This page intentionally left blank FREEDOM OF RELIGION 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. PAUL M. TAYLOR is a Barrister (Lincoln’s Inn). FREEDOM OF RELIGION UN and European Human Rights Law and Practice PAUL M. TAYLOR camʙʀɪdɢe uɴɪveʀsɪtʏ pʀess Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cʙ2 2ʀu, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521856492 © Paul M. Taylor 2005 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. 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CONTENTS Foreword by David Harris page ix 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 Overview 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 Apostasy 50 Summary 53 Pressure to change religion 54 Introduction 54 Missionary activity, imperialist ambitions, colonialism and war 55 v vi CONTENTS Social concern and inducements 57 Proselytism 64 Grounds of opposition to proselytism 64 Rights and freedoms of others 70 Coercion 73 Hate speech 77 Blasphemy, disparagement and gratuitous offence 84 Conclusion 111 3Thescopeoftheforum internum beyond religious choice 115 Introduction 115 ‘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 Employment 138 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 Summary 159 ‘Indirect’ protection for the forum internum 160 Therightsandfreedomsofothersasagroundoflimitation 161 Education 165 ‘Respect’ for parental convictions based on indoctrination 166 Alternative approaches: manifestation and coercion to act contrary to one’s beliefs 175 Summary 182 The use of anti-discrimination measures to protect the forum internum 182 Differential treatment 187 ‘Reasonable’ and ‘objective’ criteria 192 Summary 198 Conclusion 198 CONTENTS vii 4 The right to manifest religious belief and applicable limitations 203 Introduction 203 Beliefs and their manifestation 203 Protected beliefs 204 Nexus between religion or belief and its manifestation 210 Determination of whether there has been an interference 222 The scope of recognised manifestations of religion or belief 235 ‘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 of a religion or belief’ 250 ‘To write, issue and disseminate relevant publications in these areas’ 259 ‘To teach a religion or belief in places suitable for these purposes’ 263 ‘To solicit and receive voluntary financial and other contributions from individuals and institutions’ 271 ‘Totrain,appoint,electordesignatebysuccession 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 Summary 290 Permissible limitations on the right to manifestation 292 Introduction 292 Prescribed by law 293 Legitimate aim 301 viii CONTENTS Necessary (in a democratic society) 305 Grounds of limitation 321 Public interest grounds of limitation 321 Public health and safety 321 Order 323 National security 325 Protection of morals 327 Fundamental rights and freedoms of others 328 Conclusion 333 5Conclusion 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 Overview 350 Annexes 352 Annex 1: Universal Declaration of Human Rights 352 Annex 2: International Covenant onCivilandPoliticalRights 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 FOREWORD This study of the United Nations and European international human rights law guaranteeing freedom of religion addresses issues of great contemporary concern. There are many places in the world where the followers of a particular religion may not lawfully worship or practise their religion in their daily lives. Apostacy and proselytism may be criminal acts, as may artistic speech that causes offence to religious feelings. Religious intolerance continues to fuel a high proportion of the 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, with Muslims being the targets of general blame. Religion is as the heart of the 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 in Refah Partisi v. Turkey, the European Court of Human Right has ruled that a state legal order that is founded on Shariah Law is not consistent with democracy in Europe, so that the banning of a political party that seeks to introduce such an order is not in breach of the guarantee of the right to freedom of association in the European Convention on Human Rights. And the return to strict Christian religious values in the United States has raised moral questions and issues of separation of Church and Stateforthecourts. This book is likely to become the place of first recourse on the international human rights law on freedom of religion that govern these and other situations and issues. It offers a comprehensive analysis and evaluation of the relevant international law standards that have evolved within the United Nations and the Council of Europe. The book is distinctive in its reliance upon both the – sometimes differing – jurisprudence and practice of the United Nations and European human rights systems. At the United Nations level, what is of great value is the ix x FOREWORD 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 of Religion or Belief. These reports are a depressingly revealing mine of information about the large extent and different forms of the ongoing violations of freedom of religion perpetrated or tolerated by States around the world. DAVID HARRIS Professor Emeritus and Co-Director of the Human Rights Law Centre, School of Law, University of Nottingham April 2005 PREFACE The escalating religious intolerance of recent years, both through State violation and by non-State entities, is most conspicuous in events following the collapse of the former Soviet Union, in religious conflict in many parts of the world and, of course, in the attacks of 11 September