Monitoring freedoms and rights of religious minorities: a comparative perspective

Monitoring freedoms and rights of religious minorities: a comparative perspective Dr.Angela Melchiorre and Pietro de Perini, University of Padova, Italy WORKING PAPER (please, do not quote) Abstract This paper pursues a dual goal. First, it offers insights into the interpretation of the links between religion, human rights and minorities by international human rights oversight mechanisms and into how this interpretation has evolved, especially in the last decade. Secondly, it provides an empirical overview of how international standards on freedoms and rights of religious minorities are monitored and protected in different parts of the world. In this perspective, the paper also aims to highlight and discuss the conundrum faced by persons belonging to religious minorities to see their human rights recognised, on the one hand, as minorities and, on the other, as individuals discriminated against on the basis of religion. The analysis is based on a comparison of the main findings of United Nations monitoring mechanisms on the implementation of freedoms and rights of religious minorities, including the work of the UN Treaty Bodies - in particular, the Human Rights Committee - and Special Procedures, namely the Independent Expert/Special Rapporteur on minority issues and the Special Rapporteur on freedom of religion or belief. Introduction The relationship between religion and human rights has attracted increased international attention in recent years within both the academic community and the international and regional human rights monitoring machinery. Among other causes, this interest has been growing due to the relevance acquired by a number of global challenges which are more or less evidently connected to a religious component, such as the consequences of rising migratory flows and their effects on multicultural societies and, more recently, the return in the spotlight of Islamist terrorism. In this context, for 1

instance, the number of countries that experienced religion-related terrorist activities has sensibly grown compared to previous years (Pew Research Centre 2016, 4-5). A particular concern emerging at the crossroads of the many preoccupations about the human rights-religion relationship is the vulnerable situation of persons belonging to religious and broadly speaking belief minorities that, despite a slight decrease in the overall extent of governments restrictions in re, remains a major issue in 82.5% of states (Fox and Akbaba 2015, 1082; Pew Research Centre 2016, 5). The difficult situation of those belonging to these communities worldwide, together with the growing relevance that religion is assuming in international relations, call for a reflection about the scope and effectiveness of existing human rights standards and protection mechanisms on the matter. The role and viewpoint of Human Rights Monitoring Mechanisms (HRMM) becomes crucial in this endeavour. This paper aims to contribute to this broad debate by pursuing a dual goal. In the first part, it offers insights into the interpretation of the links between religion, human rights and minorities by international HRMM and into how this interpretation has evolved, especially in the last decade. In the second part, the paper provides an empirical overview of how international standards on freedoms and rights of religious minorities are monitored and protected in different parts of the world. In this perspective, the paper also aims to highlight and discuss the conundrum faced by persons belonging to religious minorities to see their human rights recognised, on the one hand, as minorities and, on the other, as individuals discriminated against on the basis of religion. The analysis is based on a comparison of the main findings of the existing United Nations (UN) monitoring mechanisms on the implementation of freedoms and rights of religious minorities, including the work of the UN Treaty Bodies (TB) - in particular, the Human Rights Committee (CCPR) - and Special Procedures (SP), namely the Independent Expert/Special Rapporteur 1 on minority issues (IE/SR) and the Special Rapporteur on freedom of religion or belief (SR). Primary data are collected through the Universal Human Rights Index under the following research queries: keywords: freedom of religion or belief; publication dates: 2006-2016; Rights: Right to freedom of thought, conscience and religion + Members of minorities; Affected persons: minorities/racial, ethnic, linguistic, religious or descent-based groups; Body type: Special Procedures + Treaty Bodies; Body: CCPR + IE Minorities + SR Freedom of Religion. Given the focus of this paper on monitoring, sources are mainly documents of monitoring mechanisms rather than State parties reports. If this on the one hand limits the extent of the 1 This thematic Special Procedure has been shifted from Independent Expert to Special Rapporteur in 2015. 2

