This chapter includes two rights: a) the freedom of opinion and expression and b) the freedom of conscience and religion. Although these are two distinctive rights, they are in the same group as they both entail essential conditions for individual personal development. These rights are juxtaposed because freedom of expression is a quintessential aspect of the freedom to hold, practice and share one’s religious beliefs. It is important to note, however, that the freedom of expression is subject to more restrictions than the freedom of religion.
A. The right to freedom of opinion and expression
The freedom of expression is a right without which other rights are difficult to acquire and defend. The right to freedom of expression is rooted in the 17th century struggle of European legislators for freedom of speech. The world has seen a continuing struggle for the freedom of expression, including the freedom of speech and freedom of the press, often going hand in hand with the endeavour to limit the power of governments. The freedom of expression can be considered an essential aspect of the individual’s defence against government, just as the suppression of the freedom of expression is essential to tyranny. Human rights defenders also rely heavily on this right to challenge government indifference to or infliction of human rights abuses. As freedom of expression is a foundation for religious and political activities, it is often exercised in concert with the right to freedom of thought and assembly.
Under present international Conventions, state obligations in relation to freedom of expression are absolute and immediate. At the same time, as with other forms of liberty, completely unrestricted freedom of expression may lead to the infringement on the rights of others. The freedom of expression has been hedged in by a number of limitations and restrictions, often more extensively than other rights. Historically, most limitations have dealt with the expression of sentiments contrary to prevailing institutions or religious, political or other beliefs. In addition, in times of war, governments often restrict the freedom of expression in the interest of national security. As a cornerstone of democracy, the complexity and importance of freedom of expression has lead to extensive case-law before national courts and international supervisory mechanisms.
1. STANDARDS
International human rights law recognises a spectrum of expression, ranging from those forms that must be protected to those that must be punished. Article 19 of both the UDHR and the ICCPR establish the freedom of opinion and expression. Article 19 UDHR stipulates: ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ The CRC and CMW set out freedom of expression in Article 13. The CRC stipulates that states have to assure that a child who is capable of forming his or her own views can express those views freely and that these views be taken into account in accordance with the age and maturity of the child (Article 12). Article 21 CRPD sets out the freedom of expression and opinion, and access to information.
The regional Conventions also contain provisions regarding the freedom of expression: Article 10 ECHR, Article 13 ACHR and Article 9 ACHPR.
The freedom of expression and opinion is a complex right that includes the freedom to seek, receive and impart information and ideas of all kinds through any media. The exercise of this right ‘carries with it special duties and responsibilities’ (see Article 19 ICCPR and Article 10 ECHR). Therefore, in general, certain restrictions or limitations on the freedom of expression are permitted under human rights law. Thus, Article 20(2) of the ICCPR requires states parties to prohibit ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’ CERD also requires states parties to prohibit certain hostile expressions. Article 19 ICCPR stipulates that these limitations ‘shall only be such as are provided by law and are necessary: a) for respect of the rights or reputations of others; b) for the protection of national security or public order (ordre public), or of public health or morals’. Other Conventions add to these limitations: ‘for the moral protection of childhood and adolescence’ (Article 13(4) ACHR) and for the restriction of any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to 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 (Article 13(5) ACHR); for the prevention of disclosure of information received in confidence; and for maintaining authority and impartiality of the judiciary (Article 10 ECHR). In addition, Article 10 ECHR explicitly gives the state broad discretion in licensing of the media.
In the Inter-American system, the Inter-American Court has dealt with freedom of expression in Advisory Opinion No. 5 on ‘Membership in an Association Prescribed by Law for the Practice of Journalism’. A strong correlation between freedom of expression and the right to gain access to information in order to form and express opinions has been recognised in the Inter-American System. In June, 2006, the OAS General Assembly adopted a Resolution that ‘urge[d] the States to respect and promote respect for everyone’s access to public information and to promote the adoption of any necessary legislative or other types of provisions to ensure its recognition and effective application.’
