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Research on freedom of speech - pt2

United Nations General Assembly, sixty-seventh session, 13th August 2012, document ref. A/67/303

The Secretary-General has the honour to transmit to the members of the General Assembly the interim report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, submitted in accordance with General Assembly resolution 66/168.

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15. Countless reports of grave violations of the right to freedom of religion or belief relate to converts and those who try to convert others by means of non-coercive persuasion. This has become a human rights problem of great concern which occurs in various parts of the world and seems to stem from different motives. For instance, abuses are perpetrated in the name of religious or ideological truth claims, in the interest of promoting national identity or protecting societal homogeneity, or under other pretexts such as maintaining political and national security. While some undue restrictions on the rights of converts or those trying non-coercively to convert others are undertaken by State agencies, other abuses, including acts of violence, stem from widespread societal prejudices. Violations in this sensitive area also include forced conversions or reconversions, again perpetrated either by the State or by non-State actors. In addition, the rights of converts or those trying non-coercively to convert others are sometimes questioned in principle. The Special Rapporteur has therefore decided to put a thematic focus on this issue in the present report in order to contribute to a clarification of the rights of converts and those trying non-coercively to convert others as inextricable dimensions of freedom of religion or belief.

16. The right to freedom of thought, conscience, religion or belief has manifold facets. In the area of conversion, at least four subcategories warrant systematic attention: (a) the right to conversion (in the sense of changing one's own religion or belief; (b) the right not to be forced to convert; (c) the right to try to convert others by means of non-coercive persuasion; and (d) the rights of the child and of his or her parents in this regard. [...]

17. Article 18 of the Universal Declaration of Human Rights explicitly guarantees the "freedom to change" one's religion or belief  as an inextricable component of the human right to freedom of religion or belief. While subsequent United Nations instruments use slightly different wording, the right to conversion remains fully protected. Article 18 of the International Covenant on Civil and Political Rights provides that freedom of thought, conscience and religion includes "freedom to have or adopt a religion or belief of his choice". Article 18 (2) was included partly to reinforce the protection of the right to conversion, stating that "[n]o one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice". Article 1 of the 1981 Declaration refers to everyone's "freedom to have a religion or whatever belief of his choice".

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19. It is generally agreed that within the ambit of freedom of religion or belief, the forum internum, namely, the internal dimension of a person's religious or belief-related conviction, enjoys absolute protection. In this regard, the forum internum differs from external manifestation of religion or belief, which can be restricted under certain conditions and in accordance with certain criteria. As pointed out by the Human Rights Committee, the forum internum also covers everyone's freedom to have or adopt a religion or belief of one's choice and this freedom is protected unconditionally. Consequently, the right to conversion has the rank of an absolutely protected right within freedom of religion or belief and does not permit any limitations or restrictions for any reason.

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21. States therefore have a number of obligations vis-a-vis the right to conversion. First, States should respect everyone's right to conversion as a forum internum component within freedom of religion or belief, for example, by abolishing punishments against converts and removing administrative obstacles. Moreover, States are obliged to protect the right to conversion against possible third-party infringements, such as violence or harassment against converts by their previous communities or their social environment. In addition, States should promote a societal climate in which converts can generally live without fear and free from discrimination.

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3. Right to try to convert others by means of non-coercive persuasion.

26. Freedom of religion or belief is not confined to the dimension of a person's forum internum but also includes the freedom to manifest one's religion or belief in external acts, such as "worship, observance, practice and teaching". Such forum externum manifestations can be undertaken "either individually or in community with others and in public or private". It cannot be denied that this covers non-coercive attempts to persuade others, sometimes also called "missionary work". Communicative outreach activities aimed at persuading others, including religious discourse, can be further based on article 19 (2) of the International Covenant on Civil and Political Rights, which provide s that the right to freedom of expression 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 his choice".

27. Similar to freedom of expression, freedom of religion or belief has a strong communicative dimension which includes, inter alia, the freedom to communicate within one's own religious or belief group, share one's conviction with others, broaden one's horizons by communicating with people of different convictions, cherish and develop contacts across State boundaries, receive and disseminate information about religious or belief issues and try to persuade others in a non-coercive manner. Indeed, freedom of religion or belief and freedom of expression are two mutually reinforcing human rights. In this spirit, article 6 of the 1981 Declaration confirms that the right to freedom of thought, conscience, religion or belief includes the freedoms "(d) to write, issue and disseminate relevant publications in these areas", "(e) to teach a religion or belief in places suitable for these purposes", and "(i) to establish and maintain communications with individuals and communities in matters of religion or belief at the national and international levels".

28. Unlike the forum internum dimension as discussed above (namely, the right to conversion and the right not to be forced to convert), manifestations of one's religion or belief in the forum externum do not enjoy absolute protection. However, the decisive point in international human rights law is that the burden of proof always falls on those who argue on behalf of restrictions, not on those who defend a right to freedom. The relationship between freedom and its possible limitation is a relationship between rule and exception. In case of doubt, the rule prevails and exceptions always imply an extra burden of argumentation, including clear empirical evidence of their necessity and appropriateness. Moreover, any restrictions imposed must meet all the critera set out in article 18 (3) of the International Covenant on Civil and Political Rights, according to which "[f]reedom to manifest one's religion or belief 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". Thus, limitations imposed on the right to try to convert others require a legal basis; they must pursue one of the legitimate aims exhaustively listed in article 18 (3); they should be clearly and narrowly defined; they must be proportionate; and they should not be implemented in a discriminatory manner. By contrast, general provisions against "proselytism", a term that often remains undefined or merely vaguely circumscribed while typically carrying negative connotations would not suffice to meet the criteria prescribed in article 18 (3).

