish Constitution on secularism, equality before the law, and freedom of religion, as incompatible with the principle of sexual equality.52 Secularism, the Court said, had acquired constitutional status by reason of the historical experience of the country and the particularities of Islam.53 It was an essential condition for democracy and a guarantor of freedom of religion and equality before the law, preventing the State from showing preference for a religion or belief.54 Freedom of religion guaranteed the liberty to decide whether or not to follow a religion, but did not include

Id. at para. 29. Id. 45 Id. at para. 31. See also Susanna Dokupil, The Separation of Mosque and State: Islam and Democracy in Modern Turkey, 105 W. VA. L. REV. 53, 127 (2002) (asserting that the Turkish government controls such aspects of religious devotion as the wearing of a headscarf). 46 S ¸ ahin, at para. 31. See also Elizabeth Mayer, A “Benign” Apartheid: How Gender Apartheid has been Rationalized, 5 UCLA J. INT’L L. & FOREIGN AFF. 237, 297–300 (2000–2001) (discussing Turkey’s official policy of laicism which prevents men and women from wearing religious dress, such as headscarves, inside government institutions, including universities). 47 See S ¸ ahin, at para. 31. 48 Id. at para. 33. 49 Id. 50 Id. at para. 34. 51 Id. at para. 35. 52 Id. at para. 36. 53 Id. 54 Id. 43 44

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the right to wear any particular religious attire.55 Outside the individual conscience, freedom to manifest religion could be restricted on public-order grounds to defend the principle of secularism.56 When dress was imposed by reference to a religion, that religion was presented as “a set of values that were incompatible with those of contemporary society.”57 Students should be able to enjoy a “calm, tolerant and mutually supportive atmosphere without being deflected from that goal by signs of religious affiliation.”58 In 1991, the Turkish Constitutional Court confirmed that its previous judgment did not allow headscarves to be worn in higher education institutions on religious grounds, since this would be contrary to the principles of secularism and equality.59 Next, the Court examined application of the regulations at the University of Istanbul. The University authorities circulated statements explaining the ban and their concerns regarding maintaining order among the student population.60 In particular, authorities required students and professionals in the health sphere to comply with dress regulations.61 According to a resolution the University of Istanbul adopted on July 9, 1998, students “shall not wear clothes that symbolize or manifest any religion, faith, race, or political or political or ideological persuasion.”62 The Official Gazette published the Student Disciplinary Procedure Rules,63 which were seen as an appropriate exercise of power by University authorities and therefore a valid source of law. IV. Comparative Law The Court next summarily examined European comparative law. It noted that in European countries, such as Belgium and France, the debate on the Islamic headscarf is concerned more with primary and secondary state schools than with universities.64 In France, the Commission on Secularism determined, regarding universities, that a student’s right to express religious, political, and philosophical convictions should take precedence, although not lead to transgressions of the rules on the functioning of the universities.65 55 56 57 58 59 60 61 62 63 64 65

Id. Id. Id. Id. Id. at para. 38. Id. at para. 40. Id. Id. at para. 45. Id. at para. 46. Id. at para. 53. Id. at para. 54.

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In Germany, the Netherlands, Switzerland, and the United Kingdom, state education authorities permit Muslim pupils and students to wear veils.66 The German debate focused on the right of teachers to wear the headscarf.67 The German Constitutional Court ruled in 2003 that teachers enjoyed the right to wear headscarves in the classroom in public schools because Germany’s constitutional law did not explicitly forbid it.68 The Court observed that in the United Kingdom, the Islamic headscarf is accepted and the few disputes that arose were resolved locally.69 No detailed legal debate on the issue has taken place in other countries, such as Sweden, Austria, Spain, the Czech Republic, Slovakia, or Poland.70 V. The Court’s Ruling The Court dismissed the Turkish Government’s preliminary objection and ruled that Ms. S¸ahin exhausted her domestic remedies.71 It then dealt with Ms. S¸ahin’s argument that the ban on the Islamic headscarf in higher education was an “unjustified interference with her right to freedom of religion” and “her right to manifest her religion,” under Article 9 of the Convention.72 The Turkish Government countered the argument, alleging that assuming such interference occurred, it was justified because it was prescribed by law.73 The ruling also reiterated some generally accepted principles. Freedom of thought, conscience, and religion are the foundations of a “democratic society” and a vital element in creating the identity of believers and their conception Id. at para. 56. Id. 68 Kopftuch-Urteil [Headscarf Decision] (Sept. 24, 2003), Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] 108, 208 (F.R.G). 69 Id. See Shabina Begum v. Denbigh High School, E.L.R. 374 (Q.B. 2004), 2004 WL 1174215 (holding that a fifteen year old Muslim girl was permitted to wear a hijab to school, but could not wear a jilbab—a long flowing garment—that was in contravention of the British school’s uniform policy). The Court of Appeal reversed the decision. Finally, on March 22, 2006, the Lords of Appeal set aside the order of the Court of Appeal and restored the order of the judge, approving the decision of the school. See, House of Lords, Judgments—R, Begum v. Denbigh High School [2006] UKHL 15. 70 Id. at para. 57. While this article was being written, the Associated Press reported from Brussels that the Belgian authorities were considering forbidding government employees that are in touch with the public from wearing religious symbols at work. According to the report, dated December 8, 2004, the prohibition would affect all religions. See Anthony Browne, Belgium next in line as Europe’s veil ban spreads, THE LONDON TIMES, Jan. 19, 2004, at 11. See generally Francis Raday, Culture, religion, and gender, 1 INT’L J. OF CONST. L. 663 (2003) (providing a comprehensive overview of case law on issues of religion and gender, including the headscarf issue). 71 S ¸ ahin, at para. 58, 63. 72 Id. at para. 64. 73 Id. at para. 65. 66 67

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of life.74 It is also “a precious asset for atheists, agnostics, skeptics, and the unconcerned. The pluralism indissociable from democratic society, which has been dearly won over the centuries, depends on it.”75 “While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares.”76 Such manifestation may take a number of forms, namely “worship, teaching, practice and observance.”77 Article 9 of the Convention does not protect every act motivated by religious belief nor in all cases guarantees the right to behave in public in a way dictated by belief.78 Thus, the Court had to decide whether the University of Istanbul interfered with Ms. S¸ahin’s right and, if so, “whether such interference was ‘prescribed by law’, pursued a legitimate aim and was ‘necessary in a democratic society’ within the meaning of Article 9(2) of the Convention.”79 The Court correctly admitted that an interference with the applicant’s right occurred and concluded that there was a basis for such interference in Turkish law80 and that the State’s margin of appreciation was appropriate when it came to the regulation of the wearing of religious symbols in teaching institutions.81 However, the Court’s conclusion may have gone too far and clash with generally accepted principles—82 the correct question was whether the margin of appreciation should predominate over those principles in general and in the particular circumstances of the S¸ahin case.83 On the assumption that the regulations restricting the right to wear the Islamic headscarf in universities constituted an interference with the applicant’s right to manifest her religion, the Court discussed whether such an interference was legitimate, namely if it was “prescribed by law.”84 The Court rejected the argument that the Vice-Chancellor’s circular of February 23, 1998, which prohibited students with beards or wearing veils from access to

Id. at para. 66. Id. 76 Id. 77 Id. See Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) 1 (1993); discussion infra notes 148156 and accompanying text. See also Cha’are Shalom Ve Tsedek v. France, 350 Eur. Ct. H.R. 233 (2000) (involving a religious body who was refused the approval it needed to be able to practice ritual slaughter in accordance with the religious prescriptions of its members); discussion infra notes 160–162 and accompanying text. 78 S ¸ ahin, at para. 66. 79 Id. at para. 67. 80 Id. at para. 81. 81 Id. at para. 81, 84, 101, 102. 82 See discussion infra Part VI. 83 S ¸ ahin, at para. 103. 84 Id. at para. 72. 74 75

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the University premises, was incompatible with the Higher Education Law.85 It reiterated that national authorities, particularly courts, have a primary right to interpret and apply domestic law.86 Also, the administrative courts relied on settled case law of both the SAC and the Turkish Constitutional Court and the term “law” was comprehensive, including measures professional regulatory bodies took that parliament authorized.87 “Law,” in this case, meant statutory and judge-made law.88 The Turkish Constitutional Court’s judgment was binding, properly published, and in accordance with the consistent case law of both the Court and the SAC.89 The University of Istanbul applied the dress regulations long before the applicant enrolled, and the regulations were particularly relevant for students of health-related subjects.90 The Court determined that it was precluded from issuing abstract assessments concerning different universities lacking a uniform practice. Thus, the Court only needed to determine whether the requirements of the term “prescribed by law” were satisfied.91 The Court held that the law was accessible, precise, and that it should have been clear to Ms. S¸ahin that the University of Istanbul had regulations in place on wearing the headscarf. Accordingly, she should have been aware that the University of Istanbul could prohibit her from attending lectures.92 Thus, the impugned measures pursued legitimate aims: (1) to protect the rights and freedoms of others and public order and (2) to uphold the “principle of secularism and ensuring the neutrality of universities in Turkey.”93 The University of Istanbul’s regulations were consequently “prescribed by law.”94 However, in order to determine if the regulations were also “necessary in a democratic society,” the Court examined the claims of the parties.95 Ms. S¸ahin alleged she was a practicing Muslim and wore the headscarf because of her religious belief that Muslim women were required to cover their heads and necks.96 She had not expressed any opinion against the principle of secularism, nor had she worn the veil in an ostentatious manner, never intending to express protest or create religious pressure, provocation, or proselytism.97 During her four years at the University of Bursa, wearing the headscarf had 85 86 87 88 89 90 91 92 93 94 95 96 97

Id. at para. 75. Id. at para. 76. Id. at para. 77. Id. Id. at para. 78. Id. at para. 79. Id. at para. 80. Id. at para. 81. Id. at para. 82–84. Id. at para. 80. Id. at para. 85–96. Id. at para. 85. Id.

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not disrupted, disturbed, or threatened the public order; yet she was unable to pursue her studies in Turkey while wearing the veil.98 Ms. S¸ahin also claimed that the vast majority of the Turkish people were deeply attached to the principle of secularism and opposed theocracy, but not the Islamic headscarf.99 This attire did not challenge republican values or the rights of others and could not be seen as inherently incompatible with secularism and neutrality in education.100 The practice of other European countries showed that no ban on all religious signs in educational institutions was necessary.101 Although risk of tensions in society was inevitable in a pluralist society, the authorities should not do away with pluralism, but rather ensure tolerance among competing groups.102 Since Muslim students were in a different position from other students, they had to be treated differently.103 Ms. S¸ahin further argued that application of the regulations were not uniform. Non-Muslim students were not subjected to disciplinary proceedings, Jewish students were allowed to wear yarmulkes (skullcaps), and Christians wore crucifixes.104 The Higher Education Authority even agreed to excuse Jewish students from class during Jewish holidays.105 All these inconsistencies implied discrimination.106 In response, the Turkish Government asserted that freedom to manifest religion was not an absolute right.107 Rights were balanced with the secular nature of the State concerned, the nature of the religious practice, and the measures taken to preserve the neutrality of public services.108 The principle of secularism was a prerequisite for a liberal, pluralist democracy and this was particularly important in the case of Turkey, the only Muslim country to have adopted a liberal democracy as understood in the West.109 This was because it had “strictly applied the principle of secularism.”110 Religion and freedom were two different concepts not easily reconciled since the headscarf Muslim women wore varied according to the country and the regime; it was difficult to reconcile all different forms of dress, derived from the same religious rule, with the principle of neutrality in state education.111 There was no ban on the 98 99 100 101 102 103 104 105 106 107 108 109 110 111

Id. at para. 86. Id. at para. 87. Id. Id. Id. at para. 88. Id. Id. Id. Id. Id. at para. 90. Id. Id. at para. 91. Id. Id. at para. 92.