analysis, on the other it allows for the comparative perspective recalled in the title, as TB and SP follow standard guidelines and methodologies (while State parties at times do not). Part 1 - Religious human rights and minorities: a complex puzzle In the framework of international human rights law, religion lies at the intersection of two families of rights, each developed with specific standards and monitoring mechanisms: freedom of religion or belief on the one hand, and minority rights on the other. Clearly, these are to be considered in addition to human rights standards that apply to all, regardless of these categories (Ghanea 2012, 59). Both sets of rights have been enshrined in the 1966 International Covenant on Civil and Political Rights (ICCPR), respectively in art. 18 (built on art. 18 of the 1948 Universal Declaration of Human Rights, and on art. 9 of the 1950 European Convention on Human Rights 2 ) and art. 27. As ICCPR provisions are sources of legal commitment, states that ratified the Covenant have a clear obligation to respect, protect and promote these specific rights. Within this context, the Human Rights Council (2012a) has stressed in its resolution 16/18 on Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief - which according to some commentators is currently dominating the international approach and political response to issues concerning freedom of religion or belief (Evans 2015, 34) - that States also have the primary responsibility to protect the rights of religious minorities. However, despite the fact that religious minorities represent a glaring point of intersection for the application of freedom of religion or belief and minority rights, the overall trend in international human rights law has been to develop standards on these matters often following separate and distinct avenues, at least until the early years of the last decade. Indeed, as it will be elaborated below, during the early 2010s a specific reflection has materialised within the UN on how religious minorities could and should be protected integrating both standards. With a view to introduce an analysis of the ongoing interpretation of these rights by UN human rights mechanisms (Section 1.2) and of their actual monitoring and implementation (Part 2), the following section provides a basic overview of existing standards on both freedom of religion or belief and minorities rights, and includes a discussion of their complementarities and differences. 2 For an overview of the relations between UN and European tools on freedom of religion, see Taylor 2005). 3

1.1 General background on standards and how they intersect In broad terms, international standards on both minority rights and freedom of religion or belief share a tripartite basis that sets out and elaborates in detail their contents and scope, while providing specific guidelines for their protection. This basis is made up by the (already mentioned) legally binding provisions set out in the ICCPR; the authoritative interpretation of such provisions provided by the Human Rights Committee through its General Comments; and soft law instruments which detail and expand what should be the normative and political commitment on the matter by the international community. Article 18 ICCPR states that Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. In 1981, the UN General Assembly (UNGA) adopted the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (A/RES/36/55). This Declaration complements the ICCPR provision setting out an inclusive understanding of intolerance and discrimination based on religion or belief, which, in turn, is defined as any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on equal basis (UN General Assembly 1981, art. 2). Another relevant contribution of the Declaration is the call for states to take effective measures to prevent and eliminate existing forms of this discrimination. As Ghanea (2008, 307) notes, however, the real added value of this soft law instrument is that it offers a non-exhaustive list of the scope of freedom of thought, conscience and religion or belief, that ranges from the right to worship or assemble in connection with a religion, to the freedom of teaching a religion or belief in places suitable for these purposes and of training, appointing, electing or designating by succession appropriate leaders called for by the requirements and standards of any religion or belief. Despite this major effort to give a broad and inclusive framework to protect religious rights both individually and collectively, including the establishment of non-discrimination and equality as key principles, the Declaration does not make explicit mention of religious minorities (see on this point, Forum on minority issues 2013a). A crucial contribution to the clarification of the scope of the main concepts embedded in this right is given by the Human Rights Committee s General Comment No. 22 on art. 18 ICCPR. Indeed, 4

as Taylor (2005, 14) notes, the Committee s function in reviewing state reports about the implementation of ICCPR provisions and formulating general comments makes it a particularly important supervisory tool, which provides a great measure of continuity and uniformity in the treatment of particular issues. According to the CCPR s authoritative interpretation of this provision, the right to freedom of thought, conscience and religion is far-reaching and profound and protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief (CCPR 1993, para. 2). The Committee also makes clear that art. 18 ICCPR does not permit any limitations to these freedoms stressing that they are protected unconditionally. Another contribution of this General Comment in clarifying the scope of this right comes from the expression of concern of the Committee for the trends of discriminating against any religion for any reason, including the fact that they are newly established or represent religious minorities (idem). The Committee, therefore, makes an important addition to what was set out in the Declaration, which is particularly relevant for the scope of this paper: it establishes an explicit link between the respect of freedom of religion or belief of all individuals and the specific problems connected to the human rights of religious minorities, especially in contexts where a state religion is formally established. This is why it is also particularly relevant to consider the provision on minority rights in the ICCPR and its interpretation by the Committee. Article 27 ICCPR states that in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Differently from the provisions on freedom of religion or belief, which apply to all unconditionally and, in principle, can be enjoyed either individually or in community with others, the specific rights of minorities are intended as individual rights which apply to those persons who share with others a culture or a religion or a language. In 1992, nine years after the Declaration on discrimination on religion or belief, the UNGA adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (A/RES/47/135). As noted by the IE/SR, this Declaration goes much further in its scope than just establishing the responsibility of States to ensure the protection of minorities identity, in that it elaborates positive requirements for the protection of their rights (General Assembly 2013, para. 31). Examples include obligations for States to provide to those belonging to a minority with opportunities to learn or have instructions in their mother tongue, to take measures in the field of education also with a view to allow minorities to gain 5

