Framework for communications. Display of religious symbols from an international human rights perspective

This report is submitted pursuant to resolution 2005/40 of the Commission on Human Rights. It covers the activities carried out under the mandate on freedom of religion or belief since the submission of the previous report to the Commission (E/CN.4/2005/61 and Add.1 and 2).

The Special Rapporteur on religious intolerance was initially appointed pursuant to Commission resolution 1986/20. The Commission changed the title to Special Rapporteur on freedom of religion or belief by its resolution 2000/33. In July 2004, Asma Jahangir was appointed Special Rapporteur for a period of three years.

The present report is divided into four sections. Section I presents the activities that have been undertaken under the mandate during the period under review. Section II presents a framework for communications, which the Special Rapporteur has developed as a tool to enable her to improve the effectiveness of her communications with Governments. Section III provides a more detailed analysis of one issue, namely the issue of religious symbols. Section IV sets out the Special Rapporteur’s conclusions and recommendations.

The summary of communications sent by the Special Rapporteur from 12 November 2004 to 30 November 2005 and the replies received from Governments by 30 January 2006 is found in addendum 1 to the report. Addendums 2 to 4 are the reports of the country visits to Sri Lanka, Nigeria and France, respectively. The joint preliminary report with the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Chairperson-Rapporteur of the Working Group on Arbitrary Detention concerning the human rights situation of prisoners detained at the United States of America Naval Base, Guantánamo Bay, Cuba (E/CN.4/2006/120), will be submitted separately.

The twenty-fifth anniversary of the adoption of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief will take place in 2006. Nevertheless, the Special Rapporteur notes with concern that freedom of religion or belief is not a reality for many individuals throughout the world. The high level of religious intolerance in some countries is leading to an alarming degree of polarization.

The activities of the Special Rapporteur are focused mainly on the protection of individuals, and particularly the monitoring of cases and situations of alleged violations of the right to freedom of religion or belief. This was carried out mainly in the context of acting on information provided by several sources, including individuals and non-governmental organizations (NGOs), and in situ visits.

The Special Rapporteur would like to express her gratitude to the people assisting her mandate, as the human resources available to her are very limited but exceedingly dedicated. She calls for the allocation of increased resources so that the mandate can achieve its full potential.

The amount of information received from both individuals and NGOs on situations that appear to fall within the scope of the mandate is overwhelming and deals with a wide range of complex and sensitive issues. One of the crucial activities undertaken by the Special Rapporteur in this regard is to engage in constructive dialogue with Governments by sending them communications in order to seek clarification on credible allegations received.

During the period from 12 November 2004 to 30 November 2005, a total of 84 communications were transmitted to 36 different countries. The Special Rapporteur sent communications to Armenia, Azerbaijan, Bangladesh, Belarus, Belgium, China, Denmark, Egypt, Eritrea, Greece, India, Indonesia, Iran (Islamic Republic of), Iraq, Jordan, Kazakhstan, Kuwait, Malaysia, Maldives, the Netherlands, New Zealand, Pakistan, the Republic of Korea, Romania, the Russian Federation, Saudi Arabia, Serbia and Montenegro, Sri Lanka, Thailand, Turkey, Turkmenistan, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Uzbekistan, Viet Nam and Yemen.

Of the 84 communications, 49 were sent to the Asian and Pacific region, 21 to Europe and North America, 10 to the Arab region, 4 to Africa and none to Latin America and the Caribbean. In this regard, the Special Rapporteur notes that while there is an obvious imbalance between States regarding the amount of information received, the picture does depict positive trends in some regions, which has remained consistently encouraging. The Special Rapporteur reiterates that the absence of information about a specific country does not mean that the situation with regard to freedom of religion or belief in that country is necessarily satisfactory. Indeed, the absence of information may sometimes be explained by the lack of a civil society or by obstacles that prevent the information from being transmitted outside the country.

The communications sent during the period under review were made up of 28 urgent appeals and 56 allegation letters. The Special Rapporteur is pleased that 23 of the urgent appeals and 11 of the allegation letters were sent jointly with other special procedures. The Special Rapporteur welcomes once again this important collaboration, especially in view of the fact that violations of the right to freedom of religion or belief are very often coupled with violations of other human rights. During the period under review communications were sent jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Rapporteur on violence against women, its causes and consequences, the Special Rapporteur on the independence of judges and lawyers, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, the Special Representative of the Secretary-General on human rights defenders, the Special Rapporteur on the right to education and the Special Rapporteur on the question of torture.