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headscarf in private or communal premises and pupils were free to wear it outside schools, but not in “the sphere of State education, a public service to which the principle of secularism . . . applied.”112 In Turkey, the headscarf had become a sign appropriated by religious fundamentalist movements for political ends and constituted a threat to women’s rights.113 To recognize the right to wear a headscarf in public institutions was “tantamount to claiming a privilege for one religion.”114 The Turkish Government also argued that provisions of the “Shariah concerning criminal law, torture as punishment, and the status of women were incompatible with secularism and the Convention.”115 Medicine was a sphere in which a “conservative religious approach” would be incompatible with hygiene requirements and discriminatory toward male patients.116 The University of Istanbul had been the scene of violent confrontations between opposing radical groups and received complaints regarding pressure by fundamentalist religious movements.117 The University of Istanbul regulations were preventive measures and sought to preserve the institution’s neutrality.118 The Court based its decision essentially on the conviction that every state has a margin of appreciation, or discretion, and national authorities are, in principle, a better place than an international tribunal to evaluate local needs and conditions. However, the state’s decision remained subject to the Court’s review, which will judge if the state’s decision is in conformity with the Convention. Quoting from Kokkinakis,119 the Court pointed out that “in democratic societies in which several religions coexist . . . it may be necessary to place restrictions on freedom to manifest one’s religion or belief.”120 It then referred to the Commission’s decision in Karaduman v. Turkey121 and to its own ruling in Dahlab v. Switzerland.122 In the Karaduman case, the Commission dealt with the obligation to submit a photograph without a headscarf; whereas in the Dahlab case a schoolteacher wore the headscarf and the Court stressed the risk of the Id. at para. 93. Id. 114. Id. at para. 94. 115. Id. 116. Id. at para. 95. 117. Id. at para. 96. 118. Id. 119. Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) 1 (1993). 120. S ¸ ahin, at para. 97. 121. Karaduman v. Turkey, App. No. 16278/90, 74 Eur. Comm’n H.R. Dec. & Rep. 93 (1993) (involving a student who was refused a degree certificate for the university course she had completed until she would submit a photograph of herself not wearing a headscarf ). 122. Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447 (2001) (involving a prohibition barring a teacher from wearing an Islamic headscarf). 112. 113.

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impact of the symbol and its possible proselytizing effect on a class of young children.123 The Court added that in a country like Turkey, where secularism is a fundamental principle of the State and the majority of the population belongs to a particular religion, measures taken in universities to prevent fundamentalist movement from exerting pressure on students who do not practice that religion or belong to another religion may be justified under Article 9(2) of the Convention.124 Secular universities may therefore regulate manifestation of the rites and symbols of the said religion by imposing restrictions as to the place and manner of such manifestations, with the aim of ensuring peaceful co-existence between students and protecting public order and the beliefs of others.125 Although the national authorities should make the initial assessment of whether interference is necessary, this decision remained subject to the Court’s review. To determine the scope of the margin of appreciation left to the states, “regard must be had to the importance of the right guaranteed by the Convention, the nature of the restricted activities and the aim of the restrictions.”126 The role of the national decision-making body must be given special importance where questions concerning the relationship between state and religions are at stake.127 The Court emphasized that the application of the margin of appreciation rule was particularly appropriate when states regulate wearing religious symbols in teaching institutions, “since rules on the subject vary from one country to another depending on national traditions[,]” and “there is no uniform European conception of the requirements ‘of the protection of the rights of others’ and of ‘public order.’”128 It noted that “the very nature of education

Id. at 449–450. S¸ahin, at para. 99. 125 Id. at para. 101. 126 Id. 127 Id. (“In such cases, it is necessary to have regard to the fair balance that must be struck between the various interests at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order and pluralism.”). See also Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) 1, 17, para. 31 (1993); Manoussakis and Others v. Greece, 1996-IV Eur. Ct. H.R. 1364, para. 44 (1997) (involving the conviction of Jehovah’s Witnesses for having set up and operated a place of worship without the authorization of the Minister of Education and Religious Affairs); Casado Coca v. Spain, 285 Eur. Ct. H.R. (ser. A) 1, 21, para. 55 (1994) (involving a disciplinary penalty imposed on a member of the Bar for contravening the ban on professional advertising). 128 S ¸ ahin, at para. 102 (citing Wingrove v. United Kingdom, 1996-V Eur. Ct. H.R. 1937, 1958, par. 58 (1996) (involving the British Board of Film Classification’s refusal to grant a distribution certificate for video work, entitled Visions of Ecstasy, because it was considered blasphemous)); Casado Coca, 285 Eur. Ct. H.R. at 21, para. 55. 123 124

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makes regulatory powers necessary.”129 The Court insisted that this did not exclude European supervision, “especially as such regulations must never entail a breach of the principle of pluralism, conflict with the other rights enshrined in the Convention, or entirely negate the freedom to manifest one’s religion or belief.”130 Applying these general remarks to the case of Ms. S¸ahin, the Court assumed that its task was confined to determining whether the reasons given for the interference were relevant and sufficient and whether the measures taken were proportionate to the aims pursued.131 The interference was based on two principles: secularism and equality. Also pertinent was the 1989 judgment of the Turkish Constitutional Court, stating that secularism in Turkey was the guarantor of democratic values, that freedom of religion was inviolable, and citizens were equal before the law.132 The Court added that to defend these values and principles, restrictions could be placed on freedom to manifest one’s religion.133 The emphasis placed in the Turkish constitutional system on women’s rights and gender equality also were invoked.134 The S¸ahin judgment kept in mind, in the Turkish context, the impact that wearing a symbol presented or perceived as a compulsory religious duty may have on those who choose not to wear it.135 The protection of the rights and freedoms of others and the maintenance of public order were legitimate aims in a country where the majority of the population adhere to the Islamic faith.136 This remained crucial for citizens who profess “a strong attachment to the rights of women and a secular way of life,” especially if the religious symbol begins to take on political significance.137 The Court “does not lose sight” of attempts by extremist political movements to impose on all society their religious symbols and conceptions.138 Secularism was thus the paramount consideration underlying the ban on wearing religious insignia in universities where the values of pluralism, respect for the rights of others, and equality of men and women were being taught.139 The Court pointed out that in Turkish universities generally, practicing Muslim students are free to perform their habitual religious duties, and the

129 130 131 132 133 134 135 136 137 138 139

S¸ahin, at para. 102. Id. Id. at para. 103. Id. at para. 105. See also para. 36. Id. Id. at para. 107. Id. at para. 108. Id. Id. Id. at para. 109. Id. at para. 110.

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universities treat all forms of dress symbolizing or manifesting a religion or faith equally by barring them from university premises.140 The fact that some universities did not apply the rules rigorously did not mean the rules were unjustified, nor did it mean that those universities waived their regulatory power.141 With regard “in particular to the margin of appreciation left” to each state, the University of Istanbul’s regulations were justified and proportionate to the aims pursued, and “necessary in a democratic society.”142 The Court held that “consequently, there has been no breach of Article 9 of the Convention.”143 The Court established that no separate question arose under the other provisions referred to by the applicant, namely Article 2 of Protocol 1 and Articles 8, 9, 10 and 14 of the Convention.144 VI. Evaluation of the Judgment The S¸ahin judgment raises serious questions. How wide is the margin of appreciation or discretion of a state? How far can it be applied when the issue is observance of generally accepted principles of international law incorporated into worldwide and regional instruments using identical wording? Has the Court been consistent with its own case law quoted in the S¸ahin judgment? Did the Court thoroughly substantiate its assertion that the use of the headscarf by Ms. S¸ahin on the University of Istanbul’s premises implied a serious risk of disrupting public order or affecting the rights of others? Would the Court have granted the same margin of discretion to a state with an official religion that decided to ban the use of symbols proclaiming atheism or agnosticism or adherence to a differing faith? Is the Court’s approval based on the margin of appreciation principle of an absolute ban at all educational levels, including universities, helpful in the construction of a European pluralist, equalitarian, and tolerant legal system? Of course, some of these questions go beyond the purely legal issues, but some crucial and strictly legal problems are involved, mainly the reach and meaning of the freedom to manifest one’s religion or beliefs. This freedom, as proclaimed by all the basic human rights instruments concerning freedom of religion or belief, can only be subject to limitations prescribed by law and necessary in a democratic society for the interests of public safety, the protection of public order, health, or morals, or the protection of rights and freedoms of 140 141 142 143 144

Id. at para. 111. Id. at para. 112. Id. at para. 114. Id. at para. 115. Id. at para. 116–117.

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others. The freedom to manifest a religion or belief can be exercised alone or in community with others; in public or in private; and in teaching, practice, worship, and observance.145 Arcot Krishnaswami, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, pointed out that it safely may be assumed that the Universal Declaration on Human Rights intended to embrace all possible manifestations of religion or belief within the terms “teaching, practice, worship and observance.”146 With regard to the prohibitions or limitations on the wearing of symbols associated with a religion or belief, it would be difficult to formulate a rule of general application, “even though it is desirable that persons whose faith prescribes such apparel should not be unreasonably prevented from wearing it.”147 “Desirable” and “unreasonably” are relative notions that strengthen the principle of the margin of appreciation, but it is necessary to see to what extent the European Court has applied it consistently. In the controversial Kokkinakis case,148 concerning a Jehovah’s Witness who was arrested more than sixty times for proselytism over a 48 year period,149 the nine-judge chamber decided that Kokkinakis’ conviction under the Greek anti-proselytism law violated his right to manifest his religion or belief. The Court was divided—six to three—over whether the case raised a question under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court recognized the existence of a margin of appreciation subjected to European supervision and stated that it must look at the impugned judicial decisions against the background of the case as a whole.150 This included the presence of a pressing social need, proportionality, and the necessities of a democratic society.151 In his concurring 145 See Universal Declaration of Human Rights, art. 18, G.A. Res. 217 (III), U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948); International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 18, 999 U.N.T.S. 171; Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, art. 1, G.A. Res. 36/55, U.N. GAOR, Supp. No. 51, at 171, U.N. Doc. A/36/51 (1981); European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, art. 9, 312 U.N.T.S. 221; American Convention on Human Rights, opened for signature Nov, 22, 1969, art 12(3), 1144 U.N.T.S. 123. 146 ARCOT KRISHNASWAMI, STUDY OF DISCRIMINATION IN THE MATTER OF RELIGIOUS RIGHTS AND PRACTICES 17 (1960). 147 Id. at 33. 148 Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) 1 (1993). See above, chapter on Proselytism. Also, T. Jeremy Gunn, Adjudicating Rights of Conscience Under the European Convention on Human Rights, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES 305 (Johan D. van der Vyver & John Witte, Jr. eds., 1996). 149 Kokkinakis, 260 Eur. Ct. H.R. at 8, para. 6. 150 Id. at 18, para. 35. 151 Id. at para. 36.