knowledge of the society as a whole, and to plan and implement national policies and plans with due regard for the legitimate interest of persons belonging to minorities. Positive measures of protection are needed, because although the rights protected in art. 27 are set out as individual rights, they depend on the ability of a minority group to maintain its culture, language and religion which in many contexts need State action (CCPR 1994, para. 6.2). As the Forum on Minority Issues stresses (2013a, para 9), in making these and other rights explicit, the Declaration on minorities thus complements and goes beyond freedom of religion and religious identity. General Comment No. 23 by the Human Rights Committee further contributes to explaining the scope of application of minority rights as set out in art.27 ICCPR. In particular, also with a view to avoid confusion and misunderstandings with State parties in their reporting activities, the Committee draws a specific distinction between the rights of minorities, on the one hand, and other rights protected under this Covenant, notably the non-discrimination guarantees established in art. 2. As the Committee makes clear, the entitlement to enjoy the rights under the Covenant without discrimination applies to all individuals within the territory or under the jurisdiction of the State whether or not those persons belong to a minority (CCPR 1994, para. 4), while the persons designed to be protected by art. 27 are those who belong to a group and who share in common a culture, a religion and/or a language, without being necessarily citizens of the State party. Minority rights are thus conceived as a group of special rights to be enjoyed in addition to existing rights as a means of ensuring substantive equality for a specific category of rights holders (Ghanea 2012, 59). 1.2 Interpretation of the intersection by HRMM As discussed in the previous paragraphs, existing international human rights standards provide a broad and inclusive protection for all individuals against discrimination on the basis of their religion, belief or lack thereof. Minority rights, on their part, add specific provisions and measures which protect the collective aspects of individual rights (Ghanea 2008). This means that, when the focus is placed specifically on religious minorities, minority rights protect and enhance, inter alia, the collective aspects of both freedom of religion or belief, and non-discrimination on the basis of religion and religious identity. Thus, in principle, the standards developed over time within the UN framework around these two families of rights offer different layers of protection concerning the human rights associated to religion or belief which, moreover, would help complement some of their main gaps and controversial areas. 6

However, in practice, the protection of these rights has for long been characterised by separation and, to some extent, mutual neglect. In particular, as some experts have acknowledged, although the roots of minority rights are in large part to be found in the protection of religious minorities (Ghanea 2012, 58), since the establishment of the UN in 1945 the main focus of consideration when it comes to implementation of international minority rights standards has been more on national, ethnic and linguistic minorities than on religious minorities (OHCHR 2012). In the meanwhile (and beyond), as UN experts themselves acknowledge, persons belonging to religious minorities have been approached largely from the point of view of non-discrimination and freedom of religion by both States and HRMM (OHCHR 2012; General Assembly 2013, 6). On their part, however, these standards have been normatively underdeveloped in comparison to many other human rights provisions (Evans 2015, 28). Moreover, as already mentioned, religious minorities were not explicitly considered in the 1981 Declaration, while a feeble link between the need to protect their rights was established by the Human Rights Committee in the early 1990s when it listed the fact of being part of a religious minority among the worrisome causes for discrimination on the basis of religion or belief (HRC 1993a). This lack of development, coordination and intersection between standards resulted in a controversial and to a large extent unsatisfactory protection of the human rights of people belonging to religious minorities. This outcome also brought to scholars calls for a minority-based approach to address these (Ghanea 2012; Pretorious 2012), specifically on the assumption that freedom of religion or belief standards alone make no mention of being directed towards the survival and continued development of religious minorities (Ghanea 2008, 312). The UN has eventually collected these inputs and put them into practice using as launching pad the 30th anniversary of the 1992 Declaration on minority issues. The preparations for the celebration of this event in 2012, indeed, witnessed an in-depth and concerted commitment by HRMM, experts and scholars to develop ways to address human rights concerns of religious minorities through a combination of the provisions relating to non-discrimination and freedom of religion together with minority rights standards. This was also a response to the above mentioned Human Rights Council s resolution 16/18 which set the protection of the rights of religious minorities as a primary responsibility of States in their efforts to promote freedom of religion or belief. Thus, after years of focus on the national, ethnic and linguistic dimensions, the religious component took centre stage in the UN human rights machinery s concern on the protection of minorities. For instance, under the auspices of the Austrian Government, the Office of the High Commissioner for Human Rights (OHCHR) organised in 7