In the African system, the ‘Declaration of Principles on Freedom of Expression in Africa’ was adopted by the African Commission in 2002. It stresses the ‘fundamental importance of freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms’. The Declaration seeks to guarantee the freedom of expression and addresses, inter alia, limitations to the right, the obligation of states to promote diversity of information and private broadcasting, freedom of information, independence of regulatory bodies for broadcast and telecommunications, defamation laws, complaints about media content and attacks on media practitioners. Concerned that, despite the Declaration, the freedom of expression is increasingly restricted in some parts of the African Continent, the African Commission adopted the ‘Resolution on the Situation of Freedom of Expression in Africa’ in 2006. The Resolution calls on member states to take all necessary measures in order to uphold their obligations under the African Charter.
The Danish Cartoon Controversy
What has become known as the Danish cartoon controversy exemplifies the precarious balance between freedom of expression and the repression of expression. In 2006 a Danish newspaper published a series of cartoons depicting the prophet Mohammed as a possible terrorist, in one instance with a bomb in his turban. Many Muslims were outraged because depictions of Mohammed are prohibited in the majority of Muslim communities and likening Muslims to terrorists could incite discrimination and prejudice. Other factions upheld the right of the paper to publish the cartoons as a freedom of expression issue. The Danish cartoon incident sparked mass demonstrations throughout the world resulting in death and extensive damage of property in addition to sparking a fiery debate on international law, freedom of expression and permissible limitations of this right.
The OSCE also addresses freedom of expression. In the Helsinki Final Act (1975), principles guiding relations between participating states include provisions on conditions for journalists and dissemination of information. Both the Madrid document (1983) and the Vienna document (1989) include provisions encouraging exchanges in the media field. Likewise, states committed themselves to facilitating the work of journalists and respecting their copyrights. Paragraph 9 of the 1990 Copenhagen document stipulates that ‘[e]veryone has the right to freedom of expression including the right to communication. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ In order to ensure a high level of commitment with the norms and standards accepted by the OSCE participating states, the position of the OSCE Representative on Freedom of the Media was established in December 1997. The task of the Representative is to observe relevant media developments in OSCE participating states with a view to providing early warning on violations of freedom of expression. In addition, he/she is to assist participating states by advocating and promoting full compliance with OSCE principles and commitments regarding freedom of expression and free media.
Both the CoE and the OSCE have issued declarations on the right to freedom of expression on the internet. In the CoE ‘Declaration on Freedom of Communication on the Internet’ from 30 May 2003, states declared that they must abide by principles that establish, inter alia, that internet content should not be subject to restrictions that go further than restrictions on classical media and that authorities should not deny access to information and other communication on the internet.
In several international fora, particular attention has been paid to the protection of professionals, particularly journalists, whose physical integrity is at stake when freedom of expression is insufficiently guaranteed. The First Protocol (1977) to the 1949 Geneva Conventions provides additional protection to civilian journalists working in areas of armed conflict (war correspondents employed by the military are regarded as ‘soldiers’). Participants at the UNESCO Conference on Press Freedom, Safety of Journalists and Impunity signed the Medellin Declaration: Securing the Safety of Journalists and Combating Impunity in May 2007. The Declaration calls on governments to investigate all acts of violence against journalists and urges governments to adopt international declarations and national law to safeguard journalists’ rights.
Some UN specialised agencies are also committed to the promotion of freedom of expression. For example, UNESCO has promoted freedom of expression, press freedom, independence and pluralism of the media as part of its activities. UNESCO has adopted several resolutions in this regard (see, e.g., ‘Promotion of independent and pluralist media’ (1995), ‘Condemnation of violence against journalists’ (1997) and the ‘Declaration on Promoting Independent and Pluralistic Media in Afghanistan’ (2002)).