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opinion, Judge Pettiti dealt with the limits on the exercise of freedom of religion and conscience—limits which should involve coercion, abuse of rights in a way that infringes the rights of others, and manipulation by methods leading to a violation of conscience.152 Judge Pettiti referred to permissible limits on proselytism,153 but the same applied in general to the limits of manifesting religion through the use of non-provocative symbols, particularly when they do not disturb public order or the normal functioning of the institution in which they are exhibited. Dissenting in Kokkinakis, Judge Martens stated “the rising tide of religious intolerance makes it imperative to keep the powers of the State in this field within the strictest possible boundaries.”154 This statement is certainly applicable to restrictions on the freedom to manifest religious convictions peacefully. Criticizing the Kokkinakis ruling, T. Jeremy Gunn claims the Court made “no effort to understand or interpret the scope of the fundamental right to manifest a belief.”155 The Kokkinakis decision exemplified the failure to take rights of conscience seriously and required governments to impose less restrictive burdens on manifestations of freedom of religion and conscience.156 In Kokkinakis, however, the Court limited the margin of appreciation of the State; in S¸ahin, the same Court fully applied the rule on the margin of appreciation. In S¸ahin, the Court mentioned its decisions in Manoussakis and Others v. Greece157 and the case of Cha’are Shalom ve Tsedek v. France.158 In Mannoussakis, the Court emphasized that in delimiting the extent of the margin of appreciation, it was necessary to consider what was at stake; in this case, the need to ensure that true religious pluralism was an inherent feature of a democratic society.159 In Cha’re Tsedek, the issue was the right of a minority ultra-orthodox Jewish group of 40,000 members to conduct its own ritual slaughter in conformity with its views, which were different from those of the Consistorial Association of Paris, representing a majority of the 700,000 Jews living in France.160 A dissenting minority of seven judges, including the future President of the Chamber in S¸ahin, Sir Nicolas Bratza, thought a similar reasoning to Manoussakis was applicable.161 Withholding approval from the

Id. at 26–27 (Pettiti, J., concurring in part). Id. 154 Id. at 38, para. 16 (Martens, J., dissenting in part). 155 Gunn, supra note 148, at 322–23. 156 Id. at 323, 328. 157 Manoussakis and Others v. Greece, 1996-IV Eur. Ct. H.R. 1364 (1997). 158 Cha’are Shalom Ve Tsedek v. France, 350 Eur. Ct. H.R. 233, 265 (2000). 159 Manoussakis, 1996-IV Eur. Ct. H.R. Rep. at 1364. 160 See generally Cha’are Shalom, 2000-VII Eur. Ct. H.R. Rep. 161 Id. at 266 (Bratza, Fischback, Thomassen, Tsatsa-Nikolovska, Pantîru, Levits, and Traja, J., dissenting). 152 153

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minority association, which was granted to the Consistorial Association, conferred an “exclusive right to authorise ritual slaughters” and “amounted to a failure to secure religion pluralism or to ensure a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”162 It is easy to see in the dissenting minority opinion a contrary view to one that gives total weight to the margin of appreciation, failing to secure religious pluralism. The same can be said with regard to S¸ahin. The Court did not assert that Ms. S¸ahin, by wearing the headscarf, had disrupted public order, intended to proselytize in a forbidden way in the classroom, or indulged in political propaganda. Neither did it approach the governmental and university bans from a general human rights perspective. Furthermore, the Court did not take advantage of its prerogative to supervise domestic legislation to compare the social risk involved in using a religious symbol on the university campus with the blow inflicted to the freedom to manifest religion by the comprehensive prohibition. It appeared in S¸ahin that the Court was loyal to its acceptance of the margin of appreciation principle, but gave up the right to evaluate whether the principle was fully compatible with the rights proclaimed in the Convention and global international texts on freedom to manifest religion. The judgment only summarily stated European countries were divided on the issue of the Islamic head covering. There was no analysis on the differing opinions, nor any comparison of the Turkish policy with that of France, where another comprehensive ban recently entered into effect, although not at the university level.163 The Court might have examined the reach of French legislation in force since February 2004, which was quite different from the Conseil d’Etat’s, France’s highest administrative tribunal, 1989 ruling, which declared permissible the wearing of religious symbols in school as long as they were not “ostentatious” and did not constitute “an act of intimidation, provocation, proselytizing, or propaganda; threaten the dignity and freedom of students, or other members of the educational community, or disrupt the school’s normal functioning.”164 The Conseil d’Etat ruled that wearing a headscarf was not automatically ostentatious and expulsion of a student for wearing it was permissible only if it involved a threat to public order.165 The comparison with France is certainly desirable since the Turkish notion of a

Id. S¸ahin v. Turkey, App. No. 44774/98, para. 54 (Eur. Ct. H.R. June 29, 2004), available at http://www.echr.coe.int/Eng/Judgments.htm. 164. See Beller, supra note 11, at 584. 165. Id. at 585. 162.

163.

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secular (laik) state has possible roots in French secularism.166 In S¸ahin, the Court virtually ignored the difference between public schools and the university environment. Özlem Denli writes that advocates of the Turkish ban dismiss the idea that: [V]eiling may simply be a perfectly plausible interpretation of Quaranic dictates without any hidden political agenda. They have never assumed the burden of demonstrating a connection between the use of the headcover and illegal or subversive activity. The official treatment simply ideologizes the use of the head cover to the point of completely disregarding its significance as a tenant of individual religiosity.167

John Witte Jr., head of the Center for the Study of Law and Religion at Emory University, notes: Freedom to manifest or exercise one’s religion – individually or collectively, publicly or privately – may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The latter provision is an exhaustive list of the grounds allowed to limit the manifestation of religion. Legislatures may not limit the manifestation of religion on any other grounds.168

Witte further adds: The requirement of necessity implies that any such limitation on the manifestation of religion must be proportionate to its aim to protect any of the listed state interests. Such limitations must not be applied in a manner that would vitiate the rights guaranteed in Article 18. . . . [A] law burdening the exercise of religion must be in service of a compelling state interest and use the least restrictive alternative to achieve that interest.169

Witte also notes that “international human rights norms demand not only general toleration of religious minorities but special solicitude for their religious needs that often are not accommodated in majoritarian laws and policies.”170 VII. Conclusion From a purely human rights angle, one is tempted to say that the European Court of Human Rights reasserted its respect for the margin of appreciation of states, but ignored the individual right to manifest bona fide religious convictions S¸ahin, at para. 54. Denli, supra note 36, at 510. 168 JOHN WITTE JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT, 237 (2d ed. 2005). 169 Id. 170 Id. at 244. 166 167

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and did not attempt to show how a total prohibition of such manifestations, at all levels in the educational sphere including universities, was necessary to protect a democratic society. From a secular angle, the issue of the headscarf may be seen as a test case regarding the capacity of secularism to be tolerant with such individual manifestations when there are no signs of hidden political intentions. If authorities see individual, dissenting behavior in a secular, democratic, and laicist regime as being a threat to the system, and if so prescribed by law, the state may impose limitations. In any case, the burden of proof is on the state. It has a margin of appreciation which cannot go beyond the limits of international and human rights law. If it does, the international community has the right to intervene, as the European Court of Human Rights has declared it in the past. Secularism cannot be intolerant.

CHAPTER ELEVEN

STATE AND RELIGIOUS COMMUNITIES: THE CASE OF ISRAEL

The singularity of Israel as a nation-making case is quite clear. The 19th and 20th centuries have witnessed state-building developments that changed the political map of the world. None of them was similar to the dramatic, sometimes tragic, process that culminated, on May 14, 1948, in the creation of the sovereign State of Israel. The State defines itself, following language used in the 1947 United Nations resolution on the partition of Palestine,as a Jewish and democratic state,1 and was conceived, born, and built as a polity commited to a purpose. That purpose, Zionism,2 aimed at changing the life conditions of the world-scattered community called the Jewish people or nation, by establishing, on more or less the territory on which two millennia ago a Jewish state existed, a modern, independent state, with a Jewish majority. The State proclaimed in 1948 by David Ben Gurion, following the trauma of the Holocaust suffered by the Jewish people during World War II, contains a multi-ethnic, multi-religious and multi-cultural population. The majority of it shares the feeling of belonging to a single nation, in which Judaism as a religion played a central role, but a large minority or, rather, several minority groups, consider themselves very different – in terms of ethnicity, religion, culture, language, and national origin – from the majority, which is fully conscious of such difference and its legal implications.3 As pointed out by Justice Englard, “The establishment of the State of Israel marked a fundamental change as regards Jews now no longer a minority religious community, but preservation of the status quo became a matter of concern for the other religious communities.”4

1 On the complex nature of the legal regime of Israel, see, i.a., INTRODUCTION TO THE LAW OF ISRAEL (Amos Shapira and Keren C. DeWitt-Arar, eds.), 1995, a comprehensive and comparative-oriented summary of the Israeli law and legal thought. 2 On Zionism, generally, Walter Lacqueur, A HISTORY OF ZIONISM, 1972. 3 There is a vast literature on the Israeli society, as it consolidated in less than six decades. Particularly relevant to our subject are David Kretzmer, THE LEGAL STATUS OF THE ARABS IN ISRAEL, 1990; Sammy Smooha, ISRAEL, PLURALISM AND CONFLICT, 1978; Izhak Englard, RELIGIOUS LAW IN THE STATE OF ISRAEL, 1975. I have attempted to summarize the character of the majority-minority relationship in an article on “Affirmative Action in Israel”, in The Rockefeller Foundation, INTERNATIONAL PERSPECTIVES ON AFFIRMATIVE ACTION, 1982. 4 Englard, op. cit., supra, at 13.

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In 2005 the total population of Israel was about 6.900.000. The Jewish majority was of 5.260.000, namely about 80%. As to religion, at the end of 2003 there were 1.072.500 Muslims; the total number of Christians was 142.400, among them 115.700 Arab Christians and 26.700 “other Christians”; the Druze were 110.800; persons described as of “Religion unclassified” were 254.800. These figures are based on estimates – the last census year was 1995 – and the population is classified by “religion and population group”. They do not reflect necessarily self-definition or religious convictions.5 The “labyrinthine” relationship between religion and state in Israel, “founded as a home for the Jewish people, in which freedom of religious worship and conscience would be guaranteed to members of all faiths”, is authoritatively described in the Initial and First Periodic Report on the implementation of the 1966 International Covenant on Civil and Political Rights, submitted in 1998 by Israel to the United Nations Human Rights Committee.6 In the chapter devoted to the implementation of Article 18 of the Covenant,7 the Report points out that the result of history, political expediency, party politics, the lack of a constitution which specifically deals with freedom of religion, and the broad power of the Knesset (the Israeli Parliament) to legislate on religious matters was “a patchwork of laws and practices that are not easily susceptible to generalization.”8 That result can be described as a permanent attempt to maintain a status quo, or a politics of compromise and accommodation to the immediate needs of a beleaguered state, prevented by war, terrorism, international pressures, and internal controversy, frequently intermingled with emotion and historical memories, from being able to elaborate, freely and objectively, a coherent and reasonable legal system regarding freedom of religion and belief. Despite the references, in the Declaration on the Establishment of the State of Israel 9 and of the Basic Law: Human Dignity,10 to a “Jewish state” and to a “Jewish and democratic state”, respectively, Israel does not have a formally established religion, nor has the State adopted a system of separation between religion and state. What was achieved until presently is “a sort of hybrid between non-intervention in religious affairs, on the one hand, and the interpenetration of religion and government in several forms, on the other, most 5

These figures are based on the Government Office of Statistics reports. The Report, authored by Richard D. Bardenstein, was published on June 1, 1998, with a preface by the general directors of the Ministries of Justice and Foreign Affairs, and should therefore be seen as an official statement of the State policies concerning religion. For the quotation, p. 223. See, also, the Second Periodic Report of Israel, CCPR/C/ISR/2001/2, page 49. 7 Supra Report, note 6, at 223. 8 Loc. cit., page 223–224. 9 1 L.S.1, 3 (1948). 10 For its English text, 26 Isr. L. Rev. 248 (1992). 6