2012 a major expert seminar on Enhancing the effectiveness of international regional and national human rights mechanisms in protecting and promoting the rights of religious minorities. While earlier criticised for the lack of serious consideration of the matter of religious minorities. The UN IE/SR on minority issues, Rita Izsák, devoted the biennium 2012-2014 to the rights and security of religions minorities as a thematic priority, and produced a report to the General Assembly on this specific matter. The same focus was chosen as the subject of the sixth session of the Forum on Minority Issues (held in November 2013), which was tasked to go beyond the freedom of religion or belief in guaranteeing the rights of religious minorities (see Human Rights Council 2013a). A significant contribution to the overall task of the Forum in its sixth session was given by the UN SR on freedom of religion or belief, Heiner Bielefeldt, especially on the basis of his previous work on the matter, which had resulted in focusing its annual thematic report on the human rights of religious minorities. In particular, in his effort of clarifying what he defined as a series of conceptual misunderstandings and misperceptions on the issue (whose overcoming was presented not merely as an academic endeavour but having also practical relevance), the SR brought an important complement to the work made by various monitoring mechanisms specialised on minorities by stressing the centrality of adopting a human rights perspective to consistently protect those belonging to those groups (Human Rights Council 2012b, para. 16). The main concern of the SR on freedom of religion or belief on this matter was that of overcoming the risks connected to the frequent trend of associating minority issues with concepts of minority protection that emerged in the past outside the human rights framework which, substantially, tend to protect only the members of certain predefined groups, normally on the basis of a State decision based on the closeness of this minority to the majority or to State religion. According to the SR, in contrast, the rights of persons belonging to religious minorities as established in the context of international human rights law, share all the characteristics of the human rights approach based on the principles of universality, freedom and equality (ibidem, para. 20). From this perspective, the rights of persons belonging to these minorities are not anti-universalistic principles reserved to the members of certain predefined groups, but rather all persons de facto living in the situation of a religious and belief minority should be able to fully enjoy their human rights on the basis of non-discrimination and benefit from measures which they may need to develop their individual and communitarian identities (ibidem, para. 33). 8

The above considerations were welcomed as an excellent contribution by the IE/SR on minority issues in her 2013 report to the General Assembly which devoted the main thematic focus to the protection and promotion of the rights of religious minorities. In particular her work was presented as both complementary and supplementary to the SR on freedom of religion or belief s report on the same issue. In it, indeed, the IE/SR stresses that a minority rights-based approach to the protection of the rights of religious minorities is an obligation of all States (UN General Assembly 2013, para. 34), but also underlines that the scope of both minority rights and freedom of religion or belief is wide and inclusive and that both standards, as set out in ICCPR provisions, interpreted by the respective Human Rights Committee s general comments and deepened and specified by the related Declarations, call upon States to seek to allow for and actively facilitate the adequate functioning of religious minorities in all their related activities (ibidem, paras. 35-40). These reflections have led experts gathered under UN auspices to share an understanding of the term religious minorities as encompassing a broad range of religious or belief communities, traditional and non-traditional, whether recognised by the State or not, including more recently established faith or belief groups, large and small communities which seek protection of their rights under minority rights standards (Forum on minority issues 2013a, para. 12; see also UN General Assembly 2013, para. 26; Human Rights Council 2012b, para. 58). Clearly as diversity does exist also within religious minority groups, the rights of every single member of such minority groups must be fully respected as well. On this basis, States are strongly recommended, not only to fully comply with the standards on minority issues, but also with those on freedom of religion or belief giving specific attention to the issues of particular concerns to religious minorities who may experience discrimination, marginalization and stigmatisation and who may require greater attention (Human Rights Council 2013a, paras. 17-18). In particular, as the SR notes, the measures employed to promote the identity of a specific religious minority always presuppose respect for the freedom of religion or belief of all of its members. Thus, the question of how they wish to exercise their human rights remains the personal decision of each individual (Human Rights Council 2012b, para. 60). An analysis of how this relation plays out in practice is provided in Part 2 of this paper. This multi-perspective debate on the need to have an integrated approach to the application of existing standards on freedom of religion or belief and on minority rights to the protection and promotion of the human rights of those belonging to religious minorities has developed about two 9