The following issues were raised with the Governments: freedom to adopt, change or renounce a religion or belief as well as freedom from coercion; the right to manifest one’s religion or belief; freedom to worship; places of worship; religious symbols; registration; the right to appoint clergy; and the freedom of religion or belief of detainees. The question of conscientious objection was also addressed in several communications. Moreover, the Special Rapporteur has received an important number of reports alleging discrimination on the basis of religion or belief, including inter-religious discrimination, intolerance, as well as gender discrimination. Indeed, almost a quarter of the communications sent were related to the discrimination aspect of the mandate. The Special Rapporteur has, as in the previous period, sent communications to some Governments requesting information on legislative issues.

A significant proportion of the communications were sent concerning cases in which violations of the right to freedom of religion or belief were coupled with violations of other human rights. For instance, there have been cases where freedom of expression was also violated and where the situation concerned intra-religious conflicts and/or incitement to religious hatred. There were further communications sent with regard to alleged cases of torture or ill-treatment of persons held in custody on the basis of their religion or belief, one case of death in custody, as well as recurring cases of religiously motivated forms of punishment such as stoning and flogging. As mentioned above, in cases which raised a number of human rights violations, the Special Rapporteur acted jointly with other relevant mandates.

At the time of writing, the Special Rapporteur had received 38 responses from 25 States: Armenia, Azerbaijan, Bangladesh, Belarus, Belgium, China, Greece, Indonesia, Iran (Islamic Republic of), Jordan, Kazakhstan, Kuwait, Maldives, New Zealand, Pakistan, the Republic of Korea, the Russian Federation, Serbia and Montenegro, Sri Lanka, Turkey, Turkmenistan, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Uzbekistan and Viet Nam. The Special Rapporteur expresses her appreciation to those Governments that have provided comprehensive replies to her communications. The Special Rapporteur also thanks the Governments of China, Kazakhstan, Pakistan, the Russian Federation and Serbia and Montenegro for their replies to communications mentioned in previous reports to the Commission.

There has been an improvement in the quantity, but most significantly in the substance, of responses to the Special Rapporteur’s communications. These improvements may be due, in part, to the increased efforts to tailor each communication to a given situation, as well as to ask specific questions in every communication. While the Special Rapporteur is pleased by these developments, she is constantly trying to find means of improving the mechanism. In this regard, she has elaborated a framework for responding to individual communications. The framework, the content of which is developed in section III and described in detail in the annex, is intended primarily as a tool for the Special Rapporteur, to enable her to draw the attention of the relevant Government to the international standards that are relevant to the particular nature of each alleged violation.

A summary of communications sent from 12 November 2004 to 30 November 2005 and responses received from Governments by 30 January 2006 is contained in addendum 1, which also contains the Special Rapporteur’s observations on the concerns raised.

In the period under review, three in situ visits were carried out, to Nigeria, Sri Lanka and France. The Special Rapporteur takes this opportunity to thank the Governments concerned for the cooperation they extended to the mandate. Her reports on each of these visits can be found in documents E/CN.4/2006/5/Add.2, E/CN.4/2006/5/Add.3 and E/CN.4/2006/5/Add.4, respectively.

The basic principles relating to the right to freedom of religion or belief were generally respected by the Governments concerned. Nevertheless, a number of situations, including for reasons related to religious intolerance, raised some concerns. In particular, the Special Rapporteur noted the existence of legislative measures enacted or proposed for placing limits or obligations on the practice, observance or propagation of religion. The country visits also confirmed that religion or freedom of religion is sometimes used as a pretext or a justification for violating other human rights.

The Special Rapporteur observed that one of the main challenges to human societies lies in organizing themselves along political lines without infringing on the beliefs or religious freedom of individuals and communities or focusing too heavily on religious considerations at the expense of other rights. There is a need to create better harmony between religious communities to enable them to live side by side and in mutual respect. Efforts to promote inter-religious dialogue at all levels should not only be praised, but also encouraged and actively supported by Governments. At the same time, such harmony can only be forged, and flourish, if Governments remain committed to the promotion of freedom of religion or belief in a neutral and balanced manner.

The Special Rapporteur wishes to draw attention to the crucial importance of country visits to the effective implementation of her mandate, and indeed to the mandates of all the special procedures. The cooperation that is expected from Governments in this respect is particularly vital. The Special Rapporteur recalls that in its resolution 2005/40, the Commission on Human Rights urged “all Governments to cooperate fully with the Special Rapporteur and to respond favourably to her request to visit their countries so as to enable her to fulfil her mandate more effectively”.

The Special Rapporteur draws the attention of the Commission to her report to the General Assembly (A/60/399) in which she provided detailed information on the status of requests for visits and invitations received. Moreover, she welcomes the decision of the Governments of Azerbaijan, the Islamic Republic of Iran and Israel to extend an invitation to her and is looking forward to carrying out in situ visits to these countries in 2006. She notes, however, that the Governments of Israel and Iran have still not suggested dates for a visit.

