United Nations
0 General Assembly Distr.: General
22 July 2008
Original: English
Sixty-third session
Item 67 (b) of the provisional agenda*
Promotion and protection of human rights: human rights
questions, including alternative approaches for improving the
effective enjoyment of human rights and fundamental freedoms
Elimination of all forms of religious intolerance
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the
General Assembly the interim report of the Special Rapporteur on freedom of
religion or belief, Asma Jahangir, submitted in accordance with General Assembly
resolution 62/157.
* A1631150.
08-43442 ) 180808
IID II I ID I II DD I ID I I I DI II
A163/1 61
Interim report of the Special Rapporteur on freedom of
religion or belief
Summary
The Special Rapporteur on freedom of religion or belief submits the present
report to the General Assembly pursuant to its resolution 62/157. In the report, she
gives an overview of the activities carried out under the mandate since the
submission of her previous report to the Assembly (A/62/280 and Corr. 1), including
her recent visits to Angola, India, Israel and the Occupied Palestinian Territory.
The Special Rapporteur addresses citizenship issues and religious
discrimination in administrative procedures, a cross-cutting substantive topic of her
mandate. After providing an overview of the pertinent State practice and domestic
legislation, she examines the applicable international legal standards and case law.
She notes that while most States do not openly discriminate on the basis of religion
with respect to citizenship issues and in administrative procedures, there are
instances where State practice or domestic legislation is inconsistent with human
rights standards. In particular, she is concerned about the denial or deprivation of
citizenship based on a person's religious affiliation; compulsory mentioning of
selected religions on official identity cards or passports; requirements to denounce a
particular faith when applying for official documents; and restricted eligibility for
State functions for persons of certain faiths.
The Special Rapporteur presents conclusions and recommendations with regard
to citizenship issues and administrative procedures in the context of her mandate.
She emphasizes that the legitimate interests of the State have to be balanced on a
case-by-case basis with the individual's freedom of religion or belief, also taking into
account his or her right to privacy, liberty of movement, right to nationality and the
principle of non-discrimination. She highlights some aspects that may help to
determine whether certain restrictions on the right to freedom of religion or belief in
the context of citizenship issues and administrative procedures are in contravention
of human rights law.
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Contents
I. Introduction .
II. Activities of the mandate
A. Communications
B. Country visits
C. Other activities
III. Citizenship issues and religious discrimination in
A. State practice and domestic legislation
B. International legal standards
C. International and regional case law
IV. Conclusions and recommendations
A163/161
administrative
procedures . .
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I. Introduction
1. The mandate of the Special Rapporteur on freedom of religion or belief was
created by the Commission on Human Rights in its resolution 1986/20.1 In its
resolution 6/37,2 the Human Rights Council extended the mandate of the Special
Rapporteur for a further period of three years and invited the Special Rapporteur:
(a) To promote the adoption of measures at the national, regional and
international levels to ensure the promotion and protection of the right to freedom of
religion or belief;
(b) To identify existing and emerging obstacles to the enjoyment of the right
to freedom of religion or belief and present recommendations on ways and means to
overcome such obstacles;
(c) To continue her/his efforts to examine incidents and governmental
actions that are incompatible with the provisions of the Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief and to recommend remedial measures as appropriate;
(d) To continue to apply a gender perspective, inter alia, through the
identification of gender-specific abuses, in the reporting process, including in
information collection and recommendations.
2. In the present report, the Special Rapporteur gives an overview of the
activities that have been carried out under the mandate since her previous report to
the General Assembly (A/62/280 and Corr. 1), discusses citizenship issues and
religious discrimination in administrative procedures as a cross-cutting substantive
topic of her mandate and sets out a number of conclusions and recommendations in
this regard.
IL Activities of the mandate
3. In line with Human Rights Council resolution 6/37, the Special Rapporteur
undertakes multiple activities, focusing on monitoring, communication, protection,
prevention and analysis, so that pertinent recommendations can be made for the
consideration of the Council and other United Nations bodies. The Special
Rapporteur receives a vast amount of information concerning her mandate. She
communicates reliable information emanating from credible sources to the
Government of the concerned State. Country visits are undertaken for a variety of
reasons, including in search of solutions to the complex issues of freedom of
religion or belief During field visits and other activities related to the mandate, the
Special Rapporteur seeks to engage in a dialogue with Governments in the light of
the observations, conclusions and recommendations she presents in the course of her
work. She shares her analysis with the Government concerned and documents this in
her reports. As part of her preventive efforts, the Special Rapporteur has been
involved in various forms of inter-religious dialogue and in brainstorming on issues
arising out of her mandate. She remained abreast of efforts to develop educational
1 See OfficialRecords of the Economic and Social Council, 1986, Supplement No.2 (E11986122),
chap. II, sect. A.
2 See A1HRC16122, chap. I.
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approaches that promote tolerance towards individuals and groups of diverse
religions and beliefs. The mandate also involves an early-warning function in order
to identify emerging obstacles to the enjoyment of the right to freedom of religion or
belief.
A. Conununications
4. Since the beginning of the mandate in 1986, the Special Rapporteur has sent a
total of 1,130 communications to 130 countries. The majority of communications
have been sent as letters of allegation to the permanent mission of the State
concerned. The Special Rapporteur resorts to urgent appeals in cases where the
alleged violations are time sensitive in terms of potential loss of life, life-
threatening situations, or either imminent or ongoing damage of a very grave nature
to victims that cannot be addressed in a timely manner by a letter of allegation.
5. The individual cases transmitted to Governments and replies received are
summarized in annual reports to the Council (see A/HRC/7/10/Add.1). These reports
use the framework for communications (E/CN.4/2006/5, annex) which enables the
Special Rapporteur to determine which elements of the mandate, if any, are raised
by the allegations received. She has also developed this framework for
communications into an online digest, which illustrates the international standards
according to the various categories with pertinent excerpts of the mandate-holders'
findings since 1986. The online digest is available on the website of the Office of
the United Nations High Commissioner for Human Rights (OHCHR)
(www.ohchr.org).
6. The communications give only a general picture. The Special Rapporteur
receives many more allegations than are finally transmitted to Governments. There
may be still further allegations that have not been brought to the attention of the
Special Rapporteur. Consequently, the “communications report” is only an
indication of the forms of violation of freedom of religion or belief In the past, the
Special Rapporteur has received reports that people had been murdered, arrested or
discriminated against on the basis of their religion or belief Certain groups tend to
be particularly vulnerable with regard to their freedom of religion or belief;
consequently, the Special Rapporteur has paid specific attention to the situation of
women, minorities, persons deprived of their liberty, refugees, children and migrant
workers.
7. Since many cases raise concern with regard to a number of human rights
violations, the Special Rapporteur again acted jointly with other special procedures
mandate holders. Since 1 July 2007, joint letters of allegation or joint urgent appeals
have been sent 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 contemporary forms of racism, racial discrimination,
xenophobia and related intolerance; the independent expert on minority issues; the
Special Rapporteur on the independence of judges and lawyers; the Working Group
on Arbitrary Detention; the Special Representative of the Secretary-General on the
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situation of human rights defenders; the Special Rapporteur on the question of
torture; and the Special Rapporteur on the situation of human rights in Myanmar.