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notably by legislation establishing the jurisdiction of religious courts of the different faiths in specified matters of ‘personal status’,by government funding of authorities which provide services to several of the religious communities,11 and by a series of legal institutions and practices which apply Jewish religious norms to the Jewish population.”12 This is valid even for Jews who define themselves as not religious or not practicing, but do consider themselves as Jews and are seen as such by the authorities. The official Report referred concludes that “Israel has been quite successful in guaranteeing the freedom of religious practice and the use of sites holy to the three monotheistic faiths, particularly for the non-Jewish communities”, but “it is more difficult to claim that ‘freedom from religion’ is fully protected, particularly for the Jewish population.”13 This seems a fair appraisal of the situation concerning freedom of religion in Israel: not a theocracy; wide freedom of religious practice and manifestation for all faiths; a policy of constant compromise as far the Jewish majority is concerned, with limitations for non-Orthodox and non-religious Jews, mainly in the area of family law and registration norms.14 When it ratified the 1966 Covenant on Civil and Political Rights, Israel entered a reservation with regard to matters of personal status, governed in Israel by the religious law of the parties concerned. There seems to be no hope that, in the foreseeable future, Knesset legislation may produce a major change, because of the political system. It was up to the judiciary to adopt case law intended to bring the country closer to the minimum international standards concerning religion or belief.15 There is still a long way to go, in this respect. The Religious Communities To understand the system that developed in Israel, it is indispensable to examine the regime established during the Ottoman period (1517–1917) and under the British Mandate (1918–1948). Under the Ottoman’s rule, the dominant 11

On the meaning of the term “religious communities” in Israel, see below. Report cited in note 6, at 224. See also Aviezer Ravitzky, IS A HALAKHIC STATE POSSIBLE? THE PARADOX OF JEWISH THEOCRACY, Israel Democracy Institute, Jerusalem, 2004. 13 Report cited in note 6, at 224. 14 On the need for constitutional regulation – as known, Israel has not a formal, written and integrated Constitution – see the contributions of various authors to TOWARDS A SOLUTION OF THE CONSTITUTIONAL APPROACH TO THE RELIGION AND STATE RELATIONSHIP (in Hebrew), papers published by the Israel Democracy Institute following a conference in Caesarea, 2001. 15 On such standards, see Natan Lerner, “The Nature and Minimum Standards of Freedom of Religion or Belief ”, in FACILITATING FREEDOM OF RELIGION OR BELIEF: A DESKBOOK (Tore Lindholm, W. Cole Durham, Jr., Bahia G. Tahzib-Lie, eds.), 2004. 12

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Muslim society permitted non-Muslim communities to enjoy autonomy in the conduct of their communal affairs, mainly of a religious character. These were the millets, under the authority of religious leaders. In general, the Shari’a, the Islamic law, applied to all issues of personal status concerning Muslims, such as marriage, divorce, succession and other aspects of family law. The recognized non-Muslim communities had their own courts in the area of personal status, although the extent of their jurisdiction was based on the rights granted to each community, which was not the same in all cases. Such jurisdiction normally covered marriage, divorce, maintenance, succession, education and charitable institutions. Foreigners were not submitted to the Ottoman law and were subject to consular jurisdiction. The British Mandate established by the League of Nations over Palestine did not introduce changes in the system. Under the 1922 Palestine Order in Council (amended in 1939),16 ten communities were recognized: the Eastern or Orthodox, Latin or Catholic, Gregorian Armenian, Armenian Catholic, Syrian (Catholic), Chaldean (Uniate), Greek Catholic Melkite, Maronite, Syrian Orthodox, and Jewish, known as Knesset Israel. As under the Ottoman rules, Muslims were not considered a “recognized community”, although the Muslim courts were in charge of matters of personal status and had also jurisdiction over foreign nationals subjected to Muslim religious jurisdiction. All other foreign nationals were under the jurisdiction of secular District Courts, except in the cases when the foreign national expressed preference for a religious court. In 1939, the British authorities adopted a provision17 concerning the marriage of persons who were neither Muslims nor members of a religious community, but this provision was never implemented under the Mandate.18 Its application could have solved the problem of individuals not belonging to any religious community or who opted out of them or who were members of a religion not formally recognized in the country. These persons were consequently unable to marry, unless they joined a recognized religious community, a situation that also exists in the State of Israel today. The State of Israel preserved the status quo, seen as a need to avoid conflicts between the secular political parties and the religious ones. Still, such conflicts erupted from time to time and prevented progress in the constitutional regime. The religious law is the rule in matters related to personal status, and the jurisdiction of the recognized religious communities is maintained.

16 17 18

For its text, R.H. Drayton, THE LAWS OF PALESTINE, 1933, III, 2569. Article 65A of the Palestine Order in Council. See Report, note 6, at 225.

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The most important change concerns the Jewish population. Jewish communal religious institutions are now official state bodies, exercising authority on all Jews of the country, irrespective of their religious, or non-religious, views. Agnostic or atheistic Jews that wish to marry have to do it in a religious ceremony conducted by an Orthodox authority. The ways of avoiding it are not easy: the couple can be married by civilian authorities abroad, in an act that will be taken note of by the Population Registry but will be ignored by the rabbinical authorities, or sign a civil contract which has legal effects but will not be recognized by the religious authorities. Many Israelies will prefer not to be in peace with their own convictions but ensure recognition by the Orthodox establishment for their children.19 Attempts to establish at least an alternative system for those who cannot, or do not wish to, undergo a religious marriage were unsuccessful. The Israeli Ministry of Interior proposed to recognize and register marriages performed at foreign consulates by persons who are described as without religion or who belong to non-recognized communities. Such a procedure existed in the past, but was discontinued in August 1995, at the request of the Ministry of Foreign Affairs. In April 2005, The High Court of Justice asked the Prime Minister to inform if he authorizes the renewal of the procedure. For the first time, the State has officially recognized a consular divorce proceeding that took place at the Russian Embassy.20 All this applies of course to divorce, and this created particular disabilities for Jewish women whose husbands deny them a divorce, or are absent or are prevented because of illness from divorcing them, as well as for Muslim women, affected by Shari’a law. Under the State, three additional religious communities have been recognized: the Druze in 1957 and 1995; the Evangelical Episcopal Church in 1970; and the Baha’i in 1971. Muslim and Druze religious courts were established. Other religious communities operating in Israel, but not recognized formally, also exist. Such are the Anglicans, the Church of Scotland, the Lutherans, Unitarians, Baptists, Quakers and others. Despite the decrease in the proportion of Christians, there are in Israel several dozen churches and denominations and among some of them there are from time to time conflicts, and even acts of violence,regarding jurisdiction on sacred sites.21 They all enjoy 19 It is impossible to determine with precision who are the Jews considering themselves as “totally non-observant.” Many that declare to be such do, however, observe some religious precepts, mainly circumcision, “bar mitzvah” celebrations and religious weddings, although they would claim that their motivation is not religious. Of course, the historic overlapping of Jewish religion and nation has to be seen as the explanation for this apparent contradiction or confusion between identification and practice. 20 See, Haaretz, April 6, April 15 and May 5, 2005. 21 Such conflicts reached the Courts. On the Christian communities and churches, generally, Saul A. Colbi, CHRISTIANITY IN THE HOLY LAND, Tel Aviv, 1969.

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full religious freedom and rights, including the right to establish institutions, but they do not have courts with jurisdiction over their members. Although they have certain taxation benefits, they do not receive government funding. The recognized non-Jewish communities receive considerable less financial support for their religious services and sites, as compared to the Jewish religious institutions. There have been proposals and steps to the effect of raising the funding for some of the communities, but the results were not satisfactory.22 With the abolition of the Ministry of Religious Affairs and the dispersion of its services in various ministries, the situation may change. There are plans to create an overall Christian body that should represent the total Christian community vis-a-vis the State. On April 13, 2005, a conference of the Evangelical churches took place in Shfar-Am, on the same subject. The establishment of a body encompassing the four Evangelical communities that exist in Israel but are not “recognized” communities was proclaimed. It will aspire to overcome the practical difficulties that Evangelists confront, in issues like tax exemption, visas for priests, and similar. One spokesman pointed out that the Evangelists suffer from the lack of norms regulating family relations and of their own religious court.23 It is adequate to mention here the 1993 Fundamental Agreement Between the Holy See and the State of Israel, that led to diplomatic relations between both parties, and is discussed below.24 The Agreement, and negotiations still being conducted, aim, i.a., at ensuring the rights of the Catholic Church in the State of Israel, including the Church’s sacred places and institutions. The pending negotiations concern also Catholic legal personality in Israeli law. When listing the religious communities in Israel, recognized and not recognized, it seems necessary to refer to the situation of the non-Orthodox branches of the Jewish religion, Conservative, Reformed and Reconstructionist. They are not recognized as separate communities and, while members of those branches are free to practice Judaism in conformity with their own conceptions and traditions, their institutions do not enjoy official recognition, their rabbis cannot officiate at marriages between Jews and act as marriage registrars. Their individual members, as all Jews in the country, even those not practicing, or who declare themselves as non-believers, are, as said, submitted to Orthodox rabbinical jurisdiction in matters of personal status.25 22 On the issue of funding, see Asher Maoz, Religious Human Rights in the State of Israel, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE – LEGAL PERSPECTIVES (eds. Johan D. van der Vyver and John Witte, Jr.), The Hague 1966, at 349 ff., specially 366–373. 23 See, Jackie Khoury, Haaretz, April 17, 2005. 24 See also, Silvio Ferrari, Concordats were born in the West, LA PORTA D’ORIENTE, V, 12/13, 1994. 25 See, in this respect, David Kretzmer, Constitutional Law, in INTRODUCTION TO THE LAW OF ISRAEL, supra, note 1, at 48.

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Religion in the State of Israel The relationship between the State and religious communities must be seen in the light of the place of Jewish religion in the State, an outcome of the mainly secular Zionist movement. That State is neither a theological state nor a completely secular political entity. It is neither free from the influence of the Halakha ( Jewish religious law), nor does religious law play in it a predominant role, except in the area of personal status. The Rabbinical courts have jurisdiction over all Jewish inhabitants in matters of marriage and divorce, and settle these matters on the basis of Halakha. The Chief Rabbinate is a State institution and so are, at the local level, the Religious Councils. State religious schools, existing outside the general education system, are funded by the State. The now disbanded Ministry of Religious Affairs had the power, since the establishment of the State, to regulate and fund the religious needs of the Jewish and the other religious communities. As to legislation, there have been controversies concerning issues such as the Sabbath and Jewish holidays, dietary laws, army chaplancy, conversion, burial, and Orthodox exclusivity or monopoly at the expense of the other trends – Conservative, Reform and Reconstructionist – and, certainly, the secular or laicist approach to Jewish life. One major balancing feature is the fact that all actions of state institutions or organizations regulated by state legislation are subject to review by the High Court of Justice, even in matters related to religious law. The secular law is binding for the whole population. The tribunals have had to solve several problems.26 Until this very day Israel has not a full written Constitution. The starting point of its legislation concerning state and religion is a provision from the Mandate era, Article 83 of the Palestine Order in Council, 1922. Although it does not prevail over any law of the Knesset, it is important and should be quoted: “All persons in Palestine – “Palestine” is of course the name of the whole territory under Mandate – shall enjoy full liberty of conscience,27 and free exercise of their forms of worship subject only to the maintenance of public order and morals. Each religious community recognized by the Government shall enjoy autonomy for the internal affairs of the community subject to the provisions of any Ordinance or Order issued by the High Commissioner.” 26 See Report, supra note 6; also, generally, Asher Maoz, supra note 22; D.E. Arzt, “Religious Freedom in a Religious State: The Case of Israel in Comparative Constitutional Perspective”, 9 Wis. Int’l L. J. 1 (1990); Amnon Rubinstein, CONSTITUTIONAL LAW (in Hebrew), 5th. ed., pp.147–156; Shimon Shetreet, Some reflections on Freedom of Conscience and Religion in Israel, 4 IYHR (1974), at 194. For a critical, religious oriented, approach, Simha Meron, Freedom of Religion as Distinct from Freedom from Religion in Israel, 4 IYHR (1974), at 219. 27 The Israel Courts have clarified that “freedom of conscience” includes freedom of religion. See C.A.450/70, Rogozinski v. State of Israel, 26(1) P.D. 129, 134.

