0521856493 cambridge university press freedom of religion UN and european human rights law and practice jan 2006

Foreword by David Harris pageixPreface xi Table of cases, applications, and communications xiii Table of treaties, declarations, and other international instruments xxiv List of abbrevia

The scale and variety of acts of religious intolerance evident in so many countries today are of enormous contemporary concern This timely study attempts a thorough and systematic treatment of both Universal and European practice side by side The standards applicable to freedom

of religion are subjected to a detailed critique, and their development and implementation within the UN is distinguished from that within Strasbourg, in order to discern trends and obstacles to their advance- ment and to highlight the rationale for any apparent departures between the two systems This dual focus also demonstrates the acute need for the European Court to heed the warnings from various patterns of violation throughout the world illustrated by the Human Rights Committee and the Special Rapporteur on freedom of religion or belief.

P A U L M T A Y L O R is a Barrister (Lincoln’s Inn).

F R E E D O M O F R E L I G I O N

UN and European Human Rights Law and Practice

P A U L M T A Y L O R

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press

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Foreword by David Harris pageix

Preface xi

Table of cases, applications, and communications xiii

Table of treaties, declarations, and other international

instruments xxiv

List of abbreviations xxvii

1 Introduction 1

Interrelation between the UN and European systems 7

The institutions and their contribution to standard-setting 9 The Human Rights Committee 10

The Role of the Special Rapporteur 15

The European Convention treaty organs 16

Chapter structure 19

2 Freedom of religious choice 24

Introduction 24

Freedom to change or maintain religion 27

Pressure to maintain a religion or belief 43

Origin of the freedom from coercion 43

Interpretation of the freedom from coercion 45

Social concern and inducements 57

Proselytism 64

Grounds of opposition to proselytism 64

Rights and freedoms of others 70

‘Direct’ protection for the forum internum 120

Decisions based on justified limitation on manifestation 121 Decisions based on available alternatives 136

Exemption ruling out coercion 136

Decisions based on provision for interference in the

relevant Convention 147

Military service 148

Taxation and social security 153

Recognition that coercion does not constitute

manifestation 156

‘Indirect’ protection for the forum internum 160

The rights and freedoms of others as a ground of limitation 161

The use of anti-discrimination measures to protect

the forum internum 182

Differential treatment 187

‘Reasonable’ and ‘objective’ criteria 192

4 The right to manifest religious belief and applicable

‘To worship or assemble in connection with a religion

or belief, and to establish and maintain places for

these purposes’ 237

Worship or assemble 237

Establish and maintain places of worship and assembly 242

‘To establish and maintain appropriate charitable

or humanitarian institutions’ 246

‘To make, acquire and use to an adequate extent the

necessary articles and materials related to the rites or customs

‘To solicit and receive voluntary financial and other

contributions from individuals and institutions’ 271

‘To train, appoint, elect or designate by succession

appropriate leaders called for by the requirements and

standards of any religion or belief ’ 272

‘To observe days of rest and to celebrate holidays

and ceremonies in accordance with the precepts of one’s

religion or belief ’ 278

‘To establish and maintain communications with

individuals and communities in matters of religion or belief

at the national and international levels’ 287

Necessary (in a democratic society) 305

Grounds of limitation 321

Public interest grounds of limitation 321

Public health and safety 321

National security 325 Protection of morals 327

Fundamental rights and freedoms of others 328

5 Conclusion 339

The myth surrounding the nature of coercion to change

religion or belief 339

Developing recognition of issues of conscience 342

The widening of State discretion in European jurisprudence 343 The range of manifestations of religion or belief 347

Meeting future challenges 348

Annexes 352

Annex 1: Universal Declaration of Human Rights 352

Annex 2: International Covenant on Civil and Political Rights 358 Annex 3: Declaration on the Elimination of All Forms

of Intolerance and Discrimination Based on Religion or Belief 368 Annex 4: Convention for the Protection of Human Rights

and Fundamental Freedoms 372

Annex 5: Text of General Comment No 22 378

Bibliography 383

Index 398

This study of the United Nations and European international humanrights law guaranteeing freedom of religion addresses issues of greatcontemporary concern There are many places in the world where thefollowers of a particular religion may not lawfully worship or practisetheir religion in their daily lives Apostacy and proselytism may becriminal acts, as may artistic speech that causes offence to religiousfeelings Religious intolerance continues to fuel a high proportion ofthe situations of armed conflict around the world, thus being the see-mingly intractable cause of so much human suffering Since 9/11,incitement to religious hatred has increased in significance, withMuslims being the targets of general blame Religion is as the heart ofthe debate about multiculturalism, exemplified by the heated contro-versy in France about the wearing of headscarves by Muslim women.The relationship between Church and State remains a contentious issue

in some other societies In a watershed and contentious judgment inRefah Partisi v Turkey, the European Court of Human Right has ruledthat a state legal order that is founded on Shariah Law is not consistentwith democracy in Europe, so that the banning of a political party thatseeks to introduce such an order is not in breach of the guarantee of theright to freedom of association in the European Convention on HumanRights And the return to strict Christian religious values in the UnitedStates has raised moral questions and issues of separation of Church andState for the courts

This book is likely to become the place of first recourse on theinternational human rights law on freedom of religion that governthese and other situations and issues It offers a comprehensive analysisand evaluation of the relevant international law standards that haveevolved within the United Nations and the Council of Europe Thebook is distinctive in its reliance upon both the – sometimes differing –jurisprudence and practice of the United Nations and European humanrights systems At the United Nations level, what is of great value is the

ix

author’s use not only of the practice of the Human Rights Committee,but also of the reports of the UN Special Rapporteur on Freedom ofReligion or Belief These reports are a depressingly revealing mine ofinformation about the large extent and different forms of the ongoingviolations of freedom of religion perpetrated or tolerated by Statesaround the world.