B. Country visits
8. In the past 14 years, the mandate holders have conducted 27 visits to analyse
the situation of 26 countries on all continents. Since her previous report, she has
visited Angola (in November 2007), Israel and the Occupied Palestinian Territory
(in January 2008) and India (in March 2008). The visit to India was the first follow-
up visit of the mandate, since her predecessor conducted a mission to India in 1996.
The Special Rapporteur would like to emphasize that during her missions, she
experienced a very satisfactory level of cooperation from the Governments
concerned and there was always a genuine dialogue aimed at strengthening the
States' capacity to comply with their human rights obligations.
1. Visit to Angola
9. The Special Rapporteur visited Angola from 20 to 27 November 2007. While
the right to freedom of religion or belief is enshrined in the 1992 Constitution, the
Special Rapporteur noted concerns regarding Law No. 2/04 on freedom of religion,
conscience and worship, which contains stringent requirements for registration, for
example membership of 100,000 persons who are domiciled in Angola, from two
thirds of the total of the Angolan provinces. This law discriminates against religious
minorities and is not in conformity with the international standards to which Angola
is a party. The Special Rapporteur recommended that the law should be reformed
and was encouraged by the openness of the Government towards reviewing the
provisions of the law.
10. The Special Rapporteur regretted that Angola was also affected by a dominant
global trend of associating Muslims with international terrorism. She emphasized
the Government's obligation to promote tolerance and to prevent any official from
making statements to the detriment of any religious community. With regard to one
detention centre that she visited, she expressed regret that, although 95 per cent of
the 165 detainees were Muslims, they had no access to an imam or religious books.
11. Concerning the situation in Cabinda, the Special Rapporteur received a
significant number of reports of violence, intimidation and harassment and arrests
by State agents of individuals perceived to dispute the appointment of the Catholic
bishop of Cabinda. She was also concerned at the violence and threats against the
leadership of the Angolan Catholic Church, and urged that intra-religious dialogue
between the opposing factions be facilitated.
12. The Special Rapporteur also expressed concern at the abuse and violence
against children who were accused by their families of witchcraft. She was
encouraged by the leadership assumed by the National Children's Institute, together
with UNICEF, to address this problem; however, the response to the various
problems has been isolated and fragmented. Finally, the Special Rapporteur
recommended that the Government of Angola sign a memorandum of understanding
with OHCHR with a view to establishing an office with a full mandate to promote
and protect all human rights. She regrets that, in March 2008, the Government
decided not to sign a comprehensive agreement for human rights promotion and
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protection activities in Angola and that it requested OHCHR to cease all activities
and close its representation in the country by 31 May 2008.
2. Visit to Israel and the Occupied Palestinian Territory
13. The Special Rapporteur carried out a mission to Israel and the Occupied
Palestinian Territory from 20 to 27 January 2008. While recalling that the land she
visited was blessed with a rich diversity and important sites holy to many religions,
the Special Rapporteur regretted that this very diversity had polarized people along
religious lines; indeed, the conflict was having an adverse impact on the right of
individuals and communities to worship freely and to attend religious services at
their respective holy places. Many Muslims and Christians were impeded from
worshipping at some of their most holy places in the world because of an elaborate
system of permits, visas and checkpoints and by the barrier. The Government of
Israel informed the Special Rapporteur that those restrictions were necessary for
security reasons. She would nevertheless like to emphasize that any measure taken
to combat terrorism must comply with the State's obligations under international
law, including freedom of religion or belief, and that they should be
non-discriminatory and proportionate to their aim.
14. While acknowledging that members of religious minorities in Israel asserted
that there was no religious persecution by the State, the Special Rapporteur noted
that groups within the Christian, Jewish and Muslim faiths had experienced different
forms of discrimination, such as the neglect of Christian and Muslim holy sites or
the unfair allocation of subsidies at the expense of religious minorities and groups.
15. Minority communities in the Occupied Palestinian Territory, including some
small Christian groups, expressed their fear of a rising level of religious intolerance.
Women seemed to bear the brunt of religious zeal. The Special Rapporteur was
informed about cases of honour killings carried out with impunity in the Occupied
Palestinian Territory in the name of religion, and some women in Gaza reportedly
recently felt coerced into covering their heads not out of religious conviction but out
of fear.
16. A major challenge that needs to be addressed immediately in order to avoid
deterioration of the situation is to effectively prohibit and sanction incitement to
religious hatred. Any violence committed in the name of religion should be
denounced, investigated and sanctioned. It is particularly worrying when children
are being incited to express hatred towards those with a different religious
affiliation. Furthermore, the Special Rapporteur recommended that all parties to a
possible peace agreement bind themselves legally to protect the rights of religious
minorities and include guarantees for equality and non-discrimination based on
religion as well as for the preservation of and peaceful access to holy sites.
3. Visit to India
17. The Special Rapporteur visited India from 3 to 20 March 2008 as a follow-up
to her predecessor's mission (see E/CN.4/1997/91/Add.1). She commended the
central Government for its comprehensive policy pertaining to minorities, including
religious ones, and she welcomed the recent reports drafted by the committees
headed by Justice Rajender Sachar and Justice Renganath Misra. She also
commended the National Commission for Minorities for taking prompt action and
issuing independent reports on incidents of communal violence, with concrete
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recommendations. However, she regretted that the performance of various state
human rights commissions was uneven, as it depended very much on their
composition and the importance the different Governments attached to their
mandates.
18. The Special Rapporteur stressed that, even though India had a comprehensive
legal framework to protect minority and religious rights, its implementation was
proving difficult. She deplored the fact that law enforcement officials were often
reluctant to take any action against organized groups that perpetrated violence in the
name of religion or belief
19. During her visit, she received numerous reports of attacks on religious
minorities and their places of worship as well as of discrimination against
disempowered sections of the Hindu community. In Uttar Pradesh, the Special
Rapporteur received concrete reports of violence and rape as a reaction to
intermarriages between members of different religions or castes. She also reported
widespread violence in the Kandhamal district of Orissa, targeting primarily
Christians in dalit and tribal communities. In Gujarat, more than 1,000 people were
massacred in 2002 and there are credible reports of inaction by the authorities and
alleged complicity by the state Government in those attacks. The Special Rapporteur
also deplored the increasing ghettoization and isolation of Muslims in many areas of
the country and expressed concern at the extended time frame of investigations in
cases involving past communal riots, violence and massacres.
20. She recalled that in her predecessor's report (ibid., para. 46), he expressed the
fear that something in the nature of the 1992 Ayodhya incident would recur in the
event of political exploitation of a situation. She emphasized that there is today a
real risk that similar communal violence might happen again unless incitement to
religious hatred and political exploitation of communal tensions are effectively
prevented. Other issues of concern to the Special Rapporteur's mandate include the
legal link between scheduled caste status and religious affiliation, the impact of
“anti-conversion laws” in several states, as well as the concerns voiced by Sikhs,
Buddhists, Jams and atheists.