2. SUPERVISION
The freedom of expression is reduced by possible limitations under several international standards mentioned above. Moreover, freedom of expression and its internationally accepted limitations can be distorted by government initiatives through propaganda, control of the media and various other measures aimed at restricting the press, e.g., licensing requirements, economic measures or restrictions on access to information. The right to freedom of expression has engendered a substantial body of case-law, in which both the right itself as well its limitations have been further defined.
The Human Rights Committee has dealt with many cases dealing with the right to freedom of expression. It has, for instance, found that imprisoning a trade leader for supporting a strike and condemning a government threat to send in troops violated his right to freedom of expression (Sohn v. Republic of Korea), but convicting a person under a law that criminalised contesting the existence of the Holocaust served a legitimate aim (Faurisson v. France). In another case, the Committee found inadmissible a complaint alleging a violation where the dissemination of anti-Semitic messages via recorded telephone messages was prohibited. The complaint was found inadmissible as hate speech was clearly incompatible with the rights protected in the Covenant (J.R.T. and the W.G. Party v. Canada). The Committee has stated that commercial expression, such as outdoor advertising, is protected by freedom of expression (see, e.g., Ballantyne et al. v. Canada) and that the right to receive information was violated when a journalist was denied full access for no disclosed reason to parliamentary press facilities in his country (Gauthier v. Canada).
Under the auspices of the European system, the European Court has stated that freedom of expression:
[C]onstitutes one of the essential foundations of such a (democratic) society, one of the basic working conditions for its progress and for the development of every man. [...] It is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (Handyside v. The United Kingdom).
Many cases have been brought before the former European Commission and the Court regarding the freedom of expression; several deal with the rights of journalists to freedom of expression. In Jersild v. Denmark, the Danish government prosecuted and convicted a journalist for disseminating the racist views of others on television.
The Court found that the interference with the right to freedom of expression of the applicant was not ‘necessary for the protection of the rights and reputation of others’ as the author had portrayed the racist views as those of s group of public concern and noted that they were anti-social. In a case of Austrian journalists found guilty in domestic courts for defamation, the Court found that politicians may be subject to stronger public criticisms than private citizens (see, e.g., Lingens and Oberschlick v. Austria). The Court found the sentencing of an author, charged with disseminating information on an illegal separatist organisation, in violation of the right to freedom of expression, as the charges were disproportionate to the aims pursued – the impugned article was never actually disseminated (Halis v. Turkey). In another case, the Court found that convicting a defence counsel of defamation for strongly criticising a public prosecutor’s decision not to charge a potential defendant, who was then able to testify against her client, violated her right to freedom of expression (Nikula v. Finland). In Kudeshkina v. Russia, the Court held that there had been a violation of freedom of expression on account of the author’s dismissal from the judiciary having been a disproportionately severe penalty for statements she had made in the media in which she had criticised higher judicial officials. The Court has found that state monopoly on broadcasting constitutes an interference with the right to freedom of expression (Informationsverein Lentia et al. v. Austria). It has found restrictions on the rights to freedom of expression of public employees justified (see, e.g., Ahmed et al. v. The United Kingdom). Regarding the right to receive information, it has found that this right does not necessarily impose a positive duty on the state to collect and disseminate information (Guerra v. Italy). The Court has found that Austrian courts had overstepped their margin of appreciation by issuing an injunction on a company banning it from comparing its sale price to that of a competitor without also mentioning differences in their reporting styles (Krone Verlag GmbH & Co KG v. Austria (no. 3)). In Otto-Preminger-Institut v. Austria, concerning a film which challenged Christian beliefs, the Court found the seizure of the film justified.
Cases brought before the Inter-American Commission have among other issues dealt with violence against or murder of journalists, intimidation, threats, and harassment (see, e.g., Bishop Gerardi v. Guatemala (Case 7778)). The Inter-American Court has dealt with preventive censorship in a case where the exhibition of a ‘blasphemous’ film was prevented. In this case, the Court stated that although some prior censorship is allowed, prior censorship on grounds of blasphemy falls outside the permitted category of ‘moral protection of the young’. The Court therefore found a violation of the right to freedom of expression (Olmedo Bustos et al. v. Chile (‘The Last Temptation of Christ’ Case)).