D A V I D H A R R I S

Professor Emeritus and Co-Director of the

Human Rights Law Centre,

School of Law,University of Nottingham

April 2005

The escalating religious intolerance of recent years, both through Stateviolation and by non-State entities, is most conspicuous in events followingthe collapse of the former Soviet Union, in religious conflict in many parts

of the world and, of course, in the attacks of 11 September 2001 This hascaused speculation whether the international instruments which weredeveloped more than half a century ago, and those which followed butwere shaped by those instruments, are sufficient to meet present andforeseeable demands The array of religious violations visible in so manycountries today could not have been anticipated by the drafters of the corefreedom of religion Articles in the foundational instruments, namely theUniversal Declaration on Human Rights and the European Convention.The development of comparable provisions in later instruments, such asthe International Covenant on Civil and Political Rights and the UnitedNations Declaration on the Elimination of all Forms of Intolerance and ofDiscrimination based on Religion or Belief (‘the 1981 Declaration’), sug-gests that the issues which fashioned the text of those later provisions didnot depart significantly from those faced by the original drafters, exceptperhaps in the intensity with which they were debated

Among recent patterns of violation, particularly in countries of the formerSoviet Union, are measures such as prohibitive registration formalities andbans on proselytism aimed at the protection of a traditional State religion orthe preservation of national identity in reaction to the influx of new religiousmovements Many other countries have recently adopted preventive policiesagainst so-called ‘sects’ as a result of exaggerated fears of their activities Thexenophobia and discrimination directed at Muslims following September 11has been far more widespread and anxieties about ‘extremism’ have, forexample, led various countries to react more unfavourably than ever towardsMuslim dress Hostility towards Muslims has added impetus to moves whichhad already begun in certain countries for legislation designed to prohibitreligious vilification or religious hatred It remains to be seen whether thiswill be at the expense of religious practice such as teaching and proselytism

xi

One other development of recent years has been the emergence of politicalparties with an overtly religious agenda, the most radical advocating theintroduction of a system of government based on religious law.

It is therefore timely to reflect on whether existing instruments arecapable of meeting immediate expectations and, as we approach the25th anniversary of the 1981 Declaration, to consider in particular thecontribution to the development of current standards made by thatDeclaration and by the Special Rapporteur on freedom of religion orbelief appointed to examine incidents and governmental action incon-sistent with the Declaration The 1981 Declaration is of unique signifi-cance in the development of the freedom of religion since it was the first,and remains the only, United Nations instrument dedicated solely tothat freedom This work pays tribute to the specialist role of the SpecialRapporteur in providing a wealth of material on recurring patterns ofviolation worldwide and in serving to uncover contemporary sources ofintolerance and obstacles to the promotion of international obligations.The purpose of this book is to provide a detailed survey of the elements

of the freedom of thought, conscience and religion as developed withinboth the United Nations and European systems and to offer an analysis oftrends at a time when the freedom faces a number of important challenges

It provides a critique of United Nations and European practice in order toidentify and explain apparent departures between the two systems, to help

to discern obstacles to the advancement of standards and to guage the level

of recognition given to different aspects of the freedom The aim is toenable an immediate appreciation of the United Nations or Europeansystem for those familiar with only one, and to provide coverage of thelaw and practice of both United Nations and European institutions forthose familiar with neither system

I would like to acknowledge and thank Professor David Harris, whohas been extremely generous in his support for this work and whoseassistance I value enormously I would also like to thank, among manyothers who have helped in its preparation, the librarians at CambridgeUniversity’s Squire Law Library for their patient assistance with manyqueries and the kind provision of facilities beyond all expectation I amalso greatly indebted to Wolfson College Cambridge for a VisitingFellowship that offered a stimulating environment for the completion

of this work, to Finola O’Sullivan of Cambridge University Press whothroughout has never been anything but extremely helpful, and to theanonymous referees appointed by Cambridge University Press for theirvery useful recommendations for improvement of the text

The European Court of Human Rights

Abdulaziz, Cabales and Balkandali v United Kingdom (Ser A) No 94(1985) ECtHR 186

Agga v Greece (App Nos 50776/99 and 52912/99), Judgment of

7October 2002 276

Ahmet Sadik v Greece (1997) 24 EHRR 323 270

Barthold v Germany (Ser A) No 90 (1985) ECtHR 270

Baskaya and Okc¸uoglu v Turkey (2001) 31 EHRR 292 207

Beard v United Kingdom (2001) 33 EHRR 442 243

Buckley v United Kingdom (1997) 23 EHRR 101 242

Buscarini and others v San Marino (2000) 30(2) EHRR 208 129,130,

159,199,302,345

Case relating to certain aspects of the laws on the use of languages ineducation in Belgium (the Belgian linguistics case) (Ser A) No 6(1968) ECtHR 167,183,185

Campbell and Cosans v United Kingdom (Ser A) No 48 (1982)ECtHR 128,166,173

Canea Catholic Church v Greece (1999) 27 EHRR 521 226

Casimiro Martins v Luxembourg (App No 44888/98, unreported,decision of 27 April 1999) 173

Cha’are Shalom Ve Tsedek v France (App No 27417/95), Judgment of

11July 2000 218–19,224,226,258,322

Chapman v United Kingdom (2001) 33 EHRR 399 242

Chassagnou and others v France (2000) 29 EHRR 615 186

Dahlab v Switzerland (App No 42393/98), Judgment of 15 February

2001 172,254,304,331,334,337

Dudgeon v United Kingdom (Ser A) No 45 (1982) ECtHR 310

Efstratiou v Greece (1997) 24 EHRR 298 117,173

Engel v The Netherlands (Ser A) No 22 (1976) ECtHR 142

xiii

Eriksson v Sweden (Ser A) No 156 (1989) ECtHR 167

Freedom and Democracy Party (O¨ ZDEP) v Turkey (2001)

Hoffmann v Austria (Ser A) No 255–C (1993) ECtHR 269

Holy Monasteries v Greece (Ser A) No 301 (1995) ECtHR 230,252

Incal v Turkey (2000) 29 EHRR 449 207

Informationsverein Lentia and others v Austria (Ser A) No 276,Judgment of 24 November 1993 92

Inze v Austria (Ser A) No 126 (1988) ECtHR 186

Jersild v Denmark (Ser A) No 289 (1995) ECtHR 80

Johnston v Ireland (Ser A) No 112 (1987) ECtHR 283

Kalac¸ v Turkey (1999) 27 EHRR 552 143–4,217,318,345

Kjeldsen, Busk Madsen and Pedersen v Denmark (the Danish sexeducation case) (Ser A) No 23 (1976) ECtHR 116,166,167,