C. Other activities
21. The Special Rapporteur issued press releases jointly with other special
procedures mandate holders, expressing their concern at recent events and at the
human rights situation in Myanmar (28 September 2007), Kenya (4 January 2008)
and the Tibet Autonomous Region of China (10 April 2008). In another joint
statement with the Special Rapporteur on contemporary forms of racism, racial
discrimination, xenophobia and related intolerance and the Special Rapporteur for
the promotion and protection of the right to freedom of opinion and expression, she
condemned the distorted vision of Muslims in the online film “Fitna” and called for
dialogue and vigilance (28 March 2008).
22. Furthermore, the Special Rapporteur participated in the fifteenth annual
meeting of special procedures mandate holders and in several conferences or
meetings pertinent to her mandate. For example, the Special Rapporteur addressed
Some sources estimate that more than 2,000 people were killed during the communal violence in
Qujarat in 2002.
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the plenary of the European Parliament in Strasbourg, France, in the framework of
the European Year of Intercultural Dialogue 2008. She encourages inter-religious
and intra-religious dialogue in various forms and on different levels. In order to
advance a culture of peace through dialogue and cooperation between individuals
and communities of diverse religions and beliefs, the Special Rapporteur also
supports the proposal for a United Nations decade of inter-religious dialogue and
cooperation for peace.
23. With regard to prevention activities, the Special Rapporteur has been involved
in efforts by the Advisory Council of Experts on Freedom of Religion or Belief of
the Office for Democratic Institutions and Human Rights to develop the Toledo
Guiding Principles on Teaching About Religions and Beliefs in Public Schools. 4
This document is designed to offer practical guidance for preparing curricula for
teaching about religions and beliefs, preferred procedures for assuring fairness in
the development of curricula and standards for their implementation. The Special
Rapporteur would like to reiterate that education can play an important preventive
role, especially when it fosters respect for and acceptance of pluralism and diversity.
Since the quality of education and learning materials is crucial, States should take
appropriate measures to bring their school curricula, textbooks and teaching
methods into line with human rights provisions, including freedom of religion or
belief. Her predecessor had initiated the 2001 International Consultative Conference
on School Education in Relation to Freedom of Religion or Belief, Tolerance and
Non-discrimination, at which the Madrid Final Document was adopted
(E/CN.4/2002/73, appendix).
24. The Special Rapporteur welcomes the start of the universal periodic review,
which will examine the human rights records of all States Members of the United
Nations through a common mechanism every four years. She notes with
appreciation that, for the first two sessions in April and May 2008, many of the
Special Rapporteur's observations and recommendations were included by OHCHR
in the reports compiling information contained in United Nations documents. Issues
of freedom of religion or belief also featured in several interactive dialogues and
reports of the Working Group on the Universal Periodic Review. This provides a
good opportunity to follow up, inter alia, on communications and country visits of
the Special Rapporteur. She therefore also intends to re-establish the mandate's
initial approach (see A/S 1/542, annexes I and II; A/52/477/Add. 1; A/53/279, annex;
and E/CN.4/1999/58, annex) to send follow-up letters after country visits in order to
receive updated information about the implementation of the Special Rapporteur's
recommendations at the national level.
I lL Citizenship issues and religious discrimination in
administrative procedures
25. In various communications and reports, the Special Rapporteur has expressed
concern with regard to citizenship issues and religious discrimination in
administrative procedures. In this section, she gives an overview of State practice
and domestic legislation concerning this issue, examines the applicable international
legal standards as well as relevant international and regional case law and provides
‘ Available online at www.osce.org/odihr/itemll_283l4.htm1.
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her conclusions and recommendations so that the rights and limitations in this area
may be adequately balanced.
26. The present report will deal with citizenship issues and religious
discrimination in administrative procedures in the context of freedom of religion or
belief With regard to the historical and political context of minorities and the
discriminatory denial or deprivation of citizenship, the Special Rapporteur would
like to refer to the latest report submitted by the independent expert on minority
issues (A/HRC/7/23 and Add. 1-3). In that report, the independent expert also
outlines international law considerations, such as the right to a nationality, 5 the
centrality of non-discrimination, citizenship, and the enjoyment of human rights,
fundamental freedoms and minority rights. The independent expert emphasized that,
with limited exceptions, States have a duty to protect and promote the complete
panoply of human rights of all persons who are present within their territory,
whether they are citizens or not.
A. State practice and domestic legislation
27. Most States do not openly discriminate on the basis of religion in citizenship
applications or other administrative procedures. However, the Special Rapporteur
has reported on a number of instances in which State practice or domestic
legislation is inconsistent with human rights standards. These reports refer for
example to the denial or deprivation of citizenship based on a person's religious
affiliation, compulsory mentioning of selected religions on official identity cards or
passports, requirements to denounce a particular faith when applying for official
documents and restricted eligibility for State functions.
1. Citizenship dependent on affiliation with a particular religion
28. During her visit to the Maldives in August 2006, the Special Rapporteur was
informed that, according to section 2 (a) of the Maldivian Citizenship Act, it was not
possible for non-Muslims to obtain Maldivian citizenship. A number of interlocutors
also indicated that applicants for Maldivian citizenship had to pass a test on Islam;
however, the Government stated that this was not a legal requirement. A draft bill to
replace the Citizenship Act with even more stringent criteria for Muslims was
redrawn by the Government after debates in Parliament (A/HRC/4/21/Add.3,
para. 45).
29. There are States, such as Saudi Arabia 6 and Kuwait, 7 where only Muslims
obtain citizenship. In response to a letter from the Government of Saudi Arabia, the
first mandate holder, Angelo Vidal d'Almeida Ribeiro, made the following
observations:
As in the report of the independent expert (A/HRC/7/23, para. 18), the terms “nationality” and
“citizenship” are used as synonyms for the purposes of the present report.
6 CRC/C/i 36/Add. 1, para. 98 (second periodic report of Saudi Arabia to the Committee on the
Rights of the Child): “Although all Saudi citizens are Muslims, the State nevertheless respects
the right of non-Muslim residents to their religious beliefs.”
E/CN.4/1998/6, para. 58: “(c) In Kuwait, according to allegations from severai sources,
citizenship is denied to non-Muslims.”
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as concerns the reply of the Government of Saudi Arabia according to
which ‘100 per cent of all the citizens of Saudi Arabia are adherents of the
Muslim religion', he would like to indicate that such uniformity does not exist
in either political or religious matters. Mankind has a right to diversity, to the
freedom of thought, conscience and belief, without limits being imposed on
anyone, except in cases where restrictions to their exercise are prescribed”
(E/CN.4/1993/62, para. 53).