There is concern that the number of countries that do not wish to extend an invitation is increasing. This trend is particularly worrying because these are countries concerning which she has received substantial allegations or information regarding violations of the right to freedom of religion or belief. In this regard, the Special Rapporteur reiterates her support for a mechanism to appropriately address the situation of countries that consistently fail to cooperate with the special procedures mechanisms.

She is particularly concerned at the absence of invitations from the Governments of Indonesia and the Russian Federation despite numerous requests and reminders. She also notes with concern the failure of the Governments of Egypt, Eritrea, Kyrgyzstan, Turkmenistan and Uzbekistan to respond to requests for an invitation. She encourages these Governments to extend her an invitation without delay and emphasizes that a formal invitation should be followed by proposals for the dates of the visit; otherwise, the invitation, whether standing or ad hoc, tends to lose its significance.

Along with a number of other special procedures, the Special Rapporteur requested an invitation to visit the United States detention facilities at Guantánamo Bay, Cuba. Further information on this request is set out in the following section.

The Special Rapporteur is one of a group of five special procedures that requested a visit to the United States detention facilities at Guantánamo Bay, Cuba (herself plus the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Chairperson-Rapporteur of the Working Group on Arbitrary Detention).

On 27 October 2005, the Government of the United States invited three of the five to visit the detention facilities, namely the Special Rapporteur on freedom of religion, the Special Rapporteur on the question of torture and the Chairperson-Rapporteur of the Working Group. The Government limited the visit to one day and explicitly excluded private interviews or visits with detainees. On 31 October 2005, the experts accepted the short duration and the limitation on the number of mandate holders, but indicated that they could not accept the exclusion of private interviews with detainees, as that would contravene the terms of reference for fact-finding missions by special procedures and undermine the purpose of, forming an objective and fair assessment of the situation of the detainees.

On 18 November 2005, the experts informed that the Government had not accepted their conditions, and therefore the mission would not proceed. A joint preliminary report on the applicability of international human rights law to the persons held at the detention facilities in Guantánamo Bay, Cuba, as well as the human rights situation of the detainees will be submitted separately in document E/CN.4/2006/120.

The right to freedom of religion or belief, as defined by international standards, is a wide-ranging right covering a large number of distinct yet interrelated issues. This diversity is very much reflected in the information and allegations received by the Special Rapporteur. In order to enable the Special Rapporteur to respond more effectively to the information she
receives, she has developed a framework for communications. This framework sets out the different types of cases or situations that are submitted to her and are within the scope of her mandate, along with the corresponding international standards relevant to each issue. The framework can be found in the annex to this report.

The Special Rapporteur has indicated on a number of occasions that one of the main focuses of her activities is the protection aspect of the right of individuals to freedom of religion or belief. Accordingly, the use of communications to engage with Governments on allegations of violations of individual rights is vitally important. The framework enables the Special Rapporteur to determine which elements, if any, of the mandate on freedom of religion or belief are raised by each allegation and to send more specific, tailored communications. In particular, it allows her to draw the attention of the Government concerned to the particular international standards on the specific issue or issues and to ask pertinent questions about compliance.

The Special Rapporteur underlines that not all the communications she receives fall neatly into one of the different categories set out in the framework. It is necessary to take the particular facts and context of each allegation into account. Furthermore, in many cases, the allegation will disclose a number of different elements of the right to freedom of religion or belief. She emphasizes that the framework is not intended to provide an exhaustive list of issues that fall within her mandate. The mandate is constantly evolving, a fact which is evidenced by the content of successive resolutions of the Commission on Human Rights. The framework is thus very much a work in progress to be developed as the Special Rapporteur continues to implement her mandate.

The framework is included in this report to give readers a clearer understanding of the issues that are covered by the mandate on freedom of religion or belief, and as a guide to the types of issues that are the subject of communications sent and received under the mandate. In this regard, the framework could be a useful tool for NGOs and other actors in their interactions with the Special Rapporteur.

The framework has been developed on the basis of an analysis of international standards on freedom of religion or belief. In her previous report to the Commission (E/CN.4/2005/61 and Corr.1), the Special Rapporteur set out the international legal instruments that are relevant to the implementation of her mandate. The primary instruments upon which the Special Rapporteur bases her activities are article 18 of the Universal Declaration of Human Rights, article 18 of the International Covenant on Civil and Political Rights and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

Her interventions are also based on the relevant articles of the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention relating to the Status of Refugees.

She is also guided by relevant resolutions of the Commission on Human Rights and other organs of the United Nations including the General Assembly and the Economic and Social Council. She is further guided by relevant general comments and concluding observations and jurisprudence of the treaty bodies, and the relevant provisions of international humanitarian law. The Special Rapporteur also takes into account relevant human rights instruments and jurisprudence at the regional level.