Malone v United Kingdom (Ser A) No 82 (1984) ECtHR 294

Manoussakis and others v Greece (1997) 23 EHRR 387 50,50–3,

126,233,242,299,302,303,310,324,328,335,349

Marckx v Belgium (Ser A) No 31 (1979) ECtHR 186

Metropolitan Church of Bessarabia and others v Moldova (2002)

35EHRR 306 222–4,225,230,234,240,245,246,247,271,

272–7,291,299,303,308,312,313,324,335,337,338,350

Mu¨ller v Switzerland (Ser A) No 133 (1988) ECtHR 97–8

Murphy v Ireland (App No 44179/98) (2004) 38 EHRR

212 89,98,113–14,163,304,309,325

Olsson v Sweden (Ser A) No 130 (1988) ECtHR 294

Otto-Preminger-Institut v Austria (Ser A) No 295–A (1994) ECtHR

Riera Blume and others v Spain (2000) 30 EHRR 632 332

Serif v Greece (1999) 31 EHRR 561 164,218,275–6,277,312,

325,335,336,349

Sidiropoulos v Greece (1999) 27 EHRR 633 229,302,304

Socialist Party and others v Turkey (1999) 27 EHRR 51 317

Stankov and the United Macedonian Organisation Ilinden v Bulgaria(1998) 26 EHRR, CD 103 302

The Sunday Times Case (Ser A) No 30 (1979) ECtHR 294

The Sunday Times v United Kingdom (No 2) (1992) 14 EHRR 229 308

Supreme Holy Council of the Muslim Community v Bulgaria (App No.39023/97), Judgment of 16 December 2004

Thlimmenos v Greece (2001) 31 EHRR 411 189–90,201,295,

336,348

Tsirlis and Kouloumpas v Greece (1998) 25 EHRR 198 150,193

United Christian Broadcasters Ltd v United Kingdom (App No.44802), Judgment of 7 November 2000 92

United Communist Party of Turkey and others v Turkey (1998) 26 EHRR

121 304,313,314

Vatan v Russia (App No 47978/99), Judgment of 7 October 2004 81

VgT Verein Gegen Tierfabriken v Switzerland (App No 24699/94),Judgment of 28 June 2001 92,92–3

Valsamis v Greece (1997) 24 EHRR 294 117,172,175–6,282

Vogt v Germany (Ser A) No 323–A (1995) ECtHR 99

Wingrove v United Kingdom (1997) 24 EHRR 1 87–92,96–7,

113,328

Young, James and Webster v United Kingdom (Ser A) No 44 (1981)ECtHR 174

The European Commission of Human Rights

Angeleni v Sweden, App No 10491/83 (1986) 51 D&R 41 128,

166,192,208

Arrowsmith v United Kingdom, App No 7050/75 (1980) 19D&R 5 123,128,129–30,174,207,210

Autio v Finland, App No 17086/90 (1991) 72 D&R 245 193

B and D v United Kingdom, App No 9303/81 (1986) 49 D&R

Childs v United Kingdom, App No 9813/82, decision of 1 March

1983unpublished, Council of Europe Digest of StrasbourgCase-Law relating to the European Convention on Human Rights,Section 9.2.1.1, p 1 239,324

Choudhury v United Kingdom, App No 17439/90 (1991)

D v France, App No 10180/82 (1983) 35 D&R 199 283

Darby v Sweden (Ser A) No 187 (1990) ECtHR, annex to the decision

of the Court 39,41,116,127,156,160,199,342

E & G R v Austria, App No 9781/82 (1984) 37 D&R 42 40,137

East African Asians cases, App No 4403/70 etc (1981) EHRR 76, 36

CD, 92 165,186

Gay News Ltd and Lemon v United Kingdom, App No 8710/79(1982) 5 EHRR 123 84,96,99

Glimmerveen and Hagenbeek v The Netherlands, App No 8348/78and 8406/78 (1979) 18 D&R 187 80

Gottesmann v Switzerland, App No 101616/83 (1984) 40 D&R

284 39–41,341

Grandrath v Germany, App No 2299/64, 10 YBECHR (1967)

626 149,193

Gudmundsson v Iceland, App No 511/59, 3 Yearbook (1960) 394 154

Hazar and Ac¸ik v Turkey, App Nos 16311/90, 16312/90 and 16313/

90(1992) 73 D&R 111 (settlement); (1991) 72 D&R 200(admissibility) 128,207,208

Iglesia Bautista ‘El Salvador’ and Ortega Moratilla v Spain, App No.17522/90 (1992) 72 D&R 256

ISCON and others v United Kingdom, App No 20490/92 (1994) 90D&R 90 242,243

Johansen v Norway, App No 10600/83 (1985) 44 D&R 155 148

Karaduman v Turkey, App No 16278/90 (1993) 74 D&R 93 144,

215,253–4,318,337,349

Karlsson v Sweden, App No 12356/86 (1988) 57 D&R 172 140–1

Khan v United Kingdom, App No 11579/85 (1986) 48 D&R

Logan v United Kingdom, App No 24875/94 (1996) 22 EHRR, CD

178 241

Marais v France, App No 31159/96 (1996) 86 D&R 184 81

N v Sweden, App No 10410/83 (1985) 40 D&R 203 148,193

Omkarananda and the Divine Light Zentrum v United Kingdom, App

No 8188/77 (1981) 25 D&R 105 58,273

Ortega Moratilla v Spain, App No 17522/90 (1992) 72 D&R 256 157

Plattform ‘A¨ rzte fu¨r das Leben’ v Austria, App No 10126/82 (1985)

44D&R 65 100–1,128,208

Raninen v Finland, App No 20972/92, 84–A (1996) D&R 17 193

Reformed Church of X v The Netherlands, App No 1497/62, 5Yearbook (1962) 286 136–7,154–5

