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Documents Articles Please note that this article has been divided into three parts. Part 1: Proselytism
and the Freedom to Change Religion in International Human Rights Law * Lecturer, Columbia Law School; Associate, Cleary, Gottlieb, Steen & Hamilton; J.D., Columbia Law School, 1995. Much of the work on this article was done in conjunction with the Religion, Human Rights, and Religious Freedom Program, a program of the Columbia Law School and the Center for the Study of Human Rights. The author would like to thank The Pew Charitable Trusts for their support of his work and the Columbia program, as well as Dean Michael Young, Professor Louis Henkin and Dr. J. Paul Martin for their trust, encouragement, and inspiration. The author would also like to thank Wendy Rhein for her invaluable research and editorial assistance, and the entire staff at the Center for the Study of Human Rights for their assistance. This article is dedicated to all those who, in good faith and consistent with the principles of international human rights law, are seeking to resolve the conflicts that arise over proselytism and the freedom to change religion. SUMMARY: ... Proselytism is one form of expression that has resulted in inevitable, and sometimes fierce, conflict. But on Justice Frankfurter's terms, proselytism - whether it is viewed as an exercise of free expression or a manifestation of religious belief - is not in itself the problem. ... Before examining the various rights and interests that may determine the propriety of a restriction on proselytism, it is necessary to consider certain issues particular to indirect restrictions on proselytism and the manner in which restrictions on proselytism may lead to discrimination on the basis of religion or belief. ... For instance, the failure of a religious group to be registered with, or be recognized by, the state as a prerequisite to functioning as an organizational entity can result in a restriction on proselytism. ... Article 26 of the ICCPR obligates states to provide for the equal protection of the law and "equal and effective protection against discrimination on any ground." ... In Kokkinakis v. Greece, Greece successfully argued to the Euro pean Court that a restriction on proselytism can, in theory, be sustained as an effort to protect the right of the target to the peaceful enjoyment of their freedom of religion. ... On the other hand, proselytism in the home of an unwilling target may be subject to greater restriction. ... TEXT:[*252] I. Introduction - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1. Niemotko v. Maryland, 340 U.S. 268, 275 (1951) (Frankfurter, J., concurring). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*253] The difficulty of this "adjustment" is deepened by a number of factors. Persons who proselytize