The framework is divided into five different categories. The first category deals with elements of the right to freedom of religion or belief and the right to manifest one’s religion or belief. The second category covers discrimination in relation to the freedom of religion or belief. The third category deals with vulnerable groups, including women, children, refugees, members of minorities and persons deprived of their liberty. The fourth covers situations where the right to freedom of religion intersects with violations of other human rights, such as the right to freedom of expression and the prohibition on torture and other cruel, inhuman or degrading treatment or punishment. The fifth category covers cross-cutting issues including international provisions on limitations and derogations.

When dealing with the issue of religious symbols, two aspects of the question need to be taken into account. On the one hand, many individuals in various parts of the world are prevented from identifying themselves through the display of religious symbols, while on the other hand the reports and activities of the mandate have revealed the practice in some countries of requiring people to identify themselves through the display of religious symbols, including religious dress in public. The Special Rapporteur refers to the former as positive freedom of religion or belief, and to the latter as negative freedom of religion. The following paragraphs examine, from an international human rights perspective, both positive and negative freedom of religion or belief of individuals with regard to the wearing of religious symbols such as garments and ornaments. A different, albeit related, issue is the display of religious symbols in public locations such as courthouses, polling stations, classrooms, public squares, etc. Some aspects of these situations have been the subject of several national legal judgements at the highest level,1 but the question will not be covered in this section.

A comparative analysis of the factual aspects reveals a set of regulations or prohibitions on wearing religious symbols in more than 25 countries all over the world.2 Several religions are affected and religious symbols remain a subject of controversy in a number of countries. Examples of affected believers and their religious garments or ornaments include Muslims wearing headscarves, Jews wearing yarmulkes, Christians wearing crucifixes, collars and nuns’ habits, Hindus displaying a bindi, Buddhists wearing saffron robes, Sikhs wearing turbans or
kirpans as well as followers of Bhagwan (Osho) wearing reddish-coloured clothing. There are different levels of regulation or prohibition on the wearing of religious symbols including constitutional provisions, legislative acts at the national level, regulations and mandatory directives of regional or local authorities, rules in public or private organizations or institutions (e.g. school rules) and court judgements. The intensity of possible adverse effects for individuals who do not abide by the regulations or prohibitions also depends on the respective field of application. Pupils in primary and secondary schools run the risk of being expelled from the public school system, whereas teachers are in danger of reprimands, suspension and, ultimately, dismissal from their jobs. At the university level, students also run the risk of being expelled or of not being awarded their degrees unless they abide by prescriptions concerning religious symbols. University lecturers are likely not to be employed in the first place. In the work environment in general there is a risk of reprimands, suspension and dismissal directly connected to the wearing of religious symbols. This may affect both employees in private enterprises and civil servants, as well as members of Parliament and military personnel. When certain dress codes are applicable for ID photographs, e.g. on permanent resident cards, visas, passports and driving licences, individuals run the risk of not receiving the official ID or of being forced to wear the required head covering on ID photographs for deportation purposes. In public, individuals may either be prevented (positive aspect of freedom of religion or belief) or coerced to wear religious symbols that they consider not essential to their convictions (negative freedom of religion or belief).

The obligation to wear religious dress in public in certain countries was particularly criticized by Special Rapporteur Amor, who stated that “women are among those who suffer most because of severe restrictions on their education and employment, and the obligation to wear what is described as Islamic dress” (E/CN.4/1998/6, para. 60). There were reports of punishment by whipping and/or a fine (A/51/542/Add.2, para. 51) and a growing number of women being attacked in the streets (E/CN.4/2003/66/Add.1, para. 59), or even killed after being threatened for failing to wear religious symbols (E/CN.4/1995/91, p. 36). After in situ visits, Special Rapporteur Amor addressed possible solutions by urging that dress should not be the subject of political regulation and by calling for flexible and tolerant attitudes in this regard. At the same time he emphasized that traditions and customs were worthy of respect (E/CN.4/1996/95/Add.2, para. 97 and A/51/542/Add.2, para. 140). In his thematic studies he also referred to the different possible meanings of religious symbols (E/CN.4/2002/73/Add.2, paras. 101-102) and in particular to the situation of pupils in the public school system (A/CONF.189/PC.2/22, paras. 56-59).

Furthermore, in resolution 1464 (2005) on “Women and religion in Europe”, the Parliamentary Assembly of the Council of Europe has recently called on its member States to “ensure that freedom of religion and respect for culture and tradition are not accepted as pretexts to justify violations of women’s rights, including when underage girls are forced to submit to religious codes (including dress codes)”.3

As mentioned in the Special Rapporteur’s previous annual report (E/CN.4/2005/61, para. 65), most international judicial or quasi-judicial bodies consider the display of religious
symbols as a manifestation of religion or belief (forum externum) rather than being part of internal conviction (forum internum), which is not subject to limitation. Several universal and regional human rights instruments refer to the freedom “to manifest his religion or belief in worship, observance, practice and teaching”4 (emphasis added). The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief more specifically enumerates the freedom to “make, acquire and use to an adequate extent the necessary articles and materials related to rites or customs of a religion or belief”.5 According to the Human Rights Committee’s general comment No. 22 on article 18 of the Covenant, “[t]he observance and practice of religion or belief may include not only ceremonial acts but also such customs as … the wearing of distinctive clothing or head coverings” (para. 4).