Scientology Kirche Deutschland v Germany, App No 34614/96, 89–A(1997) D&R 163

Seven Individuals v Sweden, App No 8811/79 (1982) 29 D&R

104 167,268

Stedman v United Kingdom, App No 29107/95, 89–A (1997) D&R

104 144,158,189,241,282

Suter v Switzerland, App No 11595/85 (1986) 51 D&R 160 193

T v Belgium, App No 9777/82 (1983) 34 D&R 158 81

V v The Netherlands, App No 10678/83 (1984) 39 D&R

X v Austria, App No 1747/62 (1963) 13 CD 42 326

X v Austria, App No 1753/63 8 Yearbook (1965) 174 256,324

X v Austria, App No 5591/72 (1973) CD 43 161

X v Austria, App No 8652/79 (1981) 26 D&R 89 228

X v Denmark, App No 7374/76 (1976) 5 D&R 157 48,138–9,145

X v Denmark, App No 7465/76 (1977) 7 D&R 153 289

X v Germany, App No 2413/65 (1966) 23 CD 1 224

X v Germany, App No 7705/76 (1977) 9 D&R 196 148

X v Germany, App No 8410/78 (1980) 18 D&R 216 184

X v Germany, App No 8682/79 (1981) 26 D &R 97 239

X v Germany, App No 8741/79 (1981) 24 D&R 137 208,285

X v Germany, App No 9235/817 (1982) 29 D&R 194 81

X and Y v Germany, App No 7641/76 (1976) 10 D&R 224 142

X v Iceland, App No 2525/65 (1967) 18 CD 33

X v Italy, App No 6741/74 (1976) 5 D&R 83 79

X v The Netherlands, App No 1068/61, 5 Yearbook (1962)

278 122

X v The Netherlands, App No 2065/63, 8 Yearbook (1965)

266 137,155

X v The Netherlands, App No 2988/66, 10 Yearbook (1967)

472 332

X v Sweden, App No 9820/82 (1984) 5 EHRR 297 100,270,331

X and the Church of Scientology v Sweden, App No 7805/77 (1979)

16D&R 68 226,252

X v United Kingdom, App No 5442/72 (1975) 1 D&R 41 260,

324,334,337

X v United Kingdom, App No 6084/73 (1975) 3 D&R 62

X v United Kingdom, App No 6886/75 (1976) 5 D&R 100 251

X v United Kingdom, App No 7291/75 (1977) 11 D&R 55

X v United Kingdom, App No 7992/77 (1978) 14 D&R 234 256

X v United Kingdom, App No 8010/77 (1979) 16 D&R 101 267,

330

X v United Kingdom, App No 8160/78 (1981) 22 D&R 27 144–5,

147,177,188,211,225,241,247,267,337

X v United Kingdom, App No 8231/78 (1982) 28 D&R 5 256

X., Y and Z v United Kingdom, App No 8566/79 (1982) 31D&R 50 167

Yanasik v Turkey, App No 14524/89 (1993) 74 D&R 14 141,217,

318,345

Views and Decisions of the Human Rights Committee

A group of associations for the defence of the rights of disabled andhandicapped persons in Italy, and persons signing the

communication, on 9th January 1984 v Italy, Communication

No 163/1984 (decision 10 April 1984), UN Doc A/39/40(1984), p 197 226

A and S N v Norway, Communication No 224/1987 (decision of 11July 1988), UN Doc A/43/40 (1988), p 246 178–9

Ahani v Canada, Communication No 1051/2002 (views of 29 March2004), UN Doc A/59/40 vol 2 (2004), p 260 52

Arenz v Germany, Communication No 1138/2002 (decision of 24March 2004), UN Doc A/59/40 vol 2 (2004), p 548

B.d.B et al v The Netherlands, Communication No 273/1988 (decision

of 30 March 1989), UN Doc A/44/40 (1989), p 286 191

Bhinder K Singh v Canada, Communication No 208/1986 (views of

9November 1989), UN Doc A/45/40 vol 2 (1990), p 50

132–3,146,191,240,257,332

Boodoo v Trinidad and Tobago, Communication No 721/1997 (views

of 2 August 2002), UN Doc A/57/40 vol 2 (2002), p 76 135,

239,257

Brinkhof v The Netherlands, Communication No 402/1990 (decision

of 27 July 1993), UN Doc A/48/40 vol 2 (1993), (1994) 14HRLJ 410 193,345

Broeks, S W M v The Netherlands, Communication No 172/1984(views of 9 April 1987), UN Doc A/42/40 (1987), p 139 187

Buckle v New Zealand, Communication No 858/1999 (views of

25October 2000), A/56/40, p 175 269

C v Australia, Communication No 900/1999 (views of 28 October2002) UN Doc A/58/40 vol 2 (2003), p 188 52

Coeriel, A R and M A R Aurik v The Netherlands, Communication

No 453/1991 (views of 31 October 1994), UN Doc A/50/40 vol

2(1999), p 21 133–4,279

Danning, L G v The Netherlands, Communication No 180/1984(views of 9 April 1987), UN Doc A/42/40 (1987), p 151 183

De Groot, Leonardus J v The Netherlands, Communication No 578/

1994(decision of 14 July 1995), UN Doc A/50/40 vol 2 (1999),

p 179 131–2

E.P et al v Colombia, Communication No 318/1988 (decision of

15July 1990), UN Doc A/45/40 (1990), p 184 278

E.W et al v The Netherlands, Communication No 429/1990(decision of 8 April 1993), UN Doc A48/40 vol 2 (1993),

p 198

Faurisson, Robert v France, Communication No 550/1993 (views of

8November 1996), UN Doc A/52/40 vol 2 (1999), p 84 82,

H.A.E.d.J v The Netherlands, Communication No 297/1988

(decision of 30 October 1989), UN Doc A/45/40 vol 2 (1990),

p 176 191

Hartikainen v Finland, Communication No 40/1978 (views of 9 April1981), UN Doc A/36/40 (1981), p 147 178–81

Hertzberg and others v Finland, Communication No R.14/61 (views of

2April 1982), UN Doc A/37/40 (1982), p 161 186,327

Hopu, Francis and Tepoaitu Bessert v France, Communication No.549/1993 (views of 29 July 1997), UN Doc A/52/40 vol 2(1999), p 70 238,240