30. Some believers are not only prevented from becoming citizens based on
religious affiliation, but they may also lose their citizenship if they decide to change
their religion. The Special Rapporteur has been informed of such a deprivation of
citizenship following a conversion from the dominant religion to another religion. 8
2. Access to and contents of official documents
31. Some States deny official documents, including identity cards, passports, birth
certificates and marriage licences, to members of certain religious communities or
only issue these documents to members of a particular religious group. 9
Administrative obstacles with regard to applications for these documents, including
requesting members of a particular group applying for identity cards to supply
additional documents, may also restrict the rights of the individuals concerned.
Converts to a different religion sometimes encounter problems when they request
that official documents reflect the change of their religious affiliation.
32. Several States require that religious affiliation be specified on identity cards,
passports and/or the application forms for either. 10 In some cases there is a choice
between only two' or 12 officially recognized religions, without the option to
refrain from indicating one's religion or to declare that one is an atheist or
non-theist. Computerized systems may aggravate the problem when they are
programmed in a manner so as to prevent any religious affiliation other than those
preselected by the State from being entered.
33. When applying for official documents, some groups have to subscribe to
specific statements with regard to their substantive religious beliefs. In Pakistan,
Muslims are required to solemnly declare in their passport application form that
they “do not recognize any person who claims to be a prophet in any sense of the
E/CN.4/2000/65, para. 64 (on the Maldives).
A/HRC/7/l0/Add.l, paras. 79-85 (on Egypt); A/HRC/4/21/Add.3 (on the Maldives), para. 45.
10 E/CN.4/1996/95/Add.2 (on the Islamic Republic of Iran), para. 62; E/CN.4/1996/95/Add.l (on
Pakistan), paras. 22 and 23.
A/HRC/8/18, para. 31 (on the Occupied Palestinian Territory, including East Jerusalem): “The
West Bank and Gaza identity cards indicate whether the cardholder is Muslim or Christian, with
no possible alternatives. The identity cards of those who are not believers, for example, indicate
that they have the same religion as their parents; in contrast, cards of Jerusalem residents and
Israeli citizens do not contain information about religion.”
12 E/CN.4/2004/63, paras. 40 and 41; E/CN.4/2005/61/Add.l, para. 85; E/CN.4/2006/5/Add.l,
para. 117; AIHRC/7/l 0/Add. 1, paras. 79-85 (on Egypt). However, in two judgements dated
29 January 2008 (No. 18354/58 andNo. 12780/61) the Cairo Court ofAdministrative Justice
annulled decisions of the administration which had abstained from pulling a dash or another
symbol in the space reserved for religion on the applicants' identity cards or birth certificates
after ascertaining that they previously had been issued official documents that do not indicate
one of the three recognized religions in Egypt (Judaism, Christianity and Islam). See also
A/HRC/7/23, para. 53.
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word or any description whatsoever after Muhammad (peace be upon him) or
recognize such claimant as prophet or a religious reformer as a Muslim” and that
they “consider Mirza Ghulam Ahmad Quadiani to be an imposter Nabi and also
consider his followers whether belonging to the Lahori or Quadiani Group to be
Non-Muslim”. 13
34. Denying official documents or creating obstacles in the application process for
members of particular religious groups may have serious consequences for their
civil and political rights as well as for their economic, social and cultural rights.
Those who have no valid identity papers are often unable to vote and thus are
excluded politically. Other consequences include difficulties in obtaining
employment in the public sector, 14 opening bank accounts, establishing businesses
and getting access to health care or continuing higher education. 15 Random checks
performed by the police may result in detention for those without identity papers.
Furthermore, restrictions in the issuance of passports or visas based on religious
affiliation can restrict the movement of the individuals concerned. 16
35. Immigration issues are sometimes referred to by States as a reason to limit the
right to obtain official documents or to impose stricter requirements for some
groups. Usually State measures in this area are not specifically directed against
particular religious groups, but against people with certain regional or ethnic
backgrounds. However, where the majority of these persons belong to a certain
religious group, the Government actions may de facto target that group
disproportionately.
36. Specifying religion or ethnic origin on identity cards and the establishment of
different categories of citizenship may result in discrimination, stigmatization or the
denial of certain rights. 17 Some religious groups are granted preferential treatment,
receiving automatic citizenship and financial benefits from the Government,
whereas people who do not belong to that religious group are denied this
treatment. 18 Another State practice is requiring citizens to mention their religious
affiliation on tax forms for the purpose of levying church taxes for some churches in
that country. 19
3. Restrictions on certain rights of members of particular religious groups
37. Some Governments restrict the rights of members of particular religious
groups in administrative procedures. For instance, registry offices refuse to register
marriages of persons not belonging to one of the recognized religions, or inter-
13 The passport application form is available on the website of the Government of Pakistan:
; see also the Special Rapporteur's
report on her visit to Pakistan (EICN.41l9961951Add.l, para. 24).
14 EICN.4 12005 16l 1Add.l, para. 173 (on Myaim ar), A/HRC/4/21/Add.3 (on the Maldives),
paras. 43 and 44.
15 A/HRC/7/l0/Add.l, paras. 81-83 (on Egypt).
16 EICN.41l9961951Add.2 (on the Islamic Republic of Iran), para. 107; EICN.41l9961951Add.l (on
Pakistan), paras. 23, 78 and 85.
17 Committee on the Rights of the Child, concluding observations: Myanmar (CRC/C/15/Add.237),
para. 34.
18 Committee on Economic, Social and Cultural Rights, concluding observations: Israel
(E/C.12/l/Add.90), para. 18; similar concerns were raised by the Committee on the Elimination
of Racial Discrimination (CERDICIISRICOI1 3, para. 17).
19 EICN.41l998161Add.2 (on Germany), paras. 11 and 18.
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religious marriages; 20 divorces between people belonging to a particular religious
group are not recognized and their right of succession is not respected; 2 '
immigration and residence rights as well as other privileges such as access to land
and benefits for immigrants are only provided to members of a certain religious
community. 22 Some registration provisions require that the leaders of religious
associations must be citizens, which may adversely affect religious minority groups
if exclusively foreign clergy serve in that particular country. 23 Also, persons who
wish to change their name because their religion requires it may find their request
denied. 24 Another issue is the discrimination women face in the application of
religious laws, in particular in areas such as divorce, inheritance, custody of
children, transmission of citizenship 25 and freedom of movement. 26
38. Some countries place an obligation upon those who wish to take up posts in
the public service or become part of the judiciary to take an oath declaring their
allegiance to a certain religion. Several constitutional provisions require the
president, 27 the prime minister 28 and members of parliament 29 to be affiliated with
a certain religion and to publicly so state by taking an oath. In other countries the
king or queen, 3 ° the highest offices in the judiciary such as the attorney-general and
the chief justice and members of the national human rights commission 3 ' have to
take such an oath. Restricting public posts to members of certain religions also
occurs and may constitute de facto discrimination. 32 Sometimes candidates for a
post in the public service have to be members of a particular denomination of the
dominant religion in that State.
20 E/CN.4/1995/91, p. 49 and E/CN.4/2005/61/Add.l, para. 132 (on Indonesia). See also
E/CN.4/1996/95/Add.2 (on the Islamic Republic of Iran, where Baha'i marriages are not
recognized), para. 62.