decades after the interpretation on the scope of these rights provided by the CCPR in its General Comments. In this perspective, one could observe that, in fact, Human Rights Council s Special Procedures - including the referred SR on freedom of religion or belief and the IE/SR on minority issues - have different bases of accountability than the CCPR (Taylor 2005) and, also different opportunities to affect the overall understanding, interpretation and implementation of the rights under discussion in this paper as well as of their now recommended interrelations. Indeed, it is more often the case that SP refer to the CCPR than vice-versa. At the same time, however, one should not forget that the reports prepared by SP are particularly suitable as subsidiary means for the determination of rules of law, since mandate-holders essentially document the opinio iuris of governments by reproducing the correspondence with them and because Special Rapporteurs evaluate the state practice by undertaking country visits and by processing information from non-governmental organizations (Wiener 2015, 79). From this perspective, then, nothing prevents the experts within the Human Rights Committee to refer, use and absorb the work made by their fellow experts involved in Special Procedures within their work of monitoring and interpretation of religious rights. This notwithstanding, it is also the case that the outcome of this debate and the relevance of the recommendations that emerged in the early 2010s will only fulfil their potential when they are translated into action on the ground, as the IE/SR herself acknowledged during the Forum on minority issues (Human Rights Council 2013b). It is therefore to such action on the ground that the paper now turns its attention in order to offer an empirical overview of monitoring mechanisms recommendations related to freedoms and rights of religious minorities around the world. Part 2 - How the complexity plays out in reality Given the above-mentioned complexity, it comes as little surprise that implementation of freedom of religion or belief as well as rights of religious minorities varies a great deal: from full endorsement to reluctant accommodation to formal rejection (Bielefeldt, Ghanea and Wiener 2016, 2). In addition, such variance in implementation affects the enjoyment of other rights and therefore confirms multiple risks of intersectional violations. A brief overview of the range of rights and freedoms that are upheld or breached in relation to freedom of religion or belief and religious minorities rights around the world will illustrate challenges and opportunities. 10

2.1 Freedoms and rights of religious minorities in different parts of the world Freedom of religion or belief is a multifaceted and pervasive right that covers all aspects of life, both public and private, in all dimensions, from personal to communitarian faith, from subjective to structural aspects of religious life (ibidem, 21). As clarified in the 1981 Declaration, the scope of this right includes, among others: the freedom to express privately and publicly convictions and beliefs; the freedom to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; the right to create and support religious organisations; the right of parents to educate their children in accordance with their own moral and religious convictions (UN General Assembly 1981, artt.1, 5, 6). Such positive rights have a correlated negative side: the freedom not to profess any religion or belief; the freedom not to worship, either alone or in community; the freedom not to organize in religious communities; the freedom of parents not to impose a religious education to their children. Accordingly, corresponding violations have also been identified. For instance, the list published by the IE/SR in 2013, referring to communication reports of Special Procedures in relation to 22 States from all regions, includes: limits on, and the denial of, registration; [ ] prohibiting religious activity and restrictions on the right to assemble, worship and practice; forced re-education and the denial of access to education; arrest, arbitrary detention, imprisonment and prosecution of conscientious objectors [ ] (UN General Assembly 2013, para. 11). The SR on freedom of religion or belief also alerts to systematic discrimination in various sectors of society, such as educational institutions, the labour market, the housing market or the health-care system for persons belonging to religious minorities (A/HRC/22/51, para. 44). Looking at the recommendations of the HRMM mentioned in Part 1 of this paper on some of the above-mentioned aspects and violations of freedom of religion or belief and religious minorities rights can help identify a series of patterns that, in turn, can be grouped as examples of either synergy or tension between the two families of rights. 11

2.1.1 Examples of synergy a) Right to education according to moral and religious convictions If the Human Rights Committee has been very clear in its General Comment No. 22 highlighting that public education that includes instruction in a particular religion or belief is inconsistent with article 18 (4) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians (CCPR 1993, para. 6), States are still lagging behind with their follow-up on this matter. Ireland, for instance, was reproached for the slow progress in increasing access to secular education through the establishment of non-denominational schools, divestment of the patronage of schools and the phasing out of integrated religious curricula in schools accommodating minority faith or non-faith children (CCPR 2014, para. 21). Indonesia, in its turn, has included religion as a compulsory subject in school curricula, but with the aggravation that school-children have neither the choice to decide what religious education to follow, neither the option to avoid religious teaching altogether (CCPR 2013, para. 26). In both cases the Committee underlined that measures should be taken so that there are diverse school types and curriculum options available throughout the State party to meet the needs of minority faith or non-faith children (CCPR 2014, para. 21 and see similar language in CCPR 2013, para. 26). In so doing, it reaffirmed the principle that the right to freedom of thought, conscience and religion implies not only the freedom to accept and follow particular religions or beliefs but also the right to reject them and that education curricula should be reviewed so that religious diversity is promoted and the rights of both believers and non-believers are taken into account (idem). While the focus here is on freedom of religion or belief, it is evident that a similar reasoning can apply if one looks at the same issue from the point of view of the rights of religious minorities. The IE/SR on minority issue herself stressed the point of recognising in a non-discriminatory manner education rights for persons belonging to religious minorities and added that with regard to the right to manifest religion in schools or educational institutions, forums for continuous dialogue should be developed between members of religious minorities and educational institutions that serve them with the view to better understanding and accommodating their religious needs within schools (Izsák 2013, 4, emphasis added). 12