J.v.K and C.M.G.v.K.-S v The Netherlands, Communication No 483/1991(decision of 23 July 1992), UN Doc A/47/40 (1994), p 435 155

Jansen-Gielen v The Netherlands, Communication No 846/1999(views of 3 April 2001), UN Doc A/56/40 vol 2, p 158 267

J.H.W v The Netherlands, Communication No 501/1992 (decision of

16July 1993) (1994) 1(2) IHRR 39 187

J.P v Canada, Communication No 466/1991 (decision of 7 November1991), UN Doc A/47/40 (1994), p 426 155,220

J.P.K v The Netherlands, Communication No 401/1990 (decision of

7November 1991), UN Doc A/47/40 (1994), p 405 151

J.R.T and the W.G Party v Canada, Communication No 104/1981(decision of 6 April 1983), UN Doc A38/40 (1983), p 231 79

Jarvinen, Aapo v Finland, Communication No 295/1988 (views of

25July 1990), UN Doc A/45/40 vol 2 (1990), p 101 194

Kang v Korea, Communication No 878/1999 (views of 15 July 2003),

UN Doc A/58/40 vol 2 (2003), p 152 32

Kitok v Sweden, Communication No.197/1985 (views of 27 July 1988),

UN Doc A/43/40 (1988), p 221 279

Kivenmaa, Auli v Finland, Communication No 412/1990 (views of

31March 1994) (1994) 1(3) IHRR 88 300

K.V and C.V v Germany, Communication No 568/1993 (decision of

8April 1994), UN Doc A/49/40, vol 2 (1994), p 365 155

La¨nsman, Jouni E et al v Finland, Communication No 671/1995(views of 30 October 1996), UN Doc A/52/40 vol 2 (1999),

M.A.B., W.A.T and J.-A.Y.T v Canada, Communication No 570/

1993(decision of 8 April 1994), UN Doc A/49/40, vol 2 (1994),

p 368 128,209,238,251

M.B.B v Sweden, Communication No 104/1998, UN Doc CAT/C/22/D/104/1998 (views of 5 May 1999) (2000) 7(2) IHRR 400M.J.G v The Netherlands, Communication No 267/1987 (decision of

24March 1988), UN Doc A/43/40 (1988), p 271 190–1

Maille, Richard v France, Communication No 689/1996 (views of 10July 2000) (2000) 7(4) IHRR 947 148

Mathews, Patterson v Trinidad and Tobago, Communication No 569/

1993(views of 31 March 1998), UN Doc A/53/40 (1998),

p 30 134–5,257

Nam v Korea, Communication No 693/1996 (decision of 28 July2003), UN Doc A/58/40 vol 2 (2003), p 390 180

Pa´ez, W Delgado v Colombia, Communication No 195/1985 (views

of 12 July 1990), UN Doc A/45/40 vol 2 (1990), p 43 145–6,

267

Palandjian v Hungary, Communication No 1106/2002 (decision of

30March 2004), UN Doc A/59/40 vol 2 (2004), p 534Park, Tae-Hoon v Korea, Communication No 628/1995 (views of

20October 1998) (1999) 6(3) IHRR 623 165,210,293,325

P.S v Denmark, Communication No 397/1990 (decision of 22 July1992), UN Doc A/47/40 (1992), p 395 268

Riley et al v Canada, Communication No 1048/2002 (decision of

21March 2002), UN Doc A/57/40 vol 2 (2002), p 356 257

Ross, Malcolm v Canada, Communication No 736/1997 (views of

18October, 2000), UN Doc A/56/40 vol 2 (2001), p 69 82,

207,221,222,260,263,300–1,304,307,329

Sanle´s Sanle´s v Spain, Communication No 1024/2001 (decision of 30March 2004), UN Doc A/59/40 vol 2 (2004), p 505

Somers, Ivan v Hungary, Communication No 566/1993, (views of

23July 1996), UN Doc A/51/40 vol 2, (1997), p 144 183

T.W.M.B v The Netherlands, Communication No 403/1990

(decision of 7 November 1991), UN Doc A/47/40 (1994),

p 411 151

Vakoume´, Mathieu and others v France, Communication No 822/

1998(decision of 31 October 2000), UN Doc A/56/40 vol 2,

X v Australia, Communication No 557/1993 (decision of 16 July 1996),

UN Doc A/51/40 vol 2 (1997), p 235

Zu¨ndel v Canada, Communication No 953/2000 (decision of 27 July2003), UN Doc A/58/40 vol 2 (2003), p 483 82

Zwaan-de Vries, F.W v The Netherlands, Communication No 182/

1984(views of 9 April 1987), UN Doc A/42/40 (1987),

p 160 183

The Human Rights Chamber for Bosnia and HerzegovinaThe Islamic Community in Bosnia and Herzegovina v The RepublikaSrpska, Case No CH/96/29 (decision of 11 June 1999) (2000)7(3) IHRR 833 244,246

Mahmutovic, Dzevad v The Republika Srpska, Case No CH/98/892(decision of 8 October 1999) (2000) 7(3) IHRR 869 284

European Convention for the Protection of Human Rights and

Fundamental Freedoms (1950), 213 UNTS 221 372

Discrimination (Employment and Occupation) Convention (1958),

Declaration on the Elimination of all Forms of Intolerance and of

Discrimination based on Religion or Belief (1981), GA Res 36/55,

Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment (1984), 1465 UNTS 3

article 3 51

Convention on the Rights of the Child (1989), 1577 UNTS 3 34

Protocol 11 to the European Convention on Human Rights andFundamental Freedoms (1994), 155 ETS

European Framework Convention for the Protection of NationalMinorities (1995), 157 ETS 5,18,250,259,276,279

AC Appeal Cases

Am J Int’l L American Journal of International LawBrigham Young UL Rev Brigham Young University Law ReviewBYBIL British Yearbook of International LawCambridge LJ Cambridge Law Journal

Case W Res J Int’l L Case Western Reserve Journal of

International Law

CD Collected Decisions of the European

Commission of Human Rights

CIL Contemporary Issues in Law

Con & Lib Conscience & Liberty

Cornell Int’l LJ Cornell International Law JournalEcc LJ Ecclesiastical Law Journal

