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Research on freedom of speech - pt1

United Nations General Assembly.  Sixtieth Session.  30th September 2005.  Document Reference: A/60/399

Elimination of all forms of religious intolerance

Note by the Secretary-General

The Secretary-General has the honour to transmit to the members of the General Assembly the interim report of the Special Rapporteur of the Commission on Human Rights on freedom of religion or belief, Asma Jahangir, submitted in accordance with General Assembly resolution 55/199.


2. Applicable standards

46. The Special Rapporteur notes that, according to universally accepted international standards, the right to freedom of religion or belief includes the right to adopt a religion of one's own choice, the right to change religion and the right to maintain a religion. She also notes that these aspects of the right to freedom of religion or belief have an absolute character and are not subject to any limitation whatsoever.

47. Article 18 of the Universal Declaration of Human Rights states that the right to freedom of thought, conscience and religion "includes freedom to change [one's] religion or belief". Article 1 of the 1981 Declaration states that "[t]his right shall include freedom to have a religion or whatever belief of [one's] choice" and that "[n]o one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice".

48. The content of article 18, paragraph 1, of the International Covenant on Civil and Political Rights (ICCPR) is the result of a lengthy process of discussion in the Human Rights Commission and the third Committee of the General Assembly. The wording initially proposed was "Everyone should have the freedom to maintain or to change his religion", but, following opposition by some countries which feared that the formulation would lend encouragement to proselytism and anti-religious propaganda, it was changed to "have or adopt a religion or belief of his choice", a wording that was adopted without dissent. This final version of the provision was undoubtedly intended to include the right to convert from one religion or belief to another. The Human Rights Committee, in paragraph 5 of its general comment No. 22 (1993) on article 18, observed that "the freedom to 'have or adopt' a religion or belief necessarily entails the freedom to choose a religion or belief, including 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."

49. The fact that article 18, paragraph 3, of the Covenant to be imposed only on the manifestation of religion or belief clearly assigns the freedom to "have or to adopt a religion or belief" to the first part of paragraph 1, freedom of thought, conscience and religion, also called forum internum, which cannot be interfered with in any way. In its general comment No. 22 the Human Rights Committee states clearly that article 18 "does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice" (para. 3).

50. This prohibition of limitation is reinforced by paragraph 2 of the same article, which provides that "[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." The fact that the prohibition of coercion was made explicit shows that the drafters of the Covenant found the freedom provided by paragraph 1 to be so significant that any form of coercion by the State was impermissible, independently of whether the coercion was physical or in the form of State-sponsored incentives. According to the Human Rights Committee:

"Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant, are similarly inconsistent with article 18.2" (general comment No. 22, para. 5).

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58. In this respect, the Special Rapporteur would mainly refer to the arguments made earlier in this report. The right to change religion is absolute and is not subject to any limitation whatsoever. Any legislation that would prohibit or limit the right to change one's religion would be contrary to international human rights standards and the provisions mentioned above.

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61. Also, while not explicitly including religious rights, article 19 of ICCPR, which protects freedom of expression, is formulated in a way that also covers missionary activities: "[T]his right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of [one's] choice". The Human Rights Committee's constant jurisprudence has deemed the protection afforded by article 19 extremely strong.

62. Whereas the scope of freedom afforded to persons for the practice of their religion or belief by producing and distributing information about their religion or belief is wide, certain limitations can be imposed in accordance with article 18, paragraph 3, of the Covenant. However, it should be noted that this article allows for restrictions only in very exceptional cases. In particular the fact that it mentions the protection of "fundamental rights and freedoms" (emphasis added) of others as a ground for restriction indicates a stronger protection than for some other rights whose limitation clauses refer simply to the "rights and freedoms of others" (e.g. article 12, 21 and 22). It could indeed be argued that the freedom of religion and belief of adults basically is a question of individual choice, so any generalized State limitation (e.g. by law) conceived to protect "others'" freedom of religion and belief by limiting the right of individuals to conduct missionary activities should be avoided.

63. The test for legality of a prohibition of any act motivated by belief or religion is therefore extremely strict. In practice, the European Court of Human Rights has given some guidance concerning the distinction between permissible religious persuasion, on the one hand, and coercion on the other. In Larissis v. Greece, the court decided that an officer of the Greek army had exploited his position of authority over his subordinates in trying to convert them. However, in Kokkinakis v. Greece, the Court did not find any violation when Jehovah's Witnesses called on their neighbour to discuss religious issues with her since that act, in the Court's view, fell under "bearing Christian witness" and was therefore protected by article 9 of the European Convention on Human Rights. Judge Pettiti, in his partly concurring opinion, made this particularly clear: "Freedom of religion and conscience certainly entails accepting proselytism, even where it is not respectable. Believers and agnostic philosophers have a right to expound their beliefs, to try to get other people to share them and even to try to convert those whom they are addressing."

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88. The Special Rapporteur reiterates that, as a principle, no one should be imprisoned because of his or her religious beliefs or the exercise of his or her right to freedom of religion or belief.

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96. The right to adopt a religion of one's own choice, to change or maintain a religion is a core element of the right to freedom of religion or belief and may not be limited in any way by the State. When it is challenged by non-State actors, States have a positive obligation to ensure the enjoyment of this right.

97. Missionary activities and other forms of propagation of religion are part of the right to manifest one's religion or belief. They may be limited only under restrictive conditions, and the Special Rapporteur disapproves of the criminalization of certain acts specific to the propagation of one's religion.


http://www2.ohchr.org/english/issues/religion/docs/A_60_399.pdf

Available at:  http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Annual.aspx



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