In this sense, one can therefore highlight the complementary nature of the recommendations of the monitoring mechanisms on both families of rights and freedoms in this area. Moreover, these examples on a specific aspect of the right to education also show how different HRMM acknowledge and defend the fact that when it comes to freedom of religion or belief or rights of religious minorities, the full spectrum of rights (civil and political but also economic, social and cultural) must be respected, protected and fulfilled. Including the perspective of minority rights in these cases helps reinforce the shift to a broader view and, as stressed by Ghanea, ensure that persons belonging to religious minorities should not only fully enjoy freedom of religion or belief but also have full access to all human rights including minority rights (Human Rights Council, 2013b, 4). b) The right to create and support religious organisations As indicated above, being able to decide and act on the creation, registration and support of religious organisations is part and parcel of the right to freedom of religion or belief. However, here as well, practices of implementation differ, especially in terms of gravity of restrictions. More importantly, here as well, the issue becomes relevant for a comparative analysis of different monitoring mechanisms. For instance, in her report on her visit to Cameroon, the IE/SR stated that Pentecostal Church leaders pointed out that many churches had not received authorization to function even though they had fulfilled all the requirements, and were therefore forced to function without legal status (Human Rights Council 2014, para. 65). Regretting such a situation, she followed up by recommending that registration processes, where required, to grant authorization to function should be nondiscriminatory, and clear criteria and time frames should be established and respected in practice. No undue delays or restrictive criteria should be imposed and, where authorization is not granted, clear reasons should be stated and appeals permitted (ibidem, para. 91). This confirms that States should protect the right to freely practice for all religious groups, including religious minorities, and refrain from any undue restriction. This approach is again very similar to that of the SR on freedom of religion or belief. The report on Tajikistan highlighted how some local authorities have allegedly tried to use the registration process to hinder the activities of religious minorities, such as the Jehovah s Witnesses, and how for their registration, small religious groups might ultimately depend on obtaining the approval and signatures of people from different faiths (Human Rights Council 2007b, paras. 32-33). Reiterating 13

that registration should not be a precondition for practising one s religion, although it is appropriate to require registration for the acquisition of a legal personality and related benefits, the SR then recommended that registration procedures should be easy and quick and not depend on extensive formal requirements in terms of the number of members or the length of time a particular religious group has existed. Furthermore, registration should not depend on reviews of the substantive content of the belief, the structure and the clergy. Finally, no religious group should be empowered to decide on the registration of another religious group (ibidem, para. 52). This underlines how, regardless of whether one looks at religious minorities and their rights or at freedom of religion or belief, the conclusions are similar, involving a deeper understanding of these issues from a non-discriminatory view. If one needed further evidence, it suffices to look at yet another monitoring mechanism and consider the opposite end of the spectrum. Indeed, the Human Rights Committee reached a comparable conclusion during its review of Denmark even if it tackled support of religious organisations from another angle. Referring to the direct support given by the State to the established church of the majority of the population, the Committee, too, defended the right to support religious organisations without any discrimination. After having noted with concern that the direct financial support that the Evangelical Lutheran Church receives from the State, and the administrative functions entrusted to it, such as civil status registration and the management of burial grounds, could lead to discrimination against other religious groups, it recommended Denmark to take steps to ensure equal enjoyment of the right of freedom of religion or belief and ensure that its legislation and practices are in full conformity with article 18 of the Covenant (CCPR 2008, para. 12). Similarities and differences notwithstanding, these three examples strengthen the view that international standards complement each other and HRMM can, do and should build further on such synergy. c) The issue of self-identification The Human Rights Committee has been at the forefront of highlighting the relevance and fundamental importance of the principle of self-identification in the protection from discrimination on the basis of religion or belief. Identifying a person or a group on the basis of their own selfunderstanding of an issue is a cornerstone of the human rights framework which places agency of the rights-holder at its core. In the area of religion or belief, like for other rights, this presupposes the recognition of freedom of choice for individuals and respect for their decision about how to exercise their rights. This is why in the inclusive approach delineated in General Comment No. 23, the Human 14