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Other provisions of the Order in Council nullified limitations on freedom of religion and worship and prohibited discrimination on grounds, i. a., of religion.28 After the establishment of the State, freedom of religion and conscience was guaranteed by the Declaration of Independence adopted on May 14, 1948.29 The Declaration, not legally binding originally, was upgraded in 1992 by the Basic Law: Human Dignity and Freedom, providing that fundamental human rights shall be interpreted “in the spirit of the principles of the Declaration of Independence”.30 The Basic Law did not mention religious freedom specifically, and the Knesset did not adopt any fundamental legislation guaranteeing freedom of, and from religion. This does not mean that Israel has no legislation at all in the field of religion and its relations with the State. It means that the political system in Israel, based on compromise, accommodation and status quo, was unable either to reach consensus or to impose by a majority in the Knesset general legislation dealing with the place of the Jewish religion in the State. This solution, or absence of a solution, may be critiziced or praised according to the views inspiring stands in this respect. Israel has penal legislation intended to ensure freedom of worship and access to holy places. The Penal Law, 5737–197731 punishes desecration of places of worship or burial, or disruption of funerals, or publication and uttering of material intended to outrage the religious feelings or belief of any person. Bigamy is forbidden, also for those whose religious law does not carry such a prohibition. The Protection of Holy Places Law, 5727–1967 has the purpose of protecting such places, without requiring criminal intent. Also the Antiquities Law, 5738–1978 has a similar aim. The State avoided intervening in disputes between different denominations concerning holy places. One of the sites that created great difficulties and controversy is the Temple Mount, holy to Jews and Muslims and which is administered by the Muslim Wakf. Access of Jews to it is forbidden under religious law, with some exceptions. On Fridays, tens of thousands of Muslims use to pray on the Mount, although on some occasions restrictions have been imposed for security reasons. Another very important Jewish holy place is the Western Wall, with regard to which,and to the right to conduct services not strictly following the Orthodox customs, there have been conflicts. Civil law norms have to be applied by religious courts when deciding property questions in cases of divorce.32 All persons have the right to observe days of rest and holidays in accordance with their faith, provided a weekly day of 28 29 30 31 32

See Article 17 of the Order in Council. For its text, 1 L.S.I. For its text, 1 L.S.I. 3 (1948). For the text of the Basic Law, 26 Isr. L. Rev. 248 (1992). L.S.I. (Special Volume) 1 (1977). H.C.J. 1000/92, Bavly v. Great Rabbinical Court of Appeal, 48(2) P.D. 221.

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rest is granted, although there are some exceptions when essential public services are involved. There have been problems with regard to the obligation to observe the Jewish Sabbath by closing activities. A 1987 decision of a Jerusalem Court declaring ultra vires the prohibition for cinemas to function on the Sabbath33 was followed by a law (Municipalities Ordinance Amendment No. 40, 5750–1990) giving municipalities authority to consider religious norms with regard to activities on the Sabbath. There are restrictions on public transportation on the Sabbath, but not in all cities. The Ben-Gurion Airport is open, but Israeli railways do not operate. Religious needs are taken into consideration with regard to the closing, on Sabbath and holidays, of streets and roads in some places where there is an Orthodox majority, with due respect for the freedom of movement of the non-religious population.34 The religious communities are in charge of the management of cemeteries. This created problems for persons who do not belong to any community or asked not to be buried with a religious ceremony. Since 1996 the matter is regulated by the Right to Alternative Civil Burial Law, intended to ensure the right to be buried according to the will of the person or his family, and to that effect alternative cemeteries should be established, and some already exist. The Supreme Court denied the Orthodox Burial Society the right not to permit non-Hebrew inscriptions or the use of Gregorian dates on headstones in Jewish cemeteries.35 In 2000, the High Court of Justice ordered the authorities to ensure equality in the allocation of funds for Jewish and Arab cemeteries.36 There are also some difficulties concerning kashrut, or Jewish dietary norms. Such norms are observed in public institutions, the army, hospitals, government offices and schools, except for the non-Jewish cities or villages. The sale of pork and the import of non-kosher meat also created problems. Hotels and restaurants have been refused kashrut certificates by the Rabbinate for being open on the Sabbath. The Supreme Court declared that the religious authorities do not have the right to deny such a certificate to a hall where a bellydancer performed.37 A seldom applied Law of 1986 prohibited to sell or display leavened bread or other retricted food during the Passover holiday in Jewish towns or neighborhoods. Clearly, most difficulties affect Jews who belong to the non-Orthodox branches of the Jewish religion or secular, non-observant Jews. Until this very day, there is a constant tension in this respect, and one of its most recent 33 34 35 36 37

Cr.F. ( Jerusalem) 3471/87, State of Israel v. Kaplan et al., P.M. 5748, vol.2, 265. See, H.C.J. 5016/96, Horev v. Minister of Transportation, 97 Takdin 421 (1997). C.A.6024/97, Shavit v. Chevra Kadisha Rishon L’Zion. H.C.S. 1113/99, Adalah et al. V. Minister of Religious Affairs. Raskin v. Jerusalem Religious Council, 44(2) P.D.673.

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manifestations was the issue of conversion into Judaism, or change of community membership. Conversion from one religion into another is, of course, an essentially personal matter. Freedom of religion and conscience includes the right to leave a religion and adopt another one. The issue of conversion engendered many difficult problems when the United Nations discussed and adopted the 1966 Covenant on Civil and Political Rights and the 1981 Declaration on Religious Intolerance and Discrimination Based on Religion or Belief. In Israel, the right to convert exists and was clearly recognized by the Supreme Court in the well known case Pesarro (Goldstein) v. Minister of Interior.38 This case concerned Jews, but has a more general significance. The change of religion will be registered in the Population Registry. However, regarding the personal status, religious law and the religious authorities may question the correctness of the conversion into Judaism. The controversy in this regard is still very intense. On March 30, 2005, the Supreme Court, in a rare composition of 11 judges, and in a case pending six years, decided that non-Jews living legally in Israel will be able to be converted to Judaism by Reform and Conservative religious courts overseas, and their conversion will be properly registered by the State authorities.39 Orthodox spokesmen expressed outrage at the ruling, while a Reform official said that his movement will now petition to the High Court, to press a ruling to the effect that nonOrthodox rabbis would be able to convert non-Jews, also in Israel. The next question is whether conversions authorized by Reform and Conservative rabbis in Israel will be recognized when the converts apply for citizenship under the Law of Return.40 Even this will not be the end of the dispute, since, ultimately, the Conservative and Reform struggle for equal status aims at the recognition of marriages conducted by their rabbis, presently an Orthodox monopoly. Conclusions In conclusion, the following remarks summarize the complexities of the relationship between the State and religious communities in Israel. 1) Israel is a multi-religious society, where the large majority of the population defines itself as Jewish and where about 20% are minorities, the largest of them Arab Muslims; 38

H.C.J. 1031/93. See, Israeli press of April 1, 2005. 40 The 1950 Law of Return (4 L.S.I. 114), as amended in 1969–1970, reflects more than any other law the singularity of the State of Israel. It cannot be discussed here, neither is it possible to saummarize some fascinant case law related to it and the definition of who is a Jew. See supra, note 1. 39

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2) Despite the profound changes that followed the creation of the State of Israel, the relationship between the State and its religious communities has its origin and roots in the Ottoman and British periods; 3) The State did not manage to complete a Constitution and the legal system regarding religious communities has to be characterized as hybrid and complicated. Because of external pressures and internal political needs, the system can be described as an attempt to keep a status quo based on compromise and accommodation; 4) In consequence, courts played and play a corrective and normative role; 5) There are presently 13 recognized religious communities and others that do not enjoy recognition. This has practical implications. An interesting development has been the signing of the Fundamental Agreement between the Holy See and the State of Israel, dealt with below; 6) The State is not a theocracy, and freedom of religion and worship is in general guaranteed. Religious interests of the different creeds are safeguarded. Freedom from religion is not secured and, at least as far as the Jewish population is concerned, the system does not reflect the present state of religious human rights. Israel ratified the main human rights treaties, but introduced reservations in order to maintain its system in the area of personal status and family law; 7) The main points of friction are within the Jewish community, in which Jewish Orthodoxy and the Rabbinate enjoy a virtual monopoly regarding personal status and family law. The other Jewish religious trends, as well as the secular sector, are struggling to bring about changes, and some results have been achieved. Still, coercion remains an issue for Jews who do not wish to be subjected to religious norms. Also members of the other communities suffer from limitations in this respect; 8) Even from a group rights perspective it seems necessary to make the Israeli system compatible with basic rights in the area of religious rights and freedoms, as recognized in international law.

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BILATERAL ARRANGEMENTS: THE HOLY SEE AND ISRAEL Introduction On 30 December 1993 a “Fundamental Agreement” was signed between the Holy See and the State of Israel.1 On 29 July 1992, a “bilateral permanent working commission” had been established by the parties, and the Agreement is the result of its works. Its main purpose is to provide, in the language of the preamble: “a sound and lasting basis” for the continuing development of the present and future relations between the Vatican State and the State of Israel, against the significant background of the “unique nature of the relationship between the Catholic Church and the Jewish people,2 and of the historic process of reconciliation and growth in mutual understanding between Catholic and Jews.” A major political consequence of the instrument would be the establishment of full diplomatic relations between both States (Article 14.2). We shall only discuss here the human rights provisions incorporated in the Agreement, but it seems unavoidable to mention its far-reaching religious and political implications. An expert in the field of Christian-Jewish relations, the Associate Director for Ecumenical and Inter-religious Affairs of the U.S. National Conference of Catholic Bishops, points out that the above quoted language is remarkable for an international document. “It is clearly theological rather than legal or diplomatic.” But, he adds, its several articles deal with the resolutions or concerns of principle and practical relations, “but are in no way theological. There was never a theological barrier, although there were and are significant Christian sensitivities regarding the Holy Places and the rights of the Christian communities in what Christians view as the ‘Holy Land’.”3 The Fundamental Agreement is thus a complex document, beyond the human rights law approach.

1 The agreement was ratified by the government of Israel on 20 February 1994. For its text. Justice 1. (Tel Aviv – Winter 1994) pp.18–20. 2 The Basic Law: Human Dignity and Freedom – 1992 describes the State of Israel as “a Jewish and democratic State.” This Basic Law was passed by the Knesset on 17 March 1992 and published in Sefer Hachukkim No. 1391 (1992). For an unofficial English text, supra, note 1. There are different views as to the meaning of the word “Jewish” in this context. In the light of the reference in the Agreement to “the Jewish people”, it seems superfluous to discuss if the term “Jewish State” has a religious, or a secular, or a combined meaning. 3 See, Eugene J. Fisher, “Jewish-Catholic Relations after the Fundamental Agreement”, in Interchange, 2, 2, Jerusalem (April 1994). For a Protestant comment, in the same issue, Petra Heldt,

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Since the creation of the United Nations, a wide spectrum of global and regional instruments intended to protect human rights has been developed. But not all human rights received the same treatment. Religious human rights, or human rights related to religion and beliefs,4 are among the protected rights, but no global obligatory treaty has been adopted in this sensitive area, the source of so many political struggles, wars, international and domestic, and human sufferance. In the absence of a specific convention, mandatory provisions regarding religious human rights are those contained in the Covenant of Civil and Political Rights, on the worldwide arena, and corresponding provisions in the respective regional human rights instruments.5 The Universal Declaration on Human Rights6 has been the direct precedent of the Covenant. A major development in this area has been the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed in 1981 by the General Assembly of the United Nations,7 the implementation of which has already originated considerable work on the part of United Nations bodies and officials.8 A draft convention is pending before the United Nations bodies, but the prospects of progress regarding its adoption seem weak. The difference in the approach to religious human rights as compared to other basic freedoms has induced commentators and observers to assert that the former had been neglected by the international community. This situation may be the consequence of the basic disagreement on the nature and extent of religious rights and freedoms, or of the circumstances prevailing in this period of history in the United Nations and other international organizations. In any case, alternative ways of action have been seen as necessary, and bilateral agreements between some States and the Holy See serve that purpose. Most of them are concordats between the Holy See and Catholic States, but a few cases also refer to the relationship between States and non-Catholic communities. Such are, for instance, the agreements between Italy and the

“The Fundamental Agreement Between the Holy See and the State of Israel – The Challenge for Protestants.” Rev. Heldt takes the view that privileges acquired by the Catholic Church will eventually be shared with the other churches in Israel. See also, Rafael Palomino, “El Acuerdo Fundamental entre la santa sede y el Estado de Israel” in Anuario de Derecho Internacional, Vol. XI, 1995, Navarra University, 237–273. 4 The word “belief ” follows the word “religion” in several basic human rights instruments to clarify that the respective provisions also cover the rights of non-believers such as free-thinkers, atheists or agnostics. It refers always to secular or non-religious beliefs related to religion. 5 For the Covenants, United Nations, Human Rights – A compilation of International Instruments, New York, 1993, pp. 8–41. 6 For its text, ibid., p. 1. 7 For its text, ibid., p. 122. 8 See, former chapters in this volume.