21 E/CN.4/1996/95/Add.2 (on the Islamic Republic of Iran), para. 62.
22 Committee on the Elimination of Racial Discrimination, concluding observations: Israel
(CERD/C/ISR/CO/13), para. 17.
23 A/HRC/7/l 0/Add.2 (on Tajikistan), para. 37 and AIHRC/7/l 0/Add. 1, para. 246 (on the draft law
of Tajikistan).
24 Coeriel etal. V. The Netherlands (CCPR/C/48/D/453/1991), para. 6.1.
25 E/CN.4/2000/65, para. 19 (on Brunei Darussalam); E/CN.4/2002/73/Add.2 (French only),
para. 137 (citing reports of the Committee on the Elimination of Discrimination against Women
on Algeria, Jordan and Kuwait).
26 A/54/386, para. 83 (on Yemen).
27 A/51/542/Add. 1 (on Greece), paras. 15-17; E/CN.4/1996/95/Add. 1 (on Pakistan), para. 17.
28 E/CN.4/1996/95/Add.l (on Pakistan), para. 17.
29 A/HRC/4/21/Add.3 (on the Maldives), para. 10; see also article 62 of the Constitution of
Pakistan: “A person shall not be qualified to be elected or chosen as a member of Majlis-e-
Shoora (Parliament) unless ... (d) he is of good character and is not commonly known as one
who violates Islamic Injunctions; (e) he has adequate knowledge of Islamic teachings and
practises obligatory duties prescribed by Islam as well as abstains from major sins; ... Provided
that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a
non-Muslim, but such a person shall have good moral reputation
30 A/HRC/7/l0/Add.3 (on the United Kingdom of Great Britain and Northern Ireland), para. 30.
31 A/HRC/4/21/Add.3 (on the Maldives), paras. 43 and 44.
32 A/55/280/Add.2 (on Bangladesh), para. 96.
“ A/HRC/4/21/Add.3 (on the Maldives), para. 43. Articles 34(a) and 66 (a) of the 1997
Constitution of the Maldives requires the President, the Cabinet ministers and the Attorney-
General to be “a Muslim of Sunni following”; however, all Muslims are qualified to become a
member of the People's Majlis, to be appointed as an atoll chief, chief justice or judge as well as
to be a voter in elections and public referendums.
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B. International legal standards
1. Citizenship dependent on affiliation with a particular religion
39. The State determines the criteria on the basis of which citizenship is accorded.
However, it may not do this in a discriminatory manner, such as making a
distinction on the basis of religion or belief From the perspective of human rights
law it seems impossible to justify the denial of citizenship to applicants who are not
members of the majority religion in a given State. Consequently, in her country
reports, the Special Rapporteur has encouraged legislators to consider introducing
amendments to the citizenship law to bring it into compliance with treaty
obligations, particularly with regard to non-discrimination provisions.
40. The principle of non-discrimination can be found in various international and
regional human rights instruments. Article 2 (1) of the International Covenant on
Civil and Political Rights prohibits discrimination on the grounds of religion, as do
article 2 (2) of the International Covenant on Economic, Social and Cultural Rights,
article 30 of the Convention on the Rights of the Child, article 5 (d) (7) of the
International Convention on the Elimination of All Forms of Racial Discrimination,
article 14 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights) and article 1 of the American
Convention on Human Rights. The 1981 Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief calls on all
States to “take effective measures to prevent and eliminate discrimination on the
grounds of religion or belief in the recognition, exercise and enjoyment of human
rights and fundamental freedoms in all fields of civil, economic, political, social and
cultural life” (art. 4(1)).
41. One example of a discriminatory action with regard to citizenship on the basis
of religion or belief could be where an individual's application to obtain citizenship
is denied because the applicant, or his or her spouse, wears a religious symbol. The
Swiss Federal Tribunal recently adjudicated that wearing a headscarf is a
manifestation of the constitutionally protected right to freedom of religion or belief
which should be interpreted in the light of the prohibition of discrimination. The
Tribunal found that the mere wearing of a headscarf does not indicate a lack of
respect for the constitutional order and consequently the decision not to grant
citizenship to the woman in question violated the principle of equality. In France,
however, the citizenship application of a Salafi Muslim woman from Morocco who
wears a black burka and reportedly lives in total submission to her male relatives
was rejected in 2005 on the grounds of insufficient assimilation. The French Council
of State recently upheld the rejection, arguing that the women's adoption of a
“radical practice of her religion [ was] incompatible with the essential values of the
French community, in particular the principle of equality of the sexes”. 36
42. Migrants seem to be in a particularly vulnerable position, inter alia, with
regard to their freedom of religion or belief Immigration policies and citizenship
tests must not discriminate on the basis of the applicant's religious background. In
this regard concerns about the contents of questionnaires and interview guidelines
‘ A/HRC/4/21/Add.3 (on the Maldives), para. 67.
Tribunal Fédéral Suisse, judgements 1D 1 1 /2007 and 1D12/2007 of 27 February 2008
(German only).
36 Conseil d'Etat, decision No. 286798 of 27 June 2008 (French only).
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used by domestic naturalization authorities were expressed in an urgent appeal sent
jointly by the Special Rapporteur on freedom of religion or belief, the Special
Rapporteur on the human rights of migrants and the Special Rapporteur on
contemporary forms of racism, racial discrimination, xenophobia and related
intolerance.
43. Furthermore, the right to a nationality is enshrined, inter alia, in article 15 of
the Universal Declaration of Human Rights and article 20 of the American
Convention on Human Rights. Article 24 (3) of the International Covenant on Civil
and Political Rights and article 7 of the Convention on the Rights of the Child
guarantee the right to every child to acquire a nationality. Article 7 of the latter
should be read in conjunction with its article 2, one of the Convention's general
principles, which prohibits discrimination on the basis of, inter alia, religion or
belief The 1961 Convention on the Reduction of Statelessness equally recognizes
the right to a nationality and its article 9 provides that a “Contracting State may not
deprive any person or group of persons of their nationality on racial, ethnic,
religious or political grounds”. The 1954 Convention relating to the Status of
Stateless Persons also stipulates that the provisions of the Convention shall apply
without discrimination as to religion (art. 2).
44. In its resolution 41/70 on international cooperation to avert new flows of
refugees, the General Assembly called upon all States to comply with the
recommendations of the report of the Group of Governmental Experts to Avert New
Flows of Refugees (A/41/324, aimex) and, in particular, the recommendation to
promote human rights and fundamental freedoms and to refrain from denying them
on the basis of, inter alia, religion (ibid., para. 66 (d)). Furthermore, reference
should also be made to Human Rights Council resolution 7/10, in which the
Council called upon States to refrain from taking discriminatory measures and from
enacting or maintaining legislation that would arbitrarily deprive persons of their
nationality. The Subcommission on the Promotion and Protection of Human Rights
decided in 2000 to appoint a special rapporteur on the rights of non-citizens. In his
final report, the Special Rapporteur, David Weissbrodt, concluded that all persons
should by virtue of their essential humanity enjoy all human rights, including
freedom of religion or belief, unless exceptional distinctions, for example, between
citizens and non-citizens, serve a legitimate State objective and are proportional to
the achievement of that obj ective.