The Inter-American Court has issued an advisory opinion finding that mandatory membership in a professional association for the practice of journalism could not be justified as it deprived non-licensed journalists of their rights under the American Convention (Advisory Opinion OC-5/85 of 13 November 1985, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism). The Court has also dealt with indirect restrictions on freedom of expression, the right to the truth and the right to reply. According to the Court, the freedom of expression
has both an individual and a social dimension: it requires that, on the one hand, no one may be arbitrarily harmed or impeded from expressing his own thought and therefore represents a right of each individual; but it also implies, on the other hand, a collective right to receive any information and to know the expression of the thought of others. These two dimensions must be guaranteed simultaneously (Ivcher Bronstein v. Peru).
The Court has established that, according to the protection granted by the American Convention, the right to freedom of thought and expression includes ‘not only the right and freedom to express one’s own thoughts, but also the right and freedom to seek, receive and impart information and ideas of all kinds’ (López Álvarez et al. v. Honduras). On this note the Court has held that the state has a positive obligation to ensure that laws and regulations governing restrictions to access to state-held information comply with the Convention’s parameters and restrictions may only be applied for the reasons allowed by the Convention; this also relates to the decisions on this issue adopted by domestic bodies (Claudio Reyes et al. v. Chile).
In the African system, the African Commission on Human and Peoples’ Rights has addressed the right to freedom of expression in diverse realms. It has, inter alia, found the detention of members of opposition parties and trade unions under legislation outlawing all political opposition during a state of emergency a violation of the freedom of expression; it has found that the failure of a state to investigate attacks against journalists violates their right to express and disseminate information and opinions and also violates the public’s right to receive such information and opinions (Sir Dawda K. Jawara v. The Gambia, Communications 147/95 and 149/96). The Commission has held that state harassment with the aim of disrupting legitimate activities of an organisation that informs and educates people about their rights constitutes a clear violation of the right to freedom of expression. Finally, in a case regarding the trial and execution of community organisation leaders following a rally, the Commission stressed the close relationship between the right to freedom of expression and the rights to association and assembly. Because of that relationship, the Commission found that the severe punishments inflicted as a result of the rally were inconsistent with the right to freedom of expression (International Pen, Constitutional Rights Project, Interrights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications 137/94, 139/94, 154/96 and 161/97). In a case regarding the incommunicado detention of journalists the Commission ruled that imprisoning journalists and banning the entire free press in the country violated Article 9 of the Charter (Article 19 v. Eritrea, Communication 275/2003). In discussing the importance of freedom of expression, the Commission has stated: ‘Freedom of expression is vital to an individual’s personal development, his political consciousness and participation in the conduct of public affairs in his country.’ (Mediarights Agenda et al. v. Nigeria, Communications 105/93, 128/94, 130/94 and 152/96).
Recognising the importance of freedom of expression, international fora and national governments have sought to promote additional standards to protect particular elements of this right. Several governments have enacted legislation to improve access to information; to provide adequate access to media; to protect employees from reprisals for disclosing illegal activities of their employers; and to provide data protection so that individuals have access to their personal files held by public authorities and to ensure that such information is withheld from all persons not expressly entitled to it.
International organisations have addressed the implementation and supervision of the right to freedom of expression by, for instance, appointing experts on the issue. In 1993, the Human Rights Commission appointed a Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (Resolution 1993/45 of 5 March 1993). The mandate was assumed by the Human Rights Council. The rapporteur has stated that ‘the exercise of the right to freedom of opinion and expression is a clear indicator of the level of protection and respect of all other human rights in a given society’ and has touched upon such issues as how the right to freedom of opinion and expression helps promote and strengthen democratic systems, and its benefits in other areas, such as in the effectiveness of education and information campaigns on HIV/AIDS prevention.