ECtHR European Court of Human Rights

Judgments and Decisions

Ed & Law Education and the Law

EHRLR European Human Rights Law ReviewEHRR European Human Rights ReportsEmory Int’l L Rev Emory International Law ReviewEmp Lawyer Employment Lawyer

ESCOR United Nations Economic and Social

Council Official Records

Eur L Rev European Law Review

GA Res General Assembly Resolution

GAOR General Assembly Official RecordsHarv Int’l LJ Harvard International Law JournalHarv L Rev Harvard Law Review

xxvii

Harv WLJ Harvard Women’s Law Journal

HR & UKP Human Rights and UK Practice

ICCPR International Covenant on Civil and

Political Rights (1966)IHRR International Human Rights ReportsILM International Legal Materials

Int JLP & F International Journal of Law, Policy and

the FamilyInt’l & Comp Law Q International and Comparative Law

QuarterlyInt’l Bull Miss Res International Bulletin of Missionary

ResearchInt’l Comm’n Jurists Rev Review, International Commission of

JuristsIsr YB Hum Rts Israel Yearbook on Human Rights

J Church & St Journal of Church and State

J Civ Lib Journal of Civil Liberties

J Soc Wel Law Journal of Social Welfare Law

KCLJ King’s College Law Journal

Med Sc & L Medicine, Science and the Law

Neth Int’l L Rev Netherlands International Law Review

Northern Ireland LQ Northern Ireland Legal Quarterly

Northw UL Rev Northwestern University Law ReviewNYUJ Int’l L & Pol New York University Journal of

International Law and PoliticsODIHR Office for Democratic Institutions and

Human RightsOSCE Organization for Security and Co-operation

in Europe, formerly the Conference forSecurity and Co-operation in EuropeOxford J Leg Stud Oxford Journal of Legal Studies

Pac Rim L & Pol’y J Pacific Rim Law and Policy JournalPat of Prej Patterns of Prejudice

Plen Mtg Plenary Meeting

Pol Quart Political Quarterly

RADIC African Journal of International and

Comparative Law

RCADI Receuil des Cours de l’Acade´mie de Droit

International de la HayeSanta Clara L Rev Santa Clara Law Review

U Chicago L Rev University of Chicago Law Review

Vand J Transnat’l L Vanderbilt Journal of Transnational LawVirginia J Int’l L Virginia Journal of International LawWCRP World Conference on Religion and PeaceWilliam Mary L Rev William and Mary Law Review

YBECHR Yearbook of the European Commission

of Human RightsYearbook Yearbook of the European Convention

on Human Rights

Overview

An appraisal of the development and content of the freedom of thought,conscience and religion has never been more challenging Events sincethe collapse of the former Soviet Union and the aftermath of the attacks

of 11 September 2001 have confronted the traditional concept of dom of religion with an entirely new range of demands These could nothave been anticipated by the drafters of the core freedom of religionArticles in the foundational instruments In the United Nations contextthese are Article 18 of the Universal Declaration on Human Rights(the ‘Universal Declaration’)1 and Article 18 of the InternationalCovenant on Civil and Political Rights (‘the ICCPR’).2 Within the

free-1 The full text of the Universal Declaration is at Annex 1 Article 18 of the Universal Declaration reads as follows:

‘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.’

(Universal Declaration on Human Rights, adopted and proclaimed by GA

Res 217A(III) of 10 December 1948, UN Doc A/3/810 (1949)) 2

The key Articles of the ICCPR are set out in Annex 2 Article 18 of the ICCPR reads as follows:

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, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

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.

3 Freedom to manifest one’s religion or beliefs 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.

Convention for the Protection of Human Rights and FundamentalFreedoms (‘the European Convention’), adopted under the auspices ofthe Council of Europe, the key provision is Article 9.3 Even theDeclaration on the Elimination of all Forms of Intolerance and ofDiscrimination Based on Religion or Belief (‘the 1981 Declaration’),4which was concluded much later and was the first international instru-ment dedicated solely to freedom of religion, did not contemplate recentpatterns of violation which are emerging globally.

Those texts constitute the basic building blocks of the freedom ofreligion and were inevitably shaped by the issues which faced the ori-ginal drafters Prominent areas of contention in the early debates wereresistance to an explicit right to change religion (from various Islamiccountries), doubts about proselytism as an adjunct to the right topractise a religion and, more generally, the ideological oppositionfrom numerous Communist countries to the assertion of rights of theindividual over the interests of the State The extent to which neutralityshould be preserved in State education was also a fundamental, thoughmore recent, concern (in the ICCPR and the 1981 Declaration).However, since those instruments were concluded a number of trendshave tested whether the text of the core provisions is sufficient to addressthe immediate and foreseeable challenges of the future Among such

4 The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’

(International Covenant on Civil and Political Rights (1966), New York,

16 December 1966, in force 23 March 1976, 999 UNTS 171)

3 The key Articles of the European Convention are set out in Annex 4 Article 9 of the European Convention reads as follows.

1 ‘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 worship, teaching, practice and observance.

2 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.’ (European Convention on Human Rights and Fundamental Freedoms (1950), Rome, 4 November 1950 in force 3 September 1953, 213 UNTS 221) 4

The full text of the 1981 Declaration is at Annex 3 (Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief (1981), proclaimed by GA Res 36/55 of 25 November 1981, UN Doc A/36/51 (1982)).

trends is the political momentum in many countries of the former SovietBloc to protect traditional State religion in response to the influx of newreligious movements New religious movements filled the vacuum left

by the abrupt exodus of Communism and are seen as a threat to theprocess of rebuilding the national identity of those countries Obstaclesimposed to prevent the emergence of new religious movements includeprohibitive registration formalities required for their establishment, aswell as widespread prohibitions on religious practice, particularly pro-selytism The protection of traditional State religion as a means ofreigniting national identity is a relatively new issue Until recently, theprotection of State religion has more commonly been a feature of manyIslamic countries where national law is inseparable from religious lawand preservation of the orthodoxy of State religion is paramount.Another recent trend has been the pronounced incidence of religioushatred against Muslims The xenophobia, intolerance and discrimina-tion towards Muslims which followed the events of September 11 causedthe Commission on Human Rights to react with calls for appropriatecontrol of the mass media to prevent incitement to violence and intol-erance towards Islam.5This gave strength to moves which were alreadyafoot in certain countries (for example, Australia) to enact legislation toprohibit vilification on grounds of religion and has since given rise toinitiatives in other countries (notably the United Kingdom) to createreligious offences such as incitement to religious hatred However, therehave been concerns that such a low threshold could, in practice, beapplied to this type of legislation so as to interfere directly with funda-mental aspects of freedom of religion, particularly religious practicethrough teaching and proselytism The risks are inherent in the teaching

of any religion which amounts to the denial of other religions but aregreater in the case of comparative teaching or teaching by one religiousgroup of the beliefs of another