Rights Committee clarified that the existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria (CCPR 1994, para. 5.2). Once we combine this approach with the principle that application of art. 18 must not be limited to traditional or established religions (CCPR 1993, para. 2), it is clear that the right of individuals to self-identify as belonging to a religious minority extends to many and diverse options and must be respected in this light. The same issue has been more recently taken up with similar vigour by both Special Procedures with regard to both the rights of religious minorities and freedom of religion or belief. The IE/SR, for example, frames it within the four pillars of minority concerns (protection of existence, protection and promotion of identity, non-discrimination and equality, and participation in public life) to underline that a full picture of the religious and belief diversity relies primarily on self-identification by concerned persons. It should include all religions, not only those listed in the constitution, specified in a closed list by the Government, or recognized by the theology or ideology to which the State associates itself (UN General Assembly 2013, paras. 41-42). The SR, instead, looks at this principle from the point of view of measures to be taken to promote the identity of religious minorities and specifies that the State has the obligation to create favourable conditions for persons belonging to religious minorities to ensure that they can take their faith-related affairs in their own hands in order to preserve and further develop their religious community life and identity (UN General Assembly 2012, para. 24). From the point of view of the HRMM considered here, therefore, there is a clear direction and complementarity in answering to violations of both sets of rights in terms of self-identification. However, in this area, too, implementation is far from being fully in line with international standards and recommendations, as demonstrated by a couple of examples from the monitoring mechanisms under study. Both the CCPR and the SR visited Cyprus on different occasions, but reached similar conclusions when they dealt with the question of self-identification of religious minorities. The Committee first expressed its concern that Cyprus still recognizes only religious groups with a specific membership at the time of the entry into force of the 1960 Constitution and therefore excludes certain religious groups from the principle of self-identification and then added another concern that the 2011 census did not effectively implement the principle of self-identification (CCPR 2015, para. 24). The Committee s observation that the State party should adopt the legal measures necessary to ensure that 15

all religious communities enjoy equal recognition (idem) echoes the SR s recommendation to all stakeholders (the Government, the de facto authorities in the North, civil society, religious leaders, international actors and media) to ensure that there are no human rights protection gaps and that all persons can effectively enjoy their fundamental rights, including freedom of religion or belief, wherever they live (Human Rights Council 2012c, para. 73). On a more positive note, the case of Paraguay exemplifies a fairly successful transition from the concept of a State religion to that of secular State, thus improving on the assurance that selfidentification is respected and protected. During his visit to the country, the SR noted this positive development: the State does not directly or indirectly indoctrinate people in questions of religion or belief, nor does it impose undue restrictions on public manifestations of different religious and nonreligious convictions. This positive assessment was also shared by interlocutors from religious or belief minorities, including people with non-religious convictions (Human Rights Council 2012d, para. 24). The shift from State religion to secular State occurred with the 1992 Constitution and is a testament to the fact that the State no longer identifies itself with one religion at the expense of equal treatment of members of other denominations (ibidem, para. 23), precisely in line with the principle of selfidentification as seen above and as shared by the IE/SR, too. Such progress notwithstanding, issues concerning some limits to the exercise of one s own religion or belief (different from Catholicism) persist in Paraguay, especially in the context of public institutions such as the police, military, and public schools. The SR regrets, for instance, that members of the police or the military may feel under pressure to participate in ceremonies based on a religion that is not their own (ibidem, para. 29). In this light he reiterated that freedom of religion or belief also includes the negative right not to be pressured, especially by the State or in State institutions, to participate in religious practices (ibidem, para. 31). Similar problems exist in the school system which, despite having moved to a more open approach, is for some still largely based, de facto, on Catholicism. Here as well the SR invokes the principle of self-identity reiterating that taking the self-understanding of different religions and beliefs into account by inviting representatives of respective groups to participate in the processes of drafting curricula and establishing teaching material could be one way to overcome stereotypical ascriptions (ibidem, para. 38). Whether still problematic or on the way towards improvements, the above examples are pertinent illustrations of the need to acknowledge complexities and work in unison to improve public awareness of the promotion and protection of the identity of religious minorities. 16

d) The freedom to have or adopt a religion or belief Violations of the human rights of religious minorities may also derive from the use of prejudices to support political purposes such as national unity. A case in point is that of the Maldives where, according to the SR, national unity is often conflated with religious unity, which in turn risks of being understood as religious homogeneity (Human Rights Council 2007a, para. 31). Such an approach has an evident impact on the freedom to have or adopt a religion: the threat of being punished under criminal law provisions because of belonging to a religion that is different from the one endorsed by the State to symbolize unity may hamper or restrict freedom of choice. Moreover, the fact that almost all Maldivians are Muslim does not detract from obligations to respect and protect the rights of non- Muslims, as the freedom to have or to adopt a religion or belief cannot be limited or restricted under any circumstances (ibidem, paras. 31-32). This is why the SR is disturbed by provisions of the Law on Religious Unity, which criminalize any action or form of expression intended to disrupt, jeopardize or disunite social and religious order and harmony, and considers that the law has the potential to limit the manner in which people choose to manifest their religion or belief (ibidem, para. 63). In the Maldives, cases of individuals who are prevented, either by legislation or by social pressure, to manifest their religion or beliefs (different from Islam) are of utmost concern. Equally, cases of Maldivian Muslim women who are pressured to wear the veil in public may amount to violations of their freedom to manifest their religion as they wish. In this light, it is interesting to compare this type of analysis with the issue of wearing conspicuous religious symbols in public schools. The case in point this time is France and in particular the recommendations on the matter issued by the IE/SR. After recalling the wider debate regarding religious symbols in French schools and that caution must be exercised in legislation and policy that, irrespective of neutral intent, impact disproportionately on those faiths for which external, visible symbols or clothing are considered important tenets of faith, including Muslims, Orthodox Jews and Sikhs (Human Rights Council 2008, para. 68), she concludes by supporting the Special Rapporteur s recommendation that the Government should closely monitor the way that education institutions are implementing the law and adopt a flexible implementation of the law which would accommodate schoolchildren for whom the display of religious symbols constitutes an essential and freely chosen element of their faith (ibidem, para. 94). The reference to another HRMM reinforces the point made in Part 1 about the need for an integrated approach and interrelatedness of rights protection. But the above cases also reflect the main 17