2. Access to and contents of official documents
45. Denying official documents to members of certain religions or limiting the
right to receive these documents to members of particular religious groups is in
contravention of the principle of non-discrimination on the grounds of religion or
belief, as mentioned above. With regard to the compulsory mentioning of selected
religions on official documents, the Special Rapporteur has emphasized that “to
exclude any mention of religions other than Islam, Christianity or Judaism would
appear to be a violation of international law”.”° Even the optional reference to a
A/HRC/4/21/Add.l, paras. 152-158 (on Germany).
38 See draft report of the Human Rights Council on its seventh session (A/HRC/7/L.1 1), chap. I, sect. A.
E/CN.4/Sub.2/2003/23, para. 1.
40 E/CN.4/2004/63, para. 42 (on Egypt). See also the most recent communications report of the
Special Rapporteur (A/HRC/7/l 0/Add. 1), paras. 79-85.
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person's religion on identity papers “could still pose a problem to the extent that
social pressures might make it difficult to omit mention of one's religion or
beliefs”. “
46. The freedom to have and adopt a religion or belief is enshrined in several
international and regional legal standards. This right also includes a negative
freedom not to belong to any religious group or to live without religious
confession. 42 In paragraph 3 of its general comment No. 22 (1993), the Human
Rights Committee underlined that no one can be compelled to reveal his thoughts or
adherence to a religion or belief In view of the negative freedom of religion or
belief, this necessarily also includes the right not to be compelled to reveal one's
non-adherence to a particular religion or belief
47. The Special Rapporteur has emphasized both the positive and the negative
freedom of religion or belief in the context of religious symbols. 44 This
differentiation is also relevant with regard to the obligation to state one's religion or
belief on official documents. Whereas some may wish to declare their religion and
thus exercise their positive freedom of religion or belief, others may rightly wish not
to do so, which would amount to the exercise of their negative freedom of religion
or belief
48. Moreover, article 18 (2) of the International Covenant on Civil and Political
Rights prohibits the State from exercising coercion to belong or not to belong to a
certain religious group. The Human Rights Committee has interpreted this provision
as follows:
“Article 18.2 bars coercion that would impair the right to have or adopt a
religion or belief, including the use or threat of physical force or penal
sanctions to compel believers or non-believers to adhere to their religious
beliefs and congregations, to recant their religion or belief or to convert.
Policies or practices having the same intention or effect, such as, for example,
those restricting access to education, medical care, employment or the rights
guaranteed by article 25 and other provisions of the Covenant, are similarly
inconsistent with article 18.2. The same protection is enjoyed by holders of all
beliefs of a non-religious nature.” 45
49. The imposition by the State of a duty on individuals to publicly state their
allegiance to a certain religion on official documents may also constitute a
limitation of their right to manifest their religion or belief In cases where the
application procedure for such official documents only allows the applicant to select
from a limited number of religions, those applicants whose religion is not included
in the list may not be able to manifest their religion by having their allegiance to it
made public. In addition, there is equally a right not to manifest one's religion,
which would also be limited through the requirement to mention one's religion on
an official document.
“ A/55/280/Add.1 (onTurkey), para. 22.
42 Manfred Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary (2nd ed),
Kehl am Rhein, N. P Engel Verlag, 2005, art. 18, para. 15.
See OfficialRecords of the GeneralAssembly, Forty-eighth Session, Supplement No. 40
(A/48140), vol. I, annex VI.
‘ ‘ EICN.41200615, paras. 36-60.
OfficialRecords of the GeneralAssembly, Forty-eighth Session, Supplement No. 40 (A/48140),
vol. I, almex VI, para. 5.
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50. Contrary to the right to have or adopt a religion (forum internum), the freedom
to manifest one's religion or belief (forum externum) may be subject to limitations,
for example, according to article 29 (2) of the Universal Declaration of Human
Rights, article 18 (3) of the International Covenant on Civil and Political Rights,
article 1 (3) of the 1981 Declaration, article 9 (2) of the European Convention on
Human Rights and article 12 (3) of the American Convention on Human Rights.
However, 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, morals, or the fundamental rights and freedoms of others.
51. The right to freedom of religion or belief is also included in the concept of
identity, which is an integral part of the right to privacy, as enshrined in article 17 of
the International Covenant on Civil and Political Rights. 46 According to article
17 (1) of the Covenant, no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation. The Human Rights Committee elaborated in
its general comment No. 16(1988) that
“the expression ‘arbitrary interference' can also extend to interference
provided for under the law. The introduction of the concept of arbitrariness is
intended to guarantee that even interference provided for by law should be in
accordance with the provisions, aims and objectives of the Covenant and
should be, in any event, reasonable in the particular circumstances. ... As all
persons live in society, the protection of privacy is necessarily relative.
However, the competent public authorities should only be able to call for such
information relating to an individual's private life the knowledge of which is
essential in the interests of society as understood under the Covenant.” 47
52. With regard to the mentioning of religion on identity cards, the Committee on
the Rights of the Child recommended in its concluding observations, in the light of
article 7 of the Convention (right to name and nationality), that the State party
concerned should “abolish the categories of citizens, as well as the statement on the
national identity card of the religion and ethnic origin of citizens, including
children” 48
53. The privacy aspect also becomes important in those situations where the State
asks taxpayers to mention their religion on the tax form, for the purpose of levying
taxes for certain major churches. Under certain circumstances this practice could be
perceived as according benefits to certain religions in a discriminatory manner. 49
The State should take appropriate steps to guarantee that the information provided
on the tax forms is not used for any purposes other than within the framework of the
levying of taxes.
46 Nowak, op. cit., art. 17, para. 18.
OfficialRecords of the GeneralAssembly, Forty-third Session, Supplement No. 40 (A/43140),
annex VI, paras. 4 and 7.
48 Committee on the Rights of the Child, concluding observations: Myanmar (CRCICI15IAdd.237),
para. 35.
See EICN.41l998161Add.2 (on Germany), paras. 11 and 18, where the Special Rapporteur also
explains that in the context of Germany these advantages are not related to the religious
character of the church, but to recognition of the fact that it is in the public interest, or regarded
as compensation for assets which had been confiscated without payment.
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54. Furthermore, article 12 of the International Covenant on Civil and Political
Rights guarantees the right to freedom of movement, which encompasses the right
to leave any country, including one's own. This right also includes a right to
issuance of travel documents, as a positive duty upon States to ensure the effective
guarantee of the right to leave a country. 5 ° The Human Rights Committee has
emphasized that where a State denies the issuance of a passport, this restriction of
the right to leave requires special justification pursuant to article 12 (3) of the
Covenant. 5 ' Limitations on the freedom of movement require a legal basis, have to
be compatible with the other rights of the Covenant and be necessary and
proportionate to the aim pursued. Prohibiting a person from leaving a country on
account of his or her religious beliefs is incompatible with the freedom of religion
or belief and the principle of non-discrimination and therefore violates article 12 (3)
of the Covenant. 52 The Human Rights Committee has expressed its concern about
obstacles in certain States that make it more difficult to leave the country, inter alia
in the context of passport applications, and urges States to ensure that all restrictions
imposed are in full compliance with article 12(3) of the Covenant.