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45. In addition to criminal and administrative sanctions imposed by States or other restrictive State measures, individuals or groups trying to persuade others are often confronted with societal prejudices that sometimes escalate into fully fledged paranoia and concomitant acts of violence. This can even affect persons or communities who merely offer peaceful invitations. Members of religious communities that have a reputation  of being generally committed to missionary work may suffer from harassment, hostility and violence, regardless of whether or not they are personally engaged in any such activities.

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D. Widespread misunderstandings

51. Freedom of religion or belief in the broad field of conversion is not only violated in practice; it is sometimes also questioned in principle. In discussions with representatives of Governments, members of various religious or belief communities and other stakeholders in society and academia, the Special Rapporteur has come across perceptions and conceptualizations that may lend intellectual support to undue infringements, in particular of the rights of converts and those trying to convert others by means of non-coercive persuasion. He therefore briefly addresses some typical misunderstandings.

1. Disruption of peace and harmony

52. The most widespread objection against the right to try non-coercively to convert others concerns the fear that this may lead to a disruption of societal peace and interreligious harmony. A number of Governments have taken up such objections and turned them into a general argument of "public order" which they use to restrict the right to try to convert others even if such attempts are undertaken by means of strictly non-coercive persuasion. [...]

53. With regard to this issue, the Special Rapporteur emphasizes that he obviously shares an interest in promoting peaceful relations among people of different religions or beliefs. He further notes that freedom of religion or belief itself should be seen as conducive to peace. This is reflected, for example, in the 1948 Universal Declaration of Human Rights, which proclaims in its preamble that respect for human rights constitutes "the foundation [...] of freedom, justice and peace in the world".

54. The peace facilitated by human rights in general and freedom of religion or belief in particular is built on due recognition of people's most diverse convictions and concomitant practices. This includes respect for the right of individuals to communicate on questions of religion or belief, reach out across communities and State boundaries, broaden their own horizons or try to persuade others in a non-coercive manner. Thus, a society respectful of freedom of religion or belief for everyone, as guaranteed in international human rights law, will likely be a religiously pluralistic society, with open boundaries among different communities and subcommunities, and will also be open to peaceful competition and intellectual controversies on religious and belief related questions.

55. The specific concept of peace underlying international human rights clearly differs from the authoritarian control agendas that are sometimes also put forward in the name of "peace" or "harmony". However, a peace based on respect for the dignity and freedom of all human beings goes deeper and has a better chance of sustainability than any societal order organized around such ideas as hegemony, customs or mere authority. Respect for human dignity, in turn, is not conceivable without recognition of every human being's freedom to communicate about issues of religion or belief, including the right to try to persuade others in a non-coercive manner.

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63. In his daily work, however, the Special Rapporteur receives numerous reports of grave violations of the right to freedom of religion or belief in the broad area of conversion. In the present report, he has discussed this topic, distinguishing four subcategories that deserve systematic attention: (a) the right to conversion (in the sense of changing one's own religion or belief); (b) the right not to be forced to convert; (c) the right to try to convert others by means of non-coercive persuasion; and (d) the rights of the child and of his or her parents in this context.

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C. Right to try to convert others by means of non-coercive persuasion

66. In addition, many States impose tight legislative or administrative restrictions on communicative outreach activities. This may unduly limit the right to try to convert others by means of non-coercive persuasion, which itself constitutes an inextricable part of freedom of religion or belief. Moreover, many such restrictions are conceptualized and implemented in a flagrantly discriminatory manner, for instance, in the interest of further strengthening the position of the official religion or dominant religion of the country while further marginalizing the situation of minorities. Members of religious communities that have a reputation of being generally engaged in missionariy activities may also face societal prejudices that can escalate into paranoia, sometimes even leading to acts of mob violence and killings.

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E. Recommendations to various actors

68. In general, the Special Rapporteur calls upon States to consistently respect, protect and promote the human right to freedom of religion or belief in the area of conversion. He reiterates that the right of conversion and its correlate, the right not to be forced to convert or reconvert, belong to the forum internum dimension of freedom of religion or belief, which has the status of unconditional protection under international human rights law. Furthermore, freedom of religion or belief includes the right to try to persuade others in a non-coercive manner. Any restrictions on missionary activities deemed necessary by States must therefore meet all the criteria set out in article 18 (3) of the International Covenant on Civil and Political Rights. [...]

69. With regard to domestic legal provisions, including constitutions, legal statutes, by-laws and official interpretations of laws, the Special Rapporteur recommends that:

(a) States should clarify that the human right to freedom of religion or belief includes the right to convert and the right not to be forced to convert, both of which are unconditionally protected [...]

(f) States should further clarify that freedom of religion or belief includes the right to try to convert others by non-coercive means of communication and persuasion. This includes, inter alia, the dissemination of literature and other material relating to religion or belief [...]

70. With regard to different areas of administration, the Special Rapporteur recommends that: [...]

(d) States should give clear direction and training to law enforcement and similar agencies to ensure that they refrain from unduly infringing on the right to try to convert others by means of non-coercive persuasion; [...]

72. With regard to non-State actors, the Special Rapporteur recommends that: [...]

(c) Religious leaders and opinion formers should become aware and acknowledge that not only is conversion to their own religion or belief protected, but that any decision to replace one's current religion or belief with a different one or to adopt atheistic views is equally protected;

(d) Religious communities, interfaith groups and civil society and developmental aid organizations are encouraged to address issues of conversion and missionary activities in voluntary codes of conduct. They should use this as an opporunity to also promote more respectful attitudes towards converts and persons engaged in non-coercive missionary activities.

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Document available here:   http://www.ohchr.org/EN/HRBodies/SP/Pages/GA67session.aspx




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