shared preoccupation to respect non-discrimination and to ensure that any possible limitation to the enjoyment of the rights and freedoms of religion or belief, whether individual or collective, is justified and prescribed by law. In particular, it is important to highlight that, as indicated by the IE/SR on minority issues, international human rights law needs to reclaim the full equality of religious minorities and not concede their human rights as part and parcel of particular power or demographic relations (UN General Assembly 2013, para.17). 2.1.2 Examples of tension The freedom to choose a religion or belief: coercion and conversion Linked to the issue of self-identification and the freedom to have or adopt a religion, but also to a tension between the two families of rights, is the question of being compelled to reveal one s religion or belief. While coercion is prohibited under the framework of freedom of religion or belief, it is not specifically foreseen within minority rights. Once again, some examples from the practice of monitoring mechanisms will illustrate such tension. According to the Human Rights Committee, the freedom to have or to adopt a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one s current religion or belief with another or to adopt atheistic views (CCPR GC No. 22, para. 5). Conversion is part of this definition and can bring along unintended consequences that may amount to human rights violations. Japan, for example, has raised the Human Rights Committee s concerns at reports of abductions and forced confinement of converts to new religious movements by members of their families in an effort to de-convert them (CCPR/C/JPN/CO/6, 2014, para. 21). This being contrary to a number of provisions in the ICCPR (among which one can certainly recognize art. 18), has prompted the Committee s recommendation that Japan should take effective measures to guarantee the right of every person not to be subject to coercion that would impair his or her freedom to have or to adopt a religion or belief (idem). Moving to another monitoring mechanism and another country, one can find a parallel regarding the UK. Here the SR was concerned about the situation of converts who face problems with the community of their former religion. Even though some religious believers seem to accept a conversion only when it involves a change into their own religion such an approach does not acknowledge diversity and infringes on freedom of religion or belief (A/HRC/7/10/Add.3, 2008, para. 78). In a 18

different region, but always on the issue of conversion, Lao People s Democratic Republic came under scrutiny by the same SR for a number of serious allegations that members of the Christian community were coerced by local authorities into renouncing their faith in order to preserve the harmony and unity of society (A/HRC/13/40/Add.4, 2007, para. 40). Consequences of such coercion included evictions, arrests, harassment, denial of access to public schools. In her recommendations, signalling harmonization of action, the SR referred directly to the Human Rights Committee stressing how it emphasizes that article 18, paragraph 2, of the International Covenant on Civil and Political Rights bars coercion that would impair the right to have or adopt a religion or belief [ ] (idem). All these examples indicate attention by some HRMM to a specific component of one s identity that should not be forcibly revealed. On the other hand, it is easy to imagine how the same component, taken from the perspective of minority rights, would reinforce the exercise of human rights by religious minorities only if revealed. Minority rights can be exercised on the basis of self-identification and professed belonging to a minority. Persons belonging to a religious minority are therefore compelled to indicate their religious identity if they are to benefit from minority rights. Thus, herein rests the problem: a tension arises between the need to identify minorities if they are to be protected and the religious freedom right of not being forced to reveal one s religion or belief (Ghanea 2008, 306). The result of this tension may come at a cost for the persons involved but a possible solution rests in the voluntary nature of self-identification, an aspect that has been acknowledged also by the IE/SR on minority issues: compelling people to identify religion or belief on official documents undermines the explicit assertion developed by the United Nations Human Rights Committee that no one can be compelled to reveal his thoughts or adherence to a religion or belief (A/68/268, 2013, para62). As this case shows, even when some tension may arise, falling back on the basic standards adopted on freedom of religion or belief proves to be the safest option also for the protection of the rights of religious minorities. Conclusions The comparative analysis of the interpretation by HRMM of human rights provisions related to freedom of religion or belief and the rights of religious minorities and the empirical overview of observations and recommendation stemming from the monitoring process have highlighted that the scope of the two families of rights is wide and inclusive. It is also complementary and of reciprocal 19