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Jewish community9 and those concluded between the Spanish government and the Evangelical, Jewish and Islamic communities.10 Religious rights provisions in the Agreement In Article 1, paragraphs 1 and 2, both States reaffirm their commitment “to uphold” the human right to freedom of religion and conscience, as set forth in the Universal Declaration of Human Rights and in other international instruments to which they are parties. The State of Israel recalls its Declaration of Independence. The Holy See recalls the Declaration on Religious Freedom of the Second Vatican Ecumenical Council, “Dignitatis Humanae,” and its Declaration on the Relation of the Church to nonChristian religions, “Nostra Aetate”.11 Article 2 of the Agreement deals with present manifestations of racism and religious intolerance, including anti-Semitism. The Holy See and the State of Israel “are committed to appropriate cooperation in combating such evils” and “in promoting mutual understanding among nations, tolerance among communities and respect for human life and dignity.” (paragraph 1). In paragraph 2, the Holy See reiterates “its condemnation of hatred, persecution and all other manifestations of anti-Semitism directed against the Jewish people and individual Jews anywhere, at any time and by anyone”. In particular the Holy See deplores attacks on Jews and desecration of Jewish synagogues and cemeteries, “acts which offend the memory of the victims of the Holocaust, especially when they occur in the same places which witnessed it.” The use of words such as “intolerance” and “hatred” requires clarification. While discrimination, on grounds of race or religion, is unquestionably prohibited and constitutes a clear legal figure, this is not the case with intolerance and hatred. The inclusion of these words in human rights instruments has created problems. The term “intolerance” is a key word in the 1981 United Nations Declaration on Religion, but its meaning is not clear enough. It describes a subjective attitude, feelings and emotions, and it is not easy to assess its legal implications.12 Similar is the case with “hatred”. Legislation and jurisprudence in some countries have dealt with this question, and the notion of “hate 9 See, Giorgio Sacerdoti, “Jewish Rights under a New Italian Concordat”, 12, Patterns of Prejudice 1 (1978), p. 26, and “New Developments in Group Consciousness and the International Protection of the Rights of Minorities”, 13, Israel Yearbook on Human Rights (1983), p. 116 and foll. 10 On Spain, Minsterio de Justicia, Libertad Religiosa (Normas Reguladoras), Madrid, 1988, and Ministerio de Relaciones Exteriores, Acuerdos entre España y la Santa Sede (1976–1979). 11 See, International Catholic-Jewish Liaison Committee, Fifteen Years of Catholic-Jewish Dialogue 1970–1985, Vatican City, 1988. 12 See former chapters in this volume.

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crimes” has developed into a special category of offenses affected by certain characteristics of the victim, such as its religion.13 Outbursts of violence in several countries in Europe have been seen as the result of racism, xenophobia and hatred based on religion. In the Agreement the use of these terms has to be related to the phenomenon of anti-Semitism. By Article 3, the State of Israel and the Church recognize each other a series of basic religious human rights. As explained in Article 13, the terms “Catholic Church” and “church” include the “communities and institutions” that belong to it. The term “communities of the Catholic Church” means the Catholic religious entities “considered by the Holy See as Churches sui juris and by the State of Israel as recognized religious communities”. Specifically mentioned in Article 3.2, and recognized by the State of Israel, are the rights of the Catholic Church to carry out its religious, moral, educational and charitable functions, to have its own institutions, and to train, appoint and deploy its own personnel in the said institutions or for the said functions to these ends. By Article 4, the State of Israel agrees with the Holy See on “the continuing guarantee of the freedom of Catholic worship.” Article 5 recognizes the interest of both parties in favoring Christian pilgrimages to the Holy Land, subjected to consultation and cooperation when coordination is needed. The right of the Catholic Church “to establish, maintain and direct schools and institutes of study at all levels”, exercised “in harmony with the rights of the State in the field of education”, is reaffirmed in Article 6. This is a very important provision, to be considered against the background of the international instruments dealing with educational rights, such as the 1981 Declaration, the Universal Declaration, the Covenants, the UNESCO Convention against Discrimination in Education and the Declaration and Convention on the Rights of the Child.14 Article 7 deals with cultural exchanges between Catholic institutions worldwide, and educational, cultural and research institutions in Israel. By Article 8, the State of Israel recognizes the right of the Catholic Church to exercise its freedom of expression also through the Church’s own communications media. In Article 9, both parties reaffirm the right of the Catholic Church to carry out its charitable functions through its health care and social welfare institutions, in harmony with the rights of the State in this field. The right of the Catholic Church to property is reaffirmed in Article 10.

13 For a U.S. Supreme Court decision in this respect, Wisconsin v. Mitchell, 485 N.W. 2d 807 (1992), rev’d 113 S. Ct. 2194 (1993). 14 For all those instruments, Human Rights . . ., supra, note 5.

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All the above mentioned provisions are in accordance with firmly established principles in the area of religious human rights. They are listed in the 1981 United Nations Declaration, which followed in this respect the principles formulated by Special Rapporteur Arcot Khrishnaswami in his 1958 Study of Discrimination in the Matter of Religious Rights and Practices.15 Their enunciation in a bilateral agreement makes them obligatory for the involved parties in their reciprocal relations, beyond the existence of mandatory general treaties to which the signatories are parties. Holy Places The issue of holy places for the different religions is an important ingredient in the spectrum of religious human rights. History is rich in examples of affronts against the holiness of sacred sites. With regard to the Muslim and Christian Holy Places in the State of Israel, they were respected on the whole, beyond some isolated incidents. The subject has many implications, not only of a religious nature. On the territory of the State of Israel there are many sites holy for the different religions. Most of them are in Jerusalem but there are others outside this city. They include places sacred for Christians, Muslims, Jews and also other religious groups. Already in 1949, the United Nations compiled a list of Holy Places, limited only to Jerusalem and its surroundings. In 1967, the Knesset passed the Protection of Holy Places Law,16 according to which “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.” Article 4 of the Agreement deals with this issue, avoiding any reference to the complex political problems involved in it. The State of Israel affirms its continuing commitment to maintain and respect the “status quo” in the Christian holy places and the respective rights of the Christian communities thereunder. The Holy See, on its part, affirms the Catholic Church’s commitment to respect the aforementioned “status quo” and rights (paragraph 1). In view of some misunderstandings and conflicts involving different Christian churches with regard to the Holy Places is Israel, this paragraph has special

15 United Nations, Sales No. 60.XIV.2. See, also, Article 6 of the 1981 U.N. Declaration, listing, together with its Article 1, the basic catalog of religious human rights. 16 For the English text of the Law, passed on 27 June 1967 and published in Sefer Hachukkim No. 499 (1967), p. 75, see Laws of the State of Israel, Vol. 21 (1966/67), p. 76. On the legal status of the Holy Places in Israel, see several articles in The Arab-Israeli Conflict (ed. John Norton Moore), Vol. 1, Princeton, 1974, pp. 915–1062.

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interest. It is also significant against the background of some Catholic criticism voiced in the past against the “status quo”.17 Against this background, as Dr. Fisher points out, though “Israel has always honored the principle of religious freedom in practice, a written commitment gives some surety for the future beyond present political exigency. It may also have some precedent making value within the larger context of the Middle East.”18 By paragraph 3, the State of Israel agrees with the Holy See on the obligation of continuing respect for, and protection of, the character proper to Catholic sacred places, such as churches, monasteries, convents, cemeteries and their like. The State also agrees with the Holy See on the continuing guarantee of the freedom of Catholic worship (paragraph 4). Evaluation As stated by the then Israeli deputy Foreign Minister Yossi Beilin,19 in a formal sense at issue is an agreement “between . . . a small State and an even smaller one. But its impact reaches beyond . . . geographic boundaries, and touches the hearts of millions of Jews and more than a billion Christians throughout the world.” “Behind the agreement there are thousands of years of history, full of hatred, of fear and ignorance – with a few islands of understanding, cooperation and a dialogue.” On its part, Msgr. Claudio Maria Celli, the Vatican under-Secretary for Foreign Affairs, speaking on the same occasion, pointed out that, while clearly distinguishing between the political and the religious aspects of the signing of the document, the Holy See is convinced that “the dialogue and respectful cooperation between Catholics and Jews will now be given new impetus and energy.” In addition to its historical, political and religious dimensions, the Agreement also contains a concrete and clear religious human rights element. It lists a series of rights of the churches and their members, generally acknowledged today but not specifically listed in obligatory positive international law. In the absence of a detailed convention on religious human rights, it is important that States, particularly a state without a written Constitution and of a very special character, such as the Jewish State of Israel, on the one hand, and,

17 See, Religious Liberty and the Law. Proceedings of symposia sponsored by the Israeli Interfaith Committee, The American Jewish Committee and the United Christian Council in Israel, Jerusalem, 1980, inter alia Father Joseph Stiassny’s advocacy of “a radical change of the status quo” (p. 46). 18 Supra, note 3. 19 See, joint press conference following the signing of the Basic Agreement, Jerusalem, 30 December 1993, text disseminated by the Ministry of Foreign Affairs.

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on the other, entities like the Catholic Church, playing such a major role in the Christian world, conclude agreements defining and clarifying their reciprocal interests and rights, inclusive the wide spectrum of rights belonging to the category of religious human rights, or rights related to religion if the interests of secular non-religious persons are also taken into consideration. In this respect, the 1993 Fundamental Agreement between the Holy See and the State of Israel is a significant development likely to play a role in the universal protection of human rights in the sensitive field of religion and beliefs.

CONCLUDING REMARKS

As pointed out in the Preface, this book will appear during the year of the twenty fifth anniversary of the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. As shown in the different chapters, both evils continue causing serious harm all over the world. Measures to prevent and combat their consequences have been adopted, but are far from being sufficient. In some areas, the situation is worse than in the past, and some new dangers related to this area became grave threats to world peace and security. On the occasion of the twentieth anniversary of the Declaration, on November 23–25, 2001, the United Nations Special Rapporteur on the question of religious intolerance, in co-operation with the Government of Spain, organized, in Madrid, an international consultative conference on education in relation with freedom of religion and belief, tolerance and non-discrimination. The Conference, attended by representatives of a large number of states, as well as of non-governmental organizations and invited experts, reiterated the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family and saw in them the foundation of freedom, justice and peace in the world. It also stressed that all human rights are universal, indivisible and interdependent. It expressed concern about the continuing discrimination against, inter alia, children, migrants, refugees and asylum seekers, and emphasized the necessity to ensure their human rights and fundamental freedoms and in particular their right to freedom of religion or belief, tolerance and non-discrimination. The Final Document of the conference noted the understanding that freedom of religion or belief includes theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. It also underlined the urgent need to develop respect for pluralism and called upon states to promote educational policies aimed at eradicating prejudices and conceptions incompatible with freedom of religion or belief. All forms of intolerance and discrimination based on religion or belief, including those which promote hatred, racism or xenophobia were condemned, and states, NGO’s and all members of civil society were encouraged to combat religious or belief, ethnic, racial, national and cultural stereotypes. Tolerance – says the Final Document – “involves the acceptance of diversity and the respect for the right to be different.” The right of parents, families and legal guardians to ensure the religious and/or moral education of their children in conformity with their own convictions is also reaffirmed.