It is not clear whether the wearing of religious symbols falls under the category of “practice” or “observance”. In listing the features that required protection, the Committee does not seem to distinguish clearly between these two categories. However, some commentators have suggested that observance refers to “prescriptions that are inevitably connected with a religion or belief and protects both the right to perform certain acts and the right to refrain from doing certain things”, whereas practice concerns manifestations which are “not prescribed, but only authorized by a religion or belief”.6 Such a distinction between compulsory prescriptions and mere authorizations may ultimately lead to problems when trying to determine who should be competent to consider this aspect of the individual’s freedom of religion or belief. During the elaboration of general comment No. 22, Human Rights Committee member Rosalind Higgins stated that “… it was not the Committee’s responsibility to decide what should constitute a manifestation of religion”. She resolutely opposed the idea that “States could have complete latitude to decide what was and what was not a genuine religious belief. The contents of a religion should be defined by the worshippers themselves”.7 A certain appearance or exhibition of a symbol may or may not be linked to any religious sentiment or belief. It would therefore be most inappropriate for the State to determine whether the symbol in question was indeed a manifestation of religious belief. The Special Rapporteur therefore shares the approach of the Human Rights Committee in dealing with the wearing of religious symbols under the headings of “practice and observance” together.

The controversy under international human rights law tends to centre on possible limitations on the freedom to manifest one’s religion or belief, e.g. according to article 29 (2) of the Universal Declaration on Human Rights, article 18 (3) of the International Covenant on Civil and Political Rights, article 1 (3) of the Declaration, article 9 (2) of the European Convention on Human Rights (ECHR) and article 12 (3) of the American Convention on Human Rights (AmCHR). Generally speaking, these clauses only accept such limitations as are prescribed or determined by law and are necessary - in a democratic society - to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The list of permissible reasons for intervention notably does not include additional grounds stipulated for different human rights, e.g. national security or the reputations of others. Furthermore, article 4 (2) of the Covenant and article 27 (2) of AmCHR prescribe that, even in time of public emergency or war, no derogation from the freedom of conscience and religion is permissible. That this right is non-derogable again underlines the importance of the freedom of religion or belief.

When discussing the wording of its general comment No. 22, the Human Rights Committee also took account of the “need to avoid rivalry or provocation”8 with regard to the wearing of clothing in accordance with religious practice. The following cases illustrate typical contentious situations and the respective findings of the relevant international judicial or quasi-judicial body. Two cases before the Human Rights Committee as well as concluding observations of the Committee on the Rights of the Child appear to be pertinent to the issue of religious symbols. Furthermore, there are a number of precedents, including the most recent Grand Chamber decision of 10 November 2005, in the case law of the European Court of Human Rights and of the European Commission on Human Rights.

Communication No. 931/2000, Hudoyberganova v. Uzbekistan, concerned a female Muslim student of the Tashkent State Institute for Eastern Languages who allegedly had been suspended for wearing a headscarf. On 5 November 2004, the majority of the Human Rights Committee concluded, in the absence of any justification provided by the State party, that there had been a violation of article 18, paragraph 2, of the Covenant. It also confirmed that “the freedom to manifest one’s religion encompasses the right to wear clothes or attire in public which is in conformity with the individual’s faith or religion. Furthermore, it considers that to prevent a person from wearing religious clothing in public or private may constitute a violation of article 18, paragraph 2, which prohibits any coercion that would impair the individual’s freedom to have or adopt a religion.”9 Three Committee members, however, decided to append individual opinions, referring to the uncertain state of the record and to more complex causes for Ms. Hudoyberganova’s exclusion from the institute, based on her own statements.