In 1997, the Inter-American Commission created the Office of the Special Rapporteur for Freedom of Expression. The mandate of the Special Rapporteur is to stimulate awareness of the importance of observance of the right of freedom of expression, to make recommendations to states for adoption of progressive measures to strengthen the right, to prepare reports and carry out studies, and to respond to petitions or other violations of the right in OAS member states. The Special Rapporteur may also call on the Inter-American Commission to solicit precautionary measures from the member states to protect the personal integrity of journalists and media correspondents who are facing threats or the risk of irreparable harm.
Within the OSCE framework, standards have been drawn up to protect journalists and much effort has been devoted to promoting the exchange of ideas and expertise on actual implementation of the freedom of the press. The OSCE established the position of Representative on Freedom of the Media in 1997. The function of the Representative is to observe relevant media developments in OSCE participating states with a view to providing early warning on violations of freedom of expression. The Representative also assists states by advocating and promoting full compliance with OSCE principles and commitments regarding freedom of expression and free media (see II§5).
The UN Special Rapporteur on the Promotion and Protection of the Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression adopted the Joint Declaration on Diversity of Broadcasting on 14 December 2007, condemning the continued attacks on journalists and the possible challenge to editorial independence posed by concentration of media ownership. Noting the importance of diversity in the media for the free flow of information and ideas in society, the Declaration calls for different broadcasters to have access to a variety of communication platforms. The Declaration also recognised the interdependence of a free media and an independent judiciary, and that concentration in ownership of the media and the means of communication might challenge editorial independence. In addition, it condemned criminal defamation as an unjustifiable restriction to freedom of expression.
B. The right to freedom of conscience and religion
The guarantees of freedom of conscience and religion are closely related to other substantive rights. For instance, the rights to freedom of expression, assembly and association are fundamental to holding religious beliefs and practising one’s religion. Thoughts and views are intangible before they have been expressed, and convictions are valuable for a person only if he or she can express them. The private freedom of thought and religion is an absolute right that does not permit any limitation. The guarantee of the value of freedom of thought and religion implies that one cannot be subjected to treatment intended to change one’s process of thinking, be forced to express thoughts, to change opinion, or to divulge a religious conviction; thus, the right to freedom of thought, conscience, religion, belief and opinion is closely associated with the right to privacy. No sanction may be imposed for holding any view, or for changing religion or conviction; and the freedom of thought and religion protects against indoctrination by the state.
The public aspect of the freedom, the right to manifest one’s belief in worship, observance, practice or teaching, is subject to limitations and defining the meaning of the freedom is complex; for instance, may refusal to serve in the military or pay taxes be justified on grounds of religion? Many states include guarantees for the right to freedom of thought, conscience, religion and belief in their constitutional traditions; in laws and regulations provisions are incorporated to prevent and punish interference with legitimate manifestations of religion or belief. Nevertheless, violations of the principles of non-discrimination and tolerance in the area of religion or belief are extensive; millions of people enjoy the freedom of thought, conscience, religion and belief only to a limited extent. Most human rights Conventions do not allow governments to impose as many limitations on freedom of religion as on comparable rights such as freedom of assembly and freedom of expression. In the last decades increasing political attention has been given to the freedom of religion, notably in Europe, in the light of religious intolerance.
1. STANDARDS
One of the first standards for protection against religious intolerance was the founding document of the Republic of the United Netherlands, the Union of Utrecht from 1579, which stipulated that no one will be persecuted because of his religion. In 1648, in the Treaty of Westphalia, a minimum of freedom of religion was guaranteed: the right to freedom of religion in private and equal rights in all other fields of public life, regardless of religion. In the 18th and 19th centuries, several other treaties protecting religious rights followed.