3. Restrictions on certain rights of members of particular religious groups
55. Restricting the rights related to citizenship of those belonging to certain
religious groups violates the principle of non-discrimination as enshrined in
international and regional human rights law (see paras. 34-44 above).
56. With regard to the denial to women of certain rights related to citizenship on
the basis of religion, article 1 of the Convention on the Elimination of All Forms of
Discrimination against Women prohibits any discrimination on the basis of sex that
limits women's human rights. Furthermore, the right of everyone under article 16 of
the International Covenant on Civil and Political Rights to be recognized
everywhere as a person before the law implies that the capacity of women to own
property, to enter into a contract or to exercise other civil rights may not be
restricted on the basis of marital status or any other discriminatory ground. ‘
57. The previous mandate holder, Abdelfattah Amor, has also warned against the
occurrence of aggravated discrimination following the adoption by the State of the
religion of the majority or of the ethnically dominant minority. He has also noted
that the existence of a State religion may not in itself be incompatible with human
rights but must not be exploited at the expense of the rights of minorities and the
rights linked to citizenship, which imply prohibition of discrimination among
citizens on the grounds, inter alia, of considerations relating to religion or belief
Indeed, “to the extent that everything ultimately depends on the goodwill of the
State, the personality of those in office at any given moment, and other
unpredictable or subjective factors, there is no serious guarantee in law that the
5 0 Human Rights Committee, general comment No. 27(1999), OfficialRecords of the General
Assembly, Fifty-fifth Session, Supplement No. 40 (A/55140), vol. I, almex VI, sect. A, para. 9;
Nowak, op. cit., art. 12, para. 19.
“ SamuelLichtensztejn v. Uruguay, views of 31 March 1983 (CCPRICI18IDI77I198O), para. 8.3.
52 General comment No. 27(1999), para. 18.
Ibid., para. 17.
Human Rights Committee, general comment No. 28 (2000), OfficialRecords of the General
Assembly, Fifty-fifth Session, Supplement No. 40 (A/55140), vol. I, almex VI, sect. B, para. 19.
AI5lI542IAdd.l (on Greece), para. 132; see also EICN.41l9961951Add.2 (on the Islamic
Republic of Iran), para. 88; A/5l15421Add.2 (on the Sudan), para. 134.
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State will at all times respect minority ethnic and religious rights”.
(A/CONF.189/PC.1/7, annex, para. 119)
58. Concerning reservations of public posts, the Human Rights Committee stated
in paragraph 9 of its general comment No. 22 (1993) that “measures restricting
eligibility for government service to members of the predominant religion or giving
economic privileges to them or imposing special restrictions on the practice of other
faiths, are not in accordance with the prohibition of discrimination based on religion
or belief and the guarantee of equal protection under article 26”. In addition, the
Human Rights Committee noted in the case of Waldman v. Canada that the fact that
a distinction is enshrined in the Constitution of a State does not render that
distinction reasonable and objective.
59. With respect to the obligation to take an oath stating allegiance to a certain
religion when one wishes to take up a public post, reference can be made to the
above-mentioned provisions relating to the positive and negative freedom of
religion or belief, the prohibition of coercion by the State regarding the freedom of
religion or belief and the permissible limitations of the manifestation of the freedom
of religion or belief
C. International and regional case law
60. There seem to be only a few pertinent judgements at the international or
regional level relating to the above-mentioned citizenship issues and religious
discrimination in administrative procedures.
1. Human Rights Committee
61. The Human Rights Committee implied in Coeriel et al. v. The Netherlands that
a case may fall within the ambit of article 18 of the International Covenant on Civil
and Political Rights when a State does not allow a change of family name of a
person who claims this is necessary in the context of his or her religion. The
complainants in that case, Mr. Coeriel and Mr. Aurik, wished to change their family
name to Hindu names after having adopted the Hindu religion. However, the
Committee found the complaint inadmissible under article 18 of the Covenant, as
“the regulation of surnames and the change thereof was eminently a matter of public
order and restrictions were therefore permissible under paragraph 3 of article 18”.
With regard to privacy, the majority of the Committee members held that in the
circumstances of the instant case the refusal of the authors' request was arbitrary
within the meaning of article 17 (1) of the Covenant, since the grounds for limiting
the authors' rights were not reasonable. 58
56 Human Rights Committee, Waldman v. Canada, views of 3 November 1999
(CCPR 1C 167 1D 1694 11996), para. 10.4.
Human Rights Committee, Coeriel et al. v. The Netherlands, views of 31 October 1994
(CCPR 1C 148 1D 1453 11991), para. 6.1; the Committee also considered that the Government of the
Netherlands “could not be held accountable for restrictions placed upon the exercise of religious
offices by religious leaders in another country”, i.e. requirements imposed by Indian Hindu
leaders.
58 Ibid., para. 10.5. See also the dissenting individual opinions of Nisuke Ando and Kurt Herndl.
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2. European Commission/Court of Human Rights
62. Mr. Aurik and Mr. Coeriel had also submitted a complaint to the European
Commission on Human Rights. The Commission declared the complaint under
articles 9 and 14 of the European Convention on Human Rights inadmissible as
manifestly ill-founded since the complainants had not established that their religious
studies would be impeded by the refusal to modify their surnames. 59
63. The European Court of Human Rights has also dealt with the wording of oaths
for elected members of national legislatures. In the case of Buscarini and others v.
San Marino, the Court found that freedom of thought, conscience and religion
“entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or
not to practise a religion”. 60 The applicants in this case had been elected to the
General Grand Council of the Republic of San Marino whose members have to
swear an oath “on the Holy Gospels” before taking office. The Court indicated that
the requirement to swear allegiance to a particular religion on pain of forfeiting
parliamentary seats would be contrary to the freedom of thought, conscience and
religion unless it was prescribed by law, pursued one or more of the legitimate aims
set out in article 9 (2) of the European Convention on Human Rights and was
necessary in a democratic society. The Court ultimately found that “requiring the
applicants to take the oath on the Gospels was tantamount to requiring two elected
representatives of the people to swear allegiance to a particular religion, a
requirement which is not compatible with article 9 of the Convention. As the
Commission rightly stated in its report, it would be contradictory to make the
exercise of a mandate intended to represent different views of society within
Parliament subject to a prior declaration of commitment to a particular set of
beliefs.” 6 '
64. In McGuinness v. the United Kingdom, the European Court of Human Rights
further developed its case law on this matter. Martin McGuinness, an elected
Member of Parliament of Sinn Fein in Northern Ireland, was required to take an
oath of allegiance to the British monarchy 62 before taking his seat in Parliament. He
alleged that to take the prescribed oath would offend his religious beliefs as they are
enshrined in article 9 of the European Convention on Human Rights, as he was a
Roman Catholic and that under the law of the United Kingdom, Roman Catholics
are barred from acceding to the throne. The Court referred to its judgement in
Buscarini and others; however, in this case it found that since the applicant was not
required to swear or affirm allegiance to a particular religion on pain of forfeiting
his parliamentary seat or as a condition of taking up his seat, the applicant's
complaint under article 9 of the European Convention was manifestly ill-founded. 63
65. In Buscarini and others v. San Marino, the European Court of Human Rights
referred to another leading case, Kokkinakis v. Greece, where the Court had stated
that “ [ a]s enshrined in Article 9 (art. 9), freedom of thought, conscience and religion
European Commission on Human Rights, inadmissibility decision of 2 July 1992, application
No. 18050/91; see also the reference in CCPR/C/48/D/453/ 199 1, para. 2.4.