In communication No. 208/1986, Bhinder v. Canada, the Human Rights Committee held on 9 November 1989 that the requirement for Sikhs to wear safety headgear during work was justified under article 18 (3) of the Covenant, without further specifying which of the grounds for limitation it thought to be in question. In addition, the Committee did not find de facto discrimination against persons of the Sikh religion violating article 26 of the Covenant because the legislation was to be “regarded as reasonable and directed towards objective purposes that are compatible with the Covenant”.10

The Committee on the Rights of the Child in its concluding observations on the second periodic report of France was concerned at the alleged rise in discrimination, including that based on religion, and that the new legislation on wearing religious symbols and clothing in public schools may neglect the principle of the best interests of the child and the right of the child to access to education. It recommended that the State party “consider alternative means, including mediation, of ensuring the secular character of public schools, while guaranteeing that individual rights are not infringed upon and that children are not excluded or marginalized from the school system and other settings as a result of such legislation. The dress code of schools may be better addressed within the public schools themselves, encouraging participation of children”. The Committee further recommended that “the State party continue to closely monitor the situation of girls being expelled from schools as a result of the new legislation and ensure that they enjoy the right of access to education.”11

At the regional level, the European Court of Human Rights and, previously, the European Commission on Human Rights appear to be more inclined to allow States to limit individuals’ positive freedom of religion or belief. The Court case Şahin v. Turkey concerned the refusal of admission to lectures and examinations at Istanbul University for students whose heads were covered. Both the Court Chamber and the recent Grand Chamber judgements held the notion of secularism to be consistent with the values underpinning the European Convention on Human Rights. With regard to article 9 of ECHR, “the Court considered that, when examining the question of the Islamic headscarf in the Turkish context, there had to be borne in mind the impact which wearing such a symbol, which was presented or perceived as a compulsory religious duty, may have on those who chose not to wear it”.12 In her dissenting opinion, however, Judge Tulkens disagreed with the manner in which the principles of secularism and equality were applied by the majority of the Grand Chamber. She underlined that not mere worries, but only “indisputable facts and reasons whose legitimacy is beyond doubt” were capable of justifying interference with a right guaranteed by the Convention.

In the case Dahlab v. Switzerland, the application of a teacher in a primary school who had been prohibited from wearing a headscarf in the performance of her professional duties was dismissed by the European Court of Human Rights at the admissibility stage. The Court held that a teacher, wearing a “powerful external symbol” such as the headscarf might have some kind of proselytizing effect on young children, who were in this case aged between 4 and 8 years. Thus, the Court concurred with the view of the Swiss Federal Court that the prohibition of wearing a headscarf in the context of the applicant’s activities as a teacher was “justified by the potential interference with the religious beliefs of her pupils, other pupils at the school and the pupils’ parents, and by the breach of the principle of denominational neutrality in schools”.13

The protection of the beliefs of others and of public order was also stressed in the case Refah Partisi (the Welfare Party) and Others v. Turkey, where the Grand Chamber of the European Court stated that “measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under article 9 [paragraph] 2 of the Convention”.14

The European Commission on Human Rights also dealt with two applications, Karaduman v. Turkey (No. 16278/90) and Bulut v. Turkey (No. 18783/91), concerning the university’s refusal to issue a diploma because the photographs that the applicants had submitted for their identity documents portrayed them with their heads covered. In its decisions of 3 May 1993, the Commission did not regard the rejection to be an interference with the applicants’ freedom of religion or belief as secular universities may regulate manifestation of religious rites and symbols with the aim of ensuring harmonious coexistence between students of various faiths and thus protecting public order and the beliefs of others.

In general, contentious situations should be evaluated on a case-by-case basis, e.g. by weighing the right of a teacher to manifest his or her religion against the need to protect pupils
by preserving religious harmony according to the circumstances of a given case. However, developing a set of general criteria to balance competing human rights seems to be desirable in order to give some guidance in terms of the applicable international human rights standards and their scope. In a manner similar to the guideline developed in 2004 by the Office for Democratic Institutions and Human Rights (ODIHR) of the OSCE,15 the aim of these general criteria is to assist national and international bodies in their analyses and reviews of laws and draft legislation pertaining to the freedom of religion or belief. The Special Rapporteur invites Governments that intend to regulate the wearing of religious symbols to consider seeking advisory services from the Office of the High Commissioner for Human Rights.

When developing such a set of general criteria, the competing human rights and public interests put forward in national and international forums need to be borne in mind. Freedom of religion or belief may be invoked both in terms of the positive freedom of persons who wish to wear or display a religious symbol and in terms of the negative freedom of persons who do not want to be confronted with or coerced into it. Another competing human right may be the equal right of men and women to the enjoyment of all civil and political rights, as well as the principle of the right to be protected from discrimination of any kind, including on the basis of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status. The right of everyone to education may be invoked by pupils who have been expelled for wearing religious symbols in accordance with their religion or belief. Furthermore, the rights of parents or legal guardians to organize life within the family in accordance with their religion or belief and bearing in mind the moral education which they believe should inform the child’s upbringing (see article 5 (1) of the Declaration) may also be at stake. On the other hand, the State may try to invoke the “denominational neutrality of the school system” and the desire to “[preserve] religious harmony in schools” (see the Swiss Federal Court in the Dahlab case). According to the individual opinion by Human Rights Committee member Ruth Wedgwood in the Hudoyberganova case “a State may be allowed to restrict forms of dress that directly interfere with effective pedagogy”.16 Furthermore, the recent European Court Grand Chamber judgement in the Şahin case referred to the need to “preserve public order and to secure civil peace and true religious pluralism, which is vital to the survival of a democratic society”.