With the founding of the United Nations, protection against religious intolerance found its way into modern international standard setting. The freedom of religion or belief is expressly recognised in Article 18 UDHR and, inter alia, further defined in Article 18 ICCPR. Article 27 ICCPR refers, inter alia, to religious minorities and stipulates that persons belonging to such minorities shall not be denied the right to profess and practice their religion. Article 14 CRC recognises the right of the child to freedom of thought, conscience and religion and the right of the parents/legal guardians to provide guidance to the child in the exercise of this right. Article 12 CMW recognises the right of migrant workers and their family members to freedom of thought, conscience and religion. Under the 1951 Convention Relating of the Status of Refugees, refugees may seek asylum on grounds of well-founded fear of being persecuted for reasons of religion (Article 1(A)(2)). In addition, religious groups are protected under the Convention on the Protection and Punishment of the Crime of Genocide (1948) (Article 2).
In 1981, the UNGA adopted the ‘Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief’ after a long process of drafting. Progress had been very slow as the issue of freedom of conversion or change of religion was a major obstacle to consensus. Eventually, explicit reference to the freedom to change one’s religion or belief was excluded although Article 8 confirms, by implication, the continuing validity of the freedom to change one’s religion. The Declaration confirms that the right of freedom of thought, conscience and religion includes the freedom of everyone ‘to have a religion or whatever belief of his choice’ and that ‘no one shall be subjected to discrimination on grounds of religion or belief, by any State, institution, group of persons or a person’.
Another relevant document is the ‘Declaration on the Right to Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ (1992) emphasising, among other things, obligations of states to protect and promote the religious identities of persons belonging to minorities within their territories.
All regional Conventions contain provisions regarding the freedom of thought and religion: Article 9 ECHR defines the right to freedom of thought, conscience and religion in the same words as Article 18 ICCPR. The First Protocol to the ECHR includes a provision ensuring education and teaching in conformity with the parents’ religious and philosophical convictions. Article 12 ACHR and Article 8 ACHPR define the right similarly. These Conventions also set out restrictions; for instance, Article 12 ACHR stipulates that these freedoms ‘may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others’.
The OSCE framework also addresses freedom of thought and religion. For instance, Principle VII of the OSCE Helsinki Final Act (1975) stipulates that the participating states ‘will recognise and respect the freedom of the individual to profess and practise, alone or in community with others, religion or belief, acting in accordance with the dictates of his own conscience’. States also pledge to respect the freedom of religion and belief of persons belonging to national minorities living in their territory. Another example is Article 16 of the Vienna Document (1989), which stipulates that states will take effective measures to prevent and eliminate discrimination against individuals and communities on the grounds of religion or belief, and that they have to foster a climate of mutual tolerance and respect between believers of different communities, as well as between believers and non-believers. Furthermore, the CSCE Charter of Paris for a New Europe (1990) affirms that every individual, without discrimination, has the right to freedom of religion and thought. In addition to regional recognition, religious rights are included in documents concerning women’s rights. Article 12 of the Beijing Declaration and Platform for Action, from the Fourth World Conference on Women in 1995, states that the empowerment and advancement of women includes the right to freedom of religion.
2. SUPERVISION
The international supervisory bodies have dealt with a number of communications regarding violations of the freedom of thought and religion. The Human Rights Committee has dealt with several individual communications regarding freedom of thought and religion. For instance, the Committee has found forbidding prisoners wearing a beard and worshipping at religious services and taking away their prayer books a violation of this right. The Committee affirms that: ‘[T]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts and that the concept of worship extends to ritual and ceremonial acts giving expression to belief, as well as various practices integral to such acts’ (Boodoo v. Trinidad and Tobago). The Committee has, however, found that requiring a Sikh who wears a turban in daily life to wear a safety-helmet at work does not violate his right to religious freedom (Singh Bhinder v. Canada). Similarly, the European Court of Human Rights held that refusing a Muslim medical student entry into classes and examinations in accordance with a school ban on head scarves upheld the principles of secularism and equality between men and women and was necessary in a democratic society (Leyla Sahin v. Turkey).
In recent years the Committee has departed from its previous jurisprudence, stating that conscientious objection to military service can be derived from Article 18 ICCPR (General Comment 22). In this General Comment, the Committee, inter alia, ‘views with concern any tendency to discriminate against any religion or belief 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’. The Committee states, inter alia, that Article 18(2) bars coercion that would impair the right to retain one’s religion or belief, including threats of violence and that designated state religions may not serve as justifications of violations of the right to freedom of religion.