At same time, there has been misplaced concern that the overt tice of Islam is a proxy for ‘extremism’ This has influenced certainEuropean States (notably France and Switzerland) to react againsttraditional Muslim observance, such as the wearing of religious head-dress in State schools, relying on the obligation of neutrality of States ineducation and (in the case of Switzerland) prohibiting religious head-wear as a form of proselytism The same issue has a different dimension

prac-in Turkey where prprac-inciples of secularity are enforced more generally.5

CHR Res 2002/9 (2002) of 15 April 2002.

Fears of extremism, coupled with a lack of understanding of the ments of Islam has resulted in a widespread failure on the part of manyEuropean States to appreciate the importance to Muslims of straight-forward religious practice and observance The 1981 Declaration hasdone much to correct this by providing a detailed explanation of differentforms of manifestation of religion or belief.

require-One other phenomenon of note has been the emergence of politicalparties adopting an overtly religious agenda, with the most radicalparties advocating the introduction of a system of government based

on religious law The aspirations of some religious political parties havegiven rise to concerns over the imposition of religious law on non-adherents Outside the political sphere positive endorsement hasundoubtedly been given recently to the collective, rather than indivi-dual, aspects of religious manifestation through religious associationand church membership (and this goes some way towards dismantlingthe impediments to religious association posed by registrationrequirements)

Recent years have also witnessed a steady growth in recognition of theconscientious implications of compulsory military service This hasserved to demonstrate just how undeveloped are the general principlesconcerning various forms of coercion, particularly coercion to act con-trary to one’s religion or belief and compulsion to disclose one’s beliefs

Of the core freedom of religion Articles, Article 18(2) of the ICCPR andArticle 1(2) of the 1981 Declaration offer explicit protection againstcoercion but only against coercion in religious choice It remains to beseen what future direction these developments will take

Another dimension of recent change has been the escalation of gious intolerance by non-State entities and the corresponding role of theState in combating intolerance Greater emphasis has been placed on thepositive obligations on States to protect rights and freedoms by appro-priate means and it is expected that this principle will see greaterpractical recognition in future years

reli-All these issues will be discussed in detail in later chapters, which willaddress the origins of the text of each of the core freedom of religionArticles and the development of standards applicable to each constituentfreedom

One other observation worth making at the outset concerns theobvious differences between the United Nations and European frame-works The textual similarities between Article 9 of the EuropeanConvention and Article 18 of the Universal Declaration from which it

stemmed are self-evident However, the relative homogeneity of legaland democratic systems across European countries contrasts with thevast range of ideological, religious and cultural foundations of thesystems of government of the nations represented within the Universalsystem In some countries these foundations even go the root of theirbasic conception of the freedom of thought, conscience and religion.Following more than half a century of experience of both the Europeanand United Nations systems, and in the face of new patterns of religiousintolerance in recent years, it is timely to examine critically the pathstaken by each system in developing the standards applicable to religiousfreedom since the Universal Declaration was adopted in 1948, and sincethe European Convention entered into force in 1953.

This work therefore aims to provide an appraisal of the ment of the right to freedom of thought, conscience and religion

develop-at both United Ndevelop-ations and European levels Standards within theUnited Nations system are reflected principally in the work of theHuman Rights Committee and the Special Rapporteur (‘the SpecialRapporteur’)6 appointed by the Commission on Human Rights toexamine incidents and governmental action inconsistent with the

1981 Declaration In addition, wider sources such as the travaux paratoires of most instruments touching upon freedom of religion play

pre´-an essential part Within Europepre´-an jurisprudence, the practice of theEuropean Court on Human Rights (‘the European Court’) and theformer European Commission on Human Rights (‘the EuropeanCommission’) provide the basis for evaluating developing Europeanstandards under the European Convention Although this work is pri-marily aimed at the conclusions to be drawn from a critique of thepractice of the United Nations and European institutions, occasionalreference will be made to other regional initiatives found in the Council

of Europe Framework Convention for the Protection of NationalMinorities and the Organization for Security and Co-operation inEurope (‘OSCE’, formerly the Conference for Security and Co-operation

in Europe), as well as certain systems of national law where they haveparticular relevance

The United Nations and the European systems were selected forexamination because of the historical interrelation between the two

6

The title of the ‘Special Rapporteur on religious intolerance’ was changed to ‘Special Rapporteur on freedom of religion or belief ’ by CHR Res 2000/33 of 20 April 2000.

(given that Article 9 of the European Convention was taken from thetext of Article 18 of the Universal Declaration) However, it is important

to appreciate fully the significance of any apparent departures betweenUnited Nations and European standards and to distinguish genuinefrom supposed paths of divergence Some differences may be explainedmerely by the different role and function played by each of the variousorgans from which applicable standards of religious freedom may bederived or through which they are expressed Limitations of legal com-petence and technical expertise are also relevant Some differences areexplicable only in terms of policy (for which historical trends areparticularly important) while others are attributable to the differentcontexts in which Universal and European standards apply

A thematic approach will be followed as closely as possible out this work in order to discern the advances and reversals on particularissues of recurring importance An in-depth evaluation of apparentdiscrepancies within particular themes will help to expose the signifi-cance of points of divergence A thematic approach also lends itself to anassessment of the future development of standards of religious freedom

through-in such a way that might achieve better consistency between the UnitedNations and European institutions, and may point to the most effectivemeans of utilising the existing organs