However, any limitation must be based on the grounds of public safety, order, health, or morals, or the fundamental rights and freedoms of others, it must respond to a pressing public or social need, it must pursue a legitimate aim and it must be proportionate to that aim.17 Furthermore, the burden of justifying a limitation upon the freedom to manifest one’s religion or belief lies with the State. Consequently, a prohibition of wearing religious symbols which is based on mere speculation or presumption rather than on demonstrable facts is regarded as a violation of the individual’s religious freedom.18

With regard to the scope of permissible limitation clauses, the Human Rights Committee’s general comment No. 22 emphasizes that article 18 (3) of the Covenant “is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and
must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner (para. 8)”.

On the basis of the above-mentioned factual aspects, the legal framework and international case law, the Special Rapporteur has endeavoured to develop a set of general criteria in order to evaluate - from a human rights law perspective - restrictions and prohibitions on wearing religious symbols. The following “aggravating indicators” show legislative and administrative actions which typically are incompatible with international human rights law whereas the subsequent “neutral indicators” by themselves do not tend to contravene these standards:
(a) Aggravating indicators:
The limitation amounts to the nullification of the individual’s freedom to manifest his or her religion or belief;
The restriction is intended to or leads to either overt discrimination or camouflaged differentiation depending on the religion or belief involved;
Limitations on the freedom to manifest a religion or belief for the purpose of protecting morals are based on principles deriving exclusively from a single tradition;19
Exceptions to the prohibition of wearing religious symbols are, either expressly or tacitly, tailored to the predominant or incumbent religion or belief;
In practice, State agencies apply an imposed restriction in a discriminatory manner or with a discriminatory purpose, e.g. by arbitrarily targeting certain communities or groups, such as women;
No due account is taken of specific features of religions or beliefs, e.g. a religion which prescribes wearing religious dress seems to be more deeply affected by a wholesale ban than a different religion or belief which places no particular emphasis on this issue;
Use of coercive methods and sanctions applied to individuals who do not wish to wear a religious dress or a specific symbol seen as sanctioned by religion. This would include legal provisions or State policies allowing individuals, including parents, to use undue pressure, threats or violence to abide by such rules;
(b) Neutral indicators:
The language of the restriction or prohibition clause is worded in a neutral and all-embracing way;
The application of the ban does not reveal inconsistencies or biases vis-à-vis certain religious or other minorities or vulnerable groups;
As photographs on ID cards require by definition that the wearer might properly be identified, proportionate restrictions on permitted headgear for ID photographs appear to be legitimate, if reasonable accommodation of the individual’s religious manifestation are foreseen by the State;
The interference is crucial to protect the rights of women, religious minorities or vulnerable groups;
Accommodating different situations according to the perceived vulnerability of the persons involved might in certain situations also be considered legitimate, e.g. in order to protect underage schoolchildren and the liberty of parents or legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

In seeking to accommodate different categories of individuals details of permissible limitations will be controversial. In general schoolchildren are generally considered vulnerable in view of their age, immaturity and the compulsory nature of education. In addition, parental rights are also put forward as justification for limiting teachers’ positive freedom to manifest their religion or belief. In all actions concerning children, the best interests of the child shall be the primary consideration. University students, however, have normally reached the age of majority and are generally considered to be less easily influenced than schoolchildren, and parental rights are usually no longer involved.

The above-mentioned controversy over the peculiarities of certain institutional settings was already alluded to in 1959 by Arcot Krishnaswami, then Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his seminal study of discrimination in the matter of religious rights and practices: “A prohibition of the wearing of religious apparel in certain institutions, such as public schools, may be motivated by the desire to preserve the non-denominational character of these institutions. It would therefore be difficult to formulate a rule of general application as to the right to wear religious apparel, even though it is desirable that persons whose faith prescribes such apparel should not be unreasonably prevented from wearing it.”20

Where a policy decision has been taken at the national level to interfere with the freedom to manifest one’s religion or belief with regard to wearing religious symbols issues of commensurability need to be thoroughly respected both by the administration and during possible legal review. For this purpose, the following questions should be answered in the affirmative:
Was the interference, which must be capable of protecting the legitimate interest that has been put at risk, appropriate?
Is the chosen measure the least restrictive of the right or freedom concerned?
Was the measure proportionate, i.e. balancing of the competing interests?
Would the chosen measure be likely to promote religious tolerance?
Does the outcome of the measure avoid stigmatizing any particular religious community?