The ‘Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief’ stipulates that all states must take effective measures to prevent and eliminate discrimination on the grounds of religion or belief. As a UNGA resolution, the Declaration has no machinery for supervision or implementation of the principles and measures it stipulates but, in 1986, the Human Rights Commission appointed a Special Rapporteur on Religious Intolerance whose mandate is based on the Declaration. The Special Rapporteur, inter alia, writes reports, carries out country visits, receives communications and makes recommendations to states. The Special Rapporteur’s mandate was assumed by the Human Rights Council.
Within the regional systems several cases regarding freedom of thought and religion have been brought before the supervisory mechanisms. The European Court of Human Rights has decided numerous cases regarding the right to freedom of conscience and religion, many of which have dealt with the freedom of religion in Greece. The Court has found that states may not impose overly stringent requirements for operating a place of worship (Manoussakis v. Greece). Article 9 protects non-religious beliefs; the Court has said that the values of the article are the foundation of a democratic society: ‘It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but is also a precious asset for atheists, agnostics, sceptics and the unconcerned’ (Kokkinakis v. Greece).
Another aspect of religious freedom is the right of parents to ensure that the religious or moral education of their children conforms to their own belief. Here the Court has stated that the state is forbidden to pursue an aim of indoctrination that might be considered as not respecting the parents’ religious and philosophical convictions (Kjeldsen, Busk Madsen and Pedersen v. Denmark). In 2007, the Court reaffirmed that compulsory religious classes in Turkey violated the right of parents to conduct religious training in conformity with their own beliefs (Eylem Zengin v. Turkey). Further to indoctrination, the Court has made a distinction between ‘improper proseltysm’ and ‘bearing witness to Christianity’, the former possibly entailing brainwashing or violence (Kokkinakis v. Greece).
Finally, in a controversial communication regarding assisted suicide, it was stated that freedom of thought under Article 8, that had hitherto included beliefs such as veganism and pacifism, could be applied to the applicant’s belief in and support for the notion of assisted suicide for herself. This was rejected by the Court as her claims did not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the ICCPR (Pretty v. The United Kingdom), citing, inter alia, a case where the European Commission had found that not all acts which are motivated by religion or belief constitute ‘religious practice’ (Arrowsmith v. The United Kingdom).
In regard to the right to freedom of conscience and religion under the Inter- American system, the Commission has ruled on a number of cases concerning Jehovah’s witnesses and legitimate limitations of the right. The Commission has found that prosecuting members of that religion for refusing to swear oaths of allegiance, recognise the state and its symbols and to serve in the military is a violation of the right (Jehovah’s Witnesses v. Argentina (Case 2137)). The Court has also ruled that Article 12(3) protects the right of indigenous people to maintain access to ancestral lands, where their religion dictates the dead must be buried (Case of Plan de Sánchez Massacre v. Guatemala (Series C No. 105)).
The African Commission has also dealt with the freedom of religion; it has, for instance, found harassment of Jehovah’s witnesses and religious leaders, assassinations and death threats aimed at them and destruction of religious structures in violation of the right (Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v. Zaire, Communications 25/89, 47/90, 56/91, 100/93). It has also stipulated that the expulsion of political activists was denying them, inter alia, the right to freedom of conscience in violation of Article 8 ACPHR (Amnesty International v. Zambia, Communication 212/98). In a case regarding the use of cannabis and the Rastafarian religion, the Commission noted, inter alia, that the freedom to manifest one’s religion or belief ‘does not in itself include a general right of the individual to act in accordance with his or her belief. While the right to hold religious belief should be absolute, the right to act on those beliefs should not be. As such the right to practice one’s religion must yield to the interests of society in some circumstances.’ (Garreth Anver Prince v. South Africa, Communication 255/2002).