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CONCLUDING REMARKS

The Final Document was adopted unanimously and, given the representative character of the Conference, should be seen as an expression of the readiness of the international community to accept the principles that the United Nations developed in the area of freedom of religion or belief. Five years after its adoption, and in connection with the present anniversary, one may express the hope that the unanimous support the document received may perhaps indicate a disposition to enlarge the international protection in this sensitive area of human rights. It is difficult to assert if such disposition will work in favor of a mandatory treaty, or if this may be too much to be expected at this time. We summarized the work of the special rapporteurs appointed since 1987 to examine incidents and government measures contrary to the provisions of the 1981 Declaration. In July 2004 a new special rapporteur, Ms. Asma Jahangir, was appointed. In her initial report, the new Special Rapporteur noted that, for a large number of persons worldwide, freedom of religion or belief is not respected, or not respected entirely. Some violations of the principle are singled out particularly. Such are the violations of human rights of members of certain religious minorities; the still widely applied practice of forced conversion; the violations of the right to freedom of religion or belief committed by non-State actors; the acts of violence or other acts of religious intolerance against individuals; the desecration or other forms of destruction of religious sites, buildings and shrines. The events of 11 September 2001 continue to have a dramatic impact on the situation of human rights, including freedom of religion or belief, and a “confusing and misleading link between certain religions and terrorism” is causing concern, writes the Special Rapporteur. Conversion, registration of religious communities, or rather difficulties related to the registration procedure, terrorist activities and anti-terrorist legislation and measures; categorization of religions and selectivity in the recognition of religions; the question of religious symbols and their display, particularly the wearing of distinctive clothing, such as head covers, these are some of the issues that the Special Rapporteur considered pertinent to mention. Most of these issues and some others have been discussed in the precedent pages. More or less emphasis may have been subjective. On the whole, the author hopes to have provided the reader with an overview of the present state of human rights related to religion and beliefs. Such picture may be useful in the difficult road leading to more progress in this area. As the Madrid document stresses, such progress requires “a spirit of peace, justice, liberty, mutual respect and understanding” and must take into consideration the urgent need to promote “the protection and the respect for freedom of religion or belief.” The international community has to prove that the feeling of urgency can be translated into effective legal norms.

INDEX

Abortion 75 Abu-Sahlieh, Sami A. Aldeeb 142 African Charter on Human and Peoples’ Rights 76 African Commission on Human and Peoples’ Rights 67, 76 Agnostics 3, 7, 30, 31, 50, 157, 188, 205, 214 Albania 45, 46, 61, 145 American Civil Liberties Union 100 American Convention on Human Rights 82, 101, 153, 196 American Declaration of the Rights of Man 74, 75 Amnesty International 76 Amor, Abdelfattah 9, 39, 41, 81, 146, 171 Angelini v. Sweden 49, 72, 145, 156 Ankumah, Evelyn 76 An-Naim, Abdullahi Ahmed 77 anti-Semitism 17, 29, 65, 70, 78, 80, 83, 88, 168, 215 apostasy 14, 16, 27, 77, 119, 124–126, 129, 131, 139, 143, 146, 148 Arrosmith v. UK 70 Arzt, Donna E. 77 atheism, 7, 14, 16, 71, 77, 148, 154, 195 atheists 7, 30, 31, 157, 188, 214 Australia 42, 99 Austria 27, 41, 45, 49, 71, 99, 151, 156, 188 Bach, Justice 92, 95 Baha’i 27, 42, 205 Banton, Michael 90 Barak, Justice 95 Beauharnais v. Illinois 81, 98–100 Begum (Shabina) v. Denbigh High School 188 Belgium 10, 187, 188 belief, beliefs. See also secular beliefs 5–7, 14 Ben Gurion, David 201 Bernheim petition 45 bilateral arrangements 67, 78, 79 blasphemy 25, 27, 42, 51, 71, 122, 125, 133, 138, 139 Bosnia 108, 109, 111, 115, 177 Boyle, Kevin 1, 22, 37, 81, 122

brainwashing 158, 159 British Mandate (on Palestine) 203, 204 Buddhism 6, 41, 71 Burakumin 96 Cairo Declaration on Human Rights in Islam 77, 154 Campbell and Cosans case 71 Capotorti, Francesco 43, 46, 57 Carter, Jimmy 85 Cassin, Rene 14 catalog of religious rights 9 Catholic Church 17, 75, 77, 78, 206, 213, 216–218 Cha’are Shalom ve Tsedek v. France 189, 197 change of religion. See also proselytism, conversion, 119 ff., basic instruments on religion or belief case law on change of religion 156 ff. Chappel v. UK 71 Child, Convention on the Rights of the 21, 36, 48, 59, 136, 145, 151, 178, 216 Christian(s) 41, 42, 78–81, 109, 122, 126, 133, 146, 147, 158, 171, 202, 205, 206, 213, 217–218 Church of New Faith case 6 Clark, Roger S. 130 Code of Offenses against the Peace and Security of Mankind 107 coercion, religious 14, 16, 18, 20, 24, 25, 32, 70, 111, 120, 121, 123, 126, 129, 134, 136, 138, 140, 143, 145, 146, 159, 169, 197 Cohn, Justice Haim H. 125, 174 Collin v. Smith 100 Colombia 27, 79, 85, 139 Commission on Human Rights 29, 31, 38 Committee on Economic, Social and Cultural Rights 28, 139 Committee on the Elimination of Discrimination against Women (CEDAW) 48 Committee on the Elimination of Racial Discrimination (CERD) 22, 83, 84, 115, 120, 121

224

INDEX

Communism 71 communities. See also recognized communities, religious communities 2, 10, 11, 33, 34, 51, 53, 69, 78, 79, 81, 83, 132, 170, 203–207 Concluding Document of the Vienna Meeting of 1989 69–70 Concordat 17, 27, 34, 78, 79, 206, 214 Conference for Security and Cooperation in Europe. See also Organization of Security and Cooperation in Europe (OSCE) 67 conscientious objection. See also freedom of conscience, General Comment of the Human Rights Committee on, case law on 8, 26, 28, 41, 42, 51, 70 conversion. See also change of religion, proselytism 24, 30, 42, 50, 51, 53, 119–165, 210 Copenhagen Meeting of the CSCE 68, 70, 155 Council of Europe 3, 11, 44, 46, 56, 65, 68, 70, 72, 73, 82, 99, 153, 155, 167, 168 Covenant on Civil and Political Rights (ICCPR), Optional Protocol to, Article 27 19, 119 Covenant on Economic, Social, and Cultural Rights (ICESCR) 19, 119 crimes against humanity. See also ethnic cleansing, genocide, criminal law 107, 108, 110, 112 cults. See also sects 11, 73, 121 cultural genocide 104, 105 cultural relativism 119, 150 Cyprus 41, 121, 145 Czechoslovakia 45, 130 d’Almeida Ribeiro, Angel Vidal 39–41, 108, 146 Darby v. Sweden 72, 160 Declaration. See declarations according subjects defamation. See also group libel 81, 82, 94–102 Denmark 72, 99, 106, 123, 145, 156 Dinstein, Yoram 38, 46 discrimination. See also racial discrimination, religious discrimination Drinan Robert F., S.J. xii, 169 Druidism 71 Durham, W. Cole, Jr. 1, 69, 203

ecocide 105 education. See also religious education, freedom of education, UNESCO Convention against Discrimination in Education 21, 24, 25, 28, 36, 42, 43, 48, 52, 53, 69, 70, 72, 132, 136, 138, 145, 150–153, 155, 156, 164, 175, 181, 216, 219 Egypt 25, 42, 129, 135, 141, 146, 147 Emory University, Center for the Study of Law and Religion 1, 199 Englard, Izhak Justice 201 Enticement 14, 20, 124, 126, 129, 136, 143, 164 Ethnic 2, 4, 42, 44–47, 51, 55–60, 62–65, 70, 72, 83, 84, 87, 89–91, 94, 96, 99–105, 107–117, 128 ethnic cleansing. See also international criminal law, in Rwanda, in former Yugoslavia 42, 51, 107, 117 European Commission on Human Rights 25, 26, 49, 70, 122, 156, 157, 160, 183 European Constitution, draft 182 European Convention for the Protection of Human Rights and Fundamental Freedoms 68, 82, 153, 181, 196 European Court of Human Rights 32, 48, 67, 121, 156, 161, 181, 199, 200 European Court of Justice 70 European Union 70 European Yearbook on Minority Rights 56 Evangelization 119, 120, 124–126, Evans, Malcolm D. 1, 45, 68, 181 extremism, religious 37, 42, 43, 52 fanaticism 159 fascism 45, 91 Ferrari, Silvio 78, 79, 121, 206 Final Act of the Helsinki Conference on Security and Cooperation in Europe 68–69 Finland 21, 49, 72, 137, 156 First Amendment 6, 86, 95, 100, 116 Foighel, Judge 159 Framework Convention for the Protection of National Minorities, of the Council of Europe 72, 73, 155 France, Commission on Secularism 187 Frankfurter, Justice 81, 100

INDEX

freedom of association 16, 21, 69, 82, 92, 170 freedom of belief 8, 11, 42, 77, 124, 148 freedom of conscience. See also conscientious objection 3, 4, 8, 11, 14, 22, 26, 32, 41–42, 51, 70, 72, 74, 76, 124, 127, 135, 136, 153–154, 185, 207 freedom of expression. See also freedom of speech, group libel 22, 69–71, 77, 82, 84, 88–90, 92–95, 97–98, 101, 121–124, 137, 142, 143, 161, 164, 168, 170, 216 freedom of religion 1–3, 8–11, 14, 23, 24, 28, 32, 37, 40, 43, 50, 53, 68, 72, 75–81, 121, 124, 128, 144, 148, 154, 155, 168–171 freedom of thought 3, 5, 8,13, 14, 16, 19, 43, 122, 129, 136, 140, 151, 153, 157, 169 freedom to manifest religion or belief 16, 23 Fundamental Agreement between the Holy See and the State of Israel 78, 206, 211, 213–218 Garay, Alain 156 Gay News v. U.K 25 gender discrimination 35 General Comment of the Human Rights Committee 23 Geneva Conventions (on humanitarian law) 47 genocide, Genocide Convention. See also Nuremberg trials and judgment 50, 59, 81, 102–107 Germany, German Constitutional Court 10, 11, 26, 41, 42, 45, 99, 106, 107, 145, 188 Goldman v. Weinberger 24 Grandrath v. Germany 26 Greece 42, 45, 99, 121, 146–148, 156, 157, 161, 189, 192, 193, 196, 197 group libel. See also group defamation 81, 94–102 groups. See also religious groups ix, x, 2, 3, 10–11, 13, 15, 17, 19, 23, 27, 28, 31, 34, 39–42, 44, 46, 48, 50, 51, 56, 57, 61, 63, 65, 66, 71, 72, 75, 79, 81, 83, 89, 90, 94, 96–99, 109, 110, 125,126, 129, 131, 132, 137, 149, 150, 169–171, 191 Gunn, T. Jeremy 156, 160, 196, 197 Gypsies 65, 104, 108