When dealing with the prohibition of religious symbols, two general questions should always be borne in mind: What is the significance of wearing a religious symbol and its relationship with competing public interests, and especially with the principles of secularism and equality? Who is to decide ultimately on these issues, e.g. should it be up to the individuals themselves, religious authorities, the national administration and courts, or international human rights mechanisms? While acknowledging that the doctrine of “margin of appreciation” may accommodate ethnic, cultural or religious peculiarities, this approach should not lead to questioning the international consensus that “[a]ll human rights are universal, indivisible and interdependent and interrelated”, as proclaimed in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993.

The fundamental objective should be to safeguard both the positive freedom of religion or belief as manifested in observance and practice by voluntarily wearing or displaying religious symbols, and also the negative freedom from being forced to wear or display religious symbols. At the same time, the competing human rights need to be balanced and public interest limitations should be applied restrictively. The Special Rapporteur fully agrees with European Court Judge Tulkens’ closing remarks: “Above all, the message that needs to be repeated over and over again is that the best means of preventing and combating fanaticism and extremism is to uphold human rights.”21
IV. CONCLUSIONS AND RECOMMENDATIONS

The twenty-fifth anniversary of the adoption of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief will take place in 2006. Nevertheless, the Special Rapporteur notes with concern that freedom of religion or belief is not a reality for many individuals throughout the world. She hopes that this anniversary will be an occasion to reiterate the importance of promoting freedom of religion or belief and to draw attention to the evolution of the issues relating to the mandate. She encourages Governments and non-governmental organizations to support the initiatives that will be taken to organize events that will take stock of achievements since 1981, identify the provisions of the Declaration that today raise particular concern and challenge rising trends of religious intolerance.

While she notes that religious leaders regularly organize high-level meetings at the international level to promote inter-religious dialogue, she is concerned that Governments, which are primarily responsible for protecting people against violations of the right to
freedom of religion or belief, rarely organize intergovernmental events to discuss the rise of religious intolerance, in particular at the regional level. The Special Rapporteur encourages more intergovernmental dialogue on the issues relating to her mandate, so as to increase the involvement of the relevant policymakers.

The Special Rapporteur expresses her gratitude to the Governments of Sri Lanka, Nigeria and France for their cooperation during her visits during the period under review. She considers that this cooperation will eventually prove beneficial to those States because all States have an interest in improving religious tolerance and religious freedom. She therefore encourages all States to respond favourably to her requests for country visits so as to enable her to fulfil her mandate more effectively.

However, there is a real concern that the number of countries that do not extend invitations for in situ visits is increasing. This trend is particularly worrying because these are the countries concerning which she has received substantial allegations regarding violations of the right to freedom of religion or belief. In this regard, the Special Rapporteur reiterates her support for a mechanism to appropriately address the situation of countries that consistently fail to cooperate with the special procedures mechanisms. She encourages States and other actors to consider this issue in the context of the efforts relating to United Nations reform. In particular, they should consider, barring those States that do not cooperate with the special procedures in the context of country visits, from consideration for membership in the new body.

The Special Rapporteur welcomes the responses received from Governments to the communications sent during the period under review. She reiterates the importance of initiating a dialogue with Governments on allegations of violations of the freedom of religion or belief in their countries. Accordingly, she has taken steps to improve the specificity and quality of the communications she sends to Governments by developing a framework on communications. She hopes that Governments will reciprocate by increasing their efforts to respond to her communications fully and in a timely manner, responding to the specific questions raised.

The Special Rapporteur has formulated a set of general criteria on religious symbols, including “neutral indicators” and “aggravating indicators”, in order to provide some guidance on the applicable human rights standards and their scope. She would like to emphasize that restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. Limitations must be directly related and proportionate to the specific need on which they are predicated. The burden of justifying a limitation upon the freedom to manifest one’s religion or belief lies with the State. The chosen measures should promote religious tolerance and avoid stigmatizing any particular religious community. Furthermore, the principles of appropriateness and proportionality need to be thoroughly respected both by the administration and during possible legal review.

During the period under review, the Special Rapporteur continued to receive reports of cases or situations where persons had deliberately offended the religions of
others. She recognizes that in many of these cases, the statements or other forms of expression may have been made as a result of the exercise of the right to freedom of expression. However, she is concerned that in some cases, such forms of expression may disclose a lack of tolerance for the religion of others, which can constitute a threat to the religious harmony of a society as they are often based on stereotypes and may provoke further polarization. She intends to further develop this aspect of her mandate in her forthcoming activities.

Finally, noting the undisputed advantages that special procedures bring to the United Nations human rights mechanism owing to their particularities, as well as the new challenges and ever-increasing demands that they face, the Special Rapporteur strongly encourages that additional resources be allocated to the Special Procedures Branch of the Office of the High Commissioner for Human Rights. In this regard, she notes that the evolving scope of cases and situations falling within her area of responsibility calls for strengthening the resources available to the mandate, including in terms of staffing.