60 European Court of Human Rights, judgement of 18 February 1999, application No. 24645/94,
para. 34.
61 Ibid., para. 39.
62 “J [ name] do swear that I will be faithful and bear true allegiance to her Majesty Queen
Elizabeth II, her heirs and successors, according to the law. So help me God.”
63 European Court of Human Rights, judgement of 8 June 1999, application No. 39511/98, para. 2.
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is one of the foundations of a ‘democratic society' within the meaning of the
Convention. 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 it is also a
precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism
indissociable from a democratic society, which has been dearly won over the
centuries, depends on it.” 64
3. Inter-American Court of Human Rights
66. The Inter-American Court of Human Rights made only some brief remarks on
freedom of religion in the case of Dilcia Yean and Violeta Bosico v. Dominican
Republic. 65 The Inter-American Court of Human Rights found that, by refusing to
issue birth certificates and preventing the applicants, children of Haitian descent
born in the Dominican Republic, from enjoying their citizenship rights owing to
their ancestors' origin, the State had violated their rights to nationality, to equal
protection, to a name and to juridical personality as well as the right to humane
treatment. Regarding the claim that the Dominican Republic had also violated the
applicants' freedom of conscience and religion under article 12 of the American
Convention, however, the Court considered that the facts of the instant case were
not adapted to it and consequently did not rule on that aspect.
11/. Conclusions and recommendations
67. The State practice and domestic legislation on citizenship issues and
administrative procedures as outlined above (see paras. 25-66 above) shows
that Governments sometimes impose restrictions in such a way that the right to
freedom of religion or belief of the persons concerned is adversely affected.
While the State may have a legitimate interest in limiting some manifestations
of the freedom of religion or belief, when applying limitations the State must
ensure that certain conditions are fulfilled. Any limitation must be based on the
grounds of public safety, order, health, 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. 66
68. In essence, freedom of religion or belief and the legitimate interests of the
State will have to be balanced on a case-by-case basis. In addition to the right to
freedom of religion or belief, the individual's right to privacy and liberty of
movement, his or her right to a nationality as well as the principle of
non-discrimination may also be at stake. Keeping in mind this case-by-case
approach and the balancing exercise, the Special Rapporteur would like to
highlight some aspects that may help to determine whether certain restrictions
on the right to freedom of religion or belief are in contravention of human
rights law.
64 European Court of Human Rights, judgement of 25 May 1993, application No. 14307/88,
para. 31.
65 Inter-American Court of Human Rights, judgement of 8 September 2005, Series C No. 130,
paras. 202-207.
66 See for example article 18 (3) of the International Covenant on Civil and Political Rights as well
as the Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights (E/CN.4/1985/4, annex), para. 10.
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69. The State cannot impose or interpret limitations in a way that would
jeopardize the essence of the right concerned. Consequently, forcing someone
who wishes to take up a public post to take an oath swearing his or her
allegiance to a certain religion may amount to coercion by the State and would
violate the individual's freedom of religion or belief. Similarly inconsistent with
article 18 (2) of the International Covenant on Civil and Political Rights would
be citizenship policies or practices which restrict access to education, medical
care, employment, humanitarian assistance or social benefits in order to compel
believers or non-believers to adhere to, recant or change their religious beliefs.
70. Measures that discriminate on the basis of religion or belief, or lead to
de facto discrimination on such grounds, violate human rights standards.
Consequently, it would be contrary to the principle of non-discrimination to
restrict citizenship to people with certain religious beliefs or to deny official
documents based on the applicant's religious affiliation. It is also a
discriminatory State practice to restrict public posts to members of certain
religions or to require candidates to adhere to a particular denomination of the
dominant religion in that State. However, the principle of equality may require
States to take affirmative action in order to diminish or eliminate conditions
which cause or help to perpetuate discrimination. Thus, reserving a certain
proportion of seats in legislatures to members of religious minorities might be a
case of legitimate differentiation as long as such action is needed to correct
discrimination in fact.
71. Measures that limit the freedom of religion or belief must pursue a
legitimate aim and be proportionate to the aim. Furthermore, any assessment
as to the necessity of a limitation should be based on objective considerations.
72. It would be a legitimate aim were a State to ask for the religious affiliation
of its citizens, for example, within the framework of conducting a national
census that will allow the State to analyse issues related to freedom of religion
or belief. However, the burden of justifying a limitation upon human rights
such as freedom of religion or belief or the individual's right to privacy lies
with the State.
73. Laws imposing limitations on the exercise of human rights should not be
arbitrary or unreasonable. If the State wishes to mention religious affiliation on
official documents, various categories of affiliation, including open-ended ones,
need to be provided. It is never sufficient to provide as the only possibility a
choice from a limited number of officially recognized religions; there should
also be the possibility for the individual to indicate “other religion” or “no
religion”, and the possibility not to divulge his or her religious beliefs at all. In
general, any indication of one's religious affiliation should be on a voluntary
basis.
74. All limitations should be interpreted in the light and context of the
particular right concerned. Taking into account the nature of the positive and
negative freedom of religion or belief, applicants for official documents should
not be obliged to subscribe to specific statements with regard to their
substantive religious beliefs.
75. Governments may argue that they need to be informed of the religious
affiliation of their citizens in order to know, for example, under which
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(religious) personal law a marriage should be registered. When restricting the
freedom of religion or belief, however, a State should use no more restrictive
means than are required for the achievement of the purpose of the limitation. A
less restrictive means from the individual's perspective could be devised by the
State, for example, by providing a civil alternative for the registration of
marriages.
76. As article 12 (3) of the International Covenant on Civil and Political
Rights requires that any restrictions on the liberty of movement must be
consistent with the other rights recognized in the Covenant, it seems advisable
to remove questions in passport or visa application forms concerning the
applicant's religious affiliation.
77. Indicating a person's religious affiliation on official documents carries a
serious risk of abuse or subsequent discrimination based on religion or belief,
which has to be weighed against the possible reasons for disclosing the holder's
religion.
78. Every limitation imposed should be subject to the possibility of challenge
to and remedy against its abusive application. Fundamental fairness and the
right to appeal must be guaranteed in all citizenship and administrative
procedures.
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