225

Halakha 125, 207 Handyside case 32 Hartikainen v. Finland 21, 49, 72, 137, 156 hate crimes 22, 108, 113, 116, 117, 215, hatred 1, 2, 11, 22, 23, 25, 29, 31, 37, 39, 65, 70, 78, 80–84, 87–93, 95, 99, 101, 102, 104, 109, 113–117, 122, 137, 169, 215, 218, 219 Hazar v. Turkey 71 Helsinki Conference on Security and Cooperation in Europe 68, 69, Hoffman v. Austria 151, 156 Holocaust, the 45, 87, 88, 100, 173, 177, 178, 201, 215 Holy Places 78, 208, 213, 217 Holy See 27, 34, 77, 79, 206, 211, 213–218 Human Dimensions Seminar 154 Human Rights Commission 70 Human Rights Committee 8, 20–28, 32, 38, 39, 48–50, 72, 79, 89, 115, 117, 120, 136–138, 146, 165, 202 humanity, crimes against 107, 108, 110, 112 Hungary 45, 99 Huntington, Samuel P. 2 Iceland 99 implementation of the 1981 Declaration 109, 117, 146 incitement: to racial discrimination; to religious intolerance; General Comment of the Human Rights Committee on; Israeli law on 22, 25, 31, 51, 65, 70, 81, 90–97, 99, 101, 105, 113, 115, 122, 159, 168, 169 Indigenous and Tribal Populations Convention 150 indigenous populations 49, 150, 165 Ingles, Jose D. 82, 87, 88 Inter-American Commission on Human Rights 74, 153 International Criminal Court (ICC) 112, 178 International Criminal Law 102, 108, 112, 177 International Labor Organization (ILO) 49, 150 International Religious Freedom Act 3, 81

226

INDEX

intolerance 1, 9–11, 13, 17, 22, 28–31, 34, 35, 37–43, 47, 51–53, 59, 60, 66, 70, 78, 81, 82, 93, 94, 99, 109, 115, 117, 119, 121, 122, 130, 139–141, 144, 146, 148, 151, 152, 154, 160, 169, 170, 178, 196, 197, 210, 214, 215, 219, 220 Iran 25, 41, 42, 130, 141, 142, 145–147, 151, 171 Islam 53, 67, 71, 76, 77, 122, 130, 142, 146, 147, 169, 186 Islamic Conference 76, 77, 142, 154 Islamic foulard 182 Israel Broadcasting Authority 92, 95 Israel High Court of Justice 92, 95, 205, 207, 209, 210 Istanbul University 183, 184, 187, 189, 190, 192, 195 Jahamir, Asma 53 Jihad 142, 171 jus cogens 50, 82, 103 Kjeldsen, Busk Madsen and Pedersen v. Denmark 72 Kokkinakis v. Greece case 121, 156, 189, 192, 193, 196 Kokott, Juliane 77 Larissis case 161, 164 Lauterpacht, Eli 111 League of Nations 4, 44, 45, 56, 128, 204 Lemkin, Raphael 103 Letter Concerning Toleration (Locke) 130 libel. See group libel 22, 81, 82, 94–102 literature on religion and human rights 1, 44, 56, 67, 103, 108, 123, 201 Lithuania 27, 45 Locke, John 130 Loizou, Judge 159 Madrid Conference on School Education in Relation to Freedom of Religion 53 Malik, Charles 129 Malnak v. Yogi 6, 7 Mandla v. Dowell Lee 24 manifestation of religion 17, 199 Manoussakis and Others v. Greece 156, 193, 197 Maoz, Asher 124, 206, 207 Maritain, Jacques 178 Martens, Judge 160, 197

Mazowiecki, Tadeusz 111 McCoubrey, H. 108 McKean, Warwick 15, 103 Meron, Theodor 3, 20, 47 migrant workers, Convention on Migrant Workers 49, 149 Mihajlovic, Draza 109 minorities: definition European Framework Convention on 73 Human Rights Committee General Comment on 120 Minorities Schools in Albania case 46, 61 Minorities Treaties under the League of Nations 128 national minorities 46, 58–60, 64, 66, 68, 72, 73, 99, 109, 155 new minorities 61, 62 OSCE High Commissioner for 68 United Nations Declaration 1992 on 46, 72, 148 mission, missionary activity 14, 41, 119, 120, 124–126, 129, 132, 133, 135, 145–147 morals 20, 21, 25, 32, 36, 68, 80, 133, 138, 150, 195, 199, 207 Morocco 27, 30, 42, 120, 130, 138, 141, 145, 147, 148 Muhammad 142, 169 Nasreen, Taslim 25, 41 Nazism, Nazi 7, 11, 28, 45, 87, 97, 100, 104, 173 new religious movements. See also sects 3, 9, 10, 43, 148 Nigeria 76, 132, 133 non-Orthodox branches of Jewish religion 206, 209 Norway 99 Nostra Aetate Conciliar Declaration 80, 215 Nuremberg trials 103, 107, 112 Odio Benito, Elizabeth 31, 35, 39, 144 O’Donovan, Declan 130, 140, 141 Organization of American States 74 Organization of Security and Cooperation in Europe (OSCE) 67, 121, 154, 168 Orlin, Theodore S. 128 OSCE Human Dimension Seminar 154 Oslo Declaration on Freedom of Religion and Belief 11

INDEX

Otto Preminger Institute v. Austria 71, 156 Ottoman Empire 185 pacifism 26, 70, 71 Pakistan 41, 42, 129, 145–147 Palomino Lozano, Rafael 78 Panesar, Nestle Co. Ltd. 24 Paris Charter for a New Europe 68, 83 Partsch, K.J. 127 Pentecostal Church 162 Permanent Court of International Justice 45, 46, 61 Perry, Michael J. 173 persecution, religious 2, 45 Pesarro (Goldstein) v. Minister of Interior 210 Pettiti, Judge 158, 159, 197 Pfeffer, Leo 127 Philippines 42, 99, 135 Pledge of Allegiance case 182 Poland 45, 130, 188 Privacy 69, 121–122, 143, 164 profiling 170 propaganda, racist 83, 93 proselytism. See also apostasy, conversion, change of religion, evangelization, mission 119–125, 127, 137–139 148, 150, 152, 153, 154, 157, 158, 160, 161, 196, 220 General Comment on 23, 26, 165 in Greece 42, 121, 146 in the Universal Declaration 14, 30, 127, 139, 143, 165 in the Covenants 143 in the Declaration on Religious Intolerance 139–144 captive audiences 164, 123 Qur’an 141, 142, 151 race, UNESCO Declaration on 61, 82, 91, 101 racial discrimination, Convention on 20, 22, 34, 38, 50, 51, 82, 83, 90, 93, 99, 115 racism, 2, 22, 29, 52, 78, 83, 86, 89, 91, 94, 95, 99–101, 108, 114, 115, 168, 176, 215, 219 racist 22, 83, 84, 86, 87, 89–94, 96, 99, 108, 113, 116 rape 108, 110, 114–116

227

recognized communities 132, 205, 206 Red Cross, International Committee of the 47, 171 regional instruments 5, 153, 195, 214 regional protection 67, 69, 71, 73, 75, 77 religion: definition 8 legal meaning 5, 7, 9, 11, 31, 34, 97 manifestation of 2, 3, 7, 16, 17, 21, 29, 31, 32, 70, 152, 160, 161, 189, 193, 196, 197, 199, 200, 203 Rigaux, Francois 156 Robinson J. 56 Robinson, Nehemiah 13, 14, 103, 130 Romania 42, 45, 99 Roth, Stephen J. 45 Ruhashyankiko, Nicodeme 103 Rushdie, Salman 25, 122, 133 Russia 42, 120, 167, 205 Rwanda 42, 51, 108, 112, 177 Sahin, Sahin v. Turkey 181, 183, 198 San Francisco Conference 128 Santeria 21 Saudi Arabia 41, 129, 130, 135, 141, 146 Scheinin, Martin 14, 127 Scientology 10, 11, 41, 71, 161 Sects 3, 9–11, 14, 27, 40–43, 79, 125, 129, 138, 148 secular beliefs 3 secularism 70, 186, 187, 190–194, 199, 200 Security Council 108–112, 114, 117, 167, 178 Serbia 109, 111, 115 Shari’a 77, 142, 146, 154, 192, 204, 205 shehitah 21 Sieghart, Paul 3, 174 Sikhs 90 Skokie case. See also Collin v. Smith 92, 95, 96, 98, 100 Spain 79, 99, 125, 142, 145, 167, 182, 188, 193, 214, 219 state religions 17, 25, 35, 43, 77, 138, 142 states: models of state and religion relations 17, 25, 35, 138, 142 statutory limitations 107 Subcommission on the Prevention of Discrimination and Protection of Minorities 33, 144 Sudan 27, 42, 76, 132, 133, 139, 146, 147 Sullivan, Donna J. 21, 28, 47, 139, 143 Supreme Court, of Israel 92, 174

228

INDEX

swastika, Swastika epidemics 28 Sweden 49, 68, 72, 99, 145, 156, 160, 188 symbols, religious 53, 155, 181, 182, 188, 189, 193, 194, 198, 220 Tabory, Mala 38 Tahzib, Bahiyyih G. 1, 144, 151 Tanzania 27 Ten Commandments case 182 Terrorism 42, 53, 167–171, 202, 220 Thornberry, Patrick 44, 73 Time 11, 108, 120 Torcaso v. Watkins 6 Torture, Convention on 106 totalitarian 7, 36, 70, 164 Truman, Harry 102 Turkey 42, 45, 68, 71, 145, 167, 181, 183, 185, 186, 190–194, 198 Turkish headscarf case. See also Sahin v. Turkey 24, 32, 70, 181 UNESCO: Convention against Discrimination in Education Declaration on Race and Racial Prejudice 21, 48, 61, 82, 91, 101, 136, 152, 178, 179, 216 Unification Church 71 Union of Free Thinkers (Finland) 21, 137 United Kingdom 24, 27, 70, 71, 85, 96, 122, 139, 188, 193 United Nations. See also U.N. documents 1, 3–5, 7, 9, 10, 13–15, 17, 19–21, 26, 28, 29, 37, 40, 44, 46, 47, 49–51, 55–61, 63–65, 72, 78, 83, 85, 94, 117, 119, 121, 127, 128, 130, 135–137, 139, 140, 144, 148, 150, 151, 163, 164, 167, 173, 178, 201, 202, 214–217, 219, 220

United States 3, 6, 11, 21, 22, 24, 26, 75, 81, 83, 85, 86, 88, 89, 92, 94–96, 98–100, 102, 116, 151, 161, 167 United States v. Seeger 6 Universal Declaration on Human Rights 57, 97, 101, 102, 119, 196, 214 Universalism 165 U.S.S.R. 27, 99, 130 Valtikos, Judge 159, 161 van Boven, Theo 38, 41, 143 van der Vyver, Johan D. 1, 8, 69, 124, 196, 206 Vatican. See also Holy See 78, 80, 213, 218 Vienna Concluding Document 153 Vienna Conference on Human Rights 38 Volio, Fernando 122 Walkate, J. A. 129, 140 war crimes 107, 108, 110, 111, 113 Welsh v. United States 6, 26 Wingrove v. United Kingdom 71, 193 Whitaker, Ben 103 Wisconsin v. Mitchell 23, 116, 215 Wisconsin v. Yoder 6 “with due regard” clause 88, 89, 93 Witte, John, Jr. 1, 6, 8, 17, 69, 124, 196, 199, 206 World Council of Churches 80, 143, 158 World Jewish Congress 103 Yemen 42, 135 Yugoslavia 41, 42, 51, 56, 57, 108–112, 114, 115, 130, 178 Zamir, Justice 100, 101 Zimbabwe 27, 42 Zionism 201