Of the major recent works on freedom of religion, that by Tahzib7represents the most comprehensive survey of United Nations instru-ments, and those by Malcolm Evans8and Carolyn Evans9both providepenetrating insight into the decision-making of the European Court andEuropean Commission However, none attempts any detailed thematicevaluation of both European and Universal standards beyond coverage

of the separate historical developments of the major United Nations andEuropean instruments and the occasional comparison between thetwo.10Given the importance of such an evaluation this work attempts

to develop a framework for the discussion of both United Nations and

European jurisprudence Extensive use will be made of the SpecialRapporteur’s reports in order to demonstrate the value of the role ofthe Special Rapporteur in offering more in-depth understanding ofreligious conflict and violation than the barest outline available in theHuman Rights Committee’s review of State reports or the specificinstances considered in individual communications The SpecialRapporteur’s reports offer, in the Universal context, a better apprecia-tion of the dynamics of the freedom of religion which, it will be argued,are all too often overlooked in the decisions of the European institu-tions It is important to be aware of emerging trends in religious intol-erance and to heed the warnings that can only be discerned from anexamination of situations worldwide in which the widest variety ofcultures, religions and values interact It is suggested that theEuropean Court might take into account, far more than hitherto, thedifferent sources and guises of intolerance evidenced globally and antici-pate more fully the implications and potential reach of its decisions.Interrelation between the UN and European systems

The historic connection between the Universal Declaration and theEuropean Convention from which it stemmed deserves special com-ment at this stage It is also important to note some of the practicalobstacles faced by the development of freedom of religion in theUniversal context, which arguably have less relevance to Europe inisolation

Article 9 of the European Convention drew its inspiration and its textfrom Article 18 of the Universal Declaration in pursuance of the expressaim of the European Convention in taking ‘the first steps for collectiveenforcement of certain rights stated in the Universal Declaration’.11Article

9 was to be based as far as possible on Article 18 of the UniversalDeclaration to reduce the risk of devising definitions that were at oddswith those in United Nations instruments The travaux pre´paratoires ofArticle 18 of the Universal Declaration,12and those of subsequent United

11

Preamble to the European Convention For the drafting of the European Convention, see Council of Europe, Collected Edition of The ‘Travaux Pre´paratoires’ of the European Convention on Human Rights, 8 vols., The Hague: Martinus Nijhoff ( 1975–85 ) For commentary, see A H Robertson and J G Merrills, Human Rights in the World, Manchester: Manchester University Press ( 1996 ).

12

For commentary on the drafting of Article 18 of the Universal Declaration, see:

N Robinson, Universal Declaration of Human Rights: Its Origins, Significance, Application

Nations instruments in the field of freedom of religion, demonstrate thatsome of the influences that fashioned the text of Article 18 may be said tohave little relevance to Article 9 of the Convention Some of the mostsignificant issues debated in the formulation of Article 18 of the UniversalDeclaration, such as the right to change religion, accentuate the differencesbetween instruments intended for Universal and European application,were raised with greater force (and were to have lasting impact) in thedebates that led up to Article 18 of the ICCPR13and the 1981 Declaration.14Divergence in the basic conception of the freedom of religion at Universallevel was particularly marked when impetus was given to a UnitedNations initiative on religious intolerance following various anti-Semiticincidents in the early 1960s The General Assembly passed a resolutioncalling for the preparation of a draft declaration and a draft convention

on the elimination of religious intolerance Simultaneously, a draftdeclaration15and a draft convention16were advanced on the elimination

and Interpretation, New York: Institute of Jewish Affairs ( 1958 ); R Cassin, La De´claration Universelle et la Mise en Oeuvre des Droits de l’Homme, 79 RCADI ( 1951 ) 241; B Kaufmann, Das Problem der Glaubens- und Uberzeugungsfreiheit im Vo¨lkerrecht, Zu¨rich: Schulthess Polygraphischer Verlag ( 1989 ), pp 124–46; M Scheinin, ‘Article 18’, in A Eide (ed.), The Universal Declaration of Human Rights: A Commentary, Oslo: Scandinavian University Press ( 1992 ); A Verdoodt, Naissance et Significance de la De´claration Universelle des Droits de l’Homme ( 1964 ), Lourain: Paris Socie´te´ d’e´tudes morales, socials et juridiques, Editions Nauwelaerts ( 1964 ).

13

M J Bossuyt, Guide to the ‘Travaux Pre´paratoires’ of the International Covenant on Civil and Political Rights, Dordrecht/Lancaster: Martinus Nijhoff ( 1987 ) For commentary on the drafting of Article 18 of the ICCPR, see: T van Boven, De Volkenrechtelijke Bescherming van de godsdienstvrijheid, Assen, Netherlands: Van Gorcum ( 1967 );

K J Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, in

L Henkin (ed.), The International Bill of Rights The Covenant on Civil and Political Rights, New York/Guildford: Columbia University Press ( 1981 ).

14 For commentary on the drafting of the 1981 Declaration, see S Liskofsky, ‘The UN Declaration on the Elimination of Religious Intolerance and Discrimination: Historical and Legal Perspectives’, in J E Wood (ed.), Religion and the State: Essays in Honour of Leo Pfeffer, Waco, Texas: Baylor University Press ( 1985 ).

15 United Nations Declaration on the Elimination of All Forms of Racial Discrimination, proclaimed by GA Res 1904 (XVIII) of 20 November 1963 (1963), UN GAOR, 18th Sess., Supp No 15, 1261 Plen Mtg at 35, UN Doc A/5515 (1963).

16

International Convention on the Elimination of All Forms of Racial Discrimination (1965) (New York, 21 December 1965, in force 4 January 1969, 660 UNTS 195, reprinted in 5 ILM 352 (1966); UN GAOR, 20th Sess., Supp No 14, 1406 Plen Mtg

at 47, UN Doc A/6014 (1964) See: E Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination 1965’, 15 Int’l & Comp Law Q ( 1966 ) 996; N Lerner, The U N Convention on the Elimination of All Forms of Racial Discrimination, Alphen aan den Rijn: Sijhoff & Noordhoff ( 1980 ); M Banton, International Action Against Racial Discrimination, Oxford: Clarendon Press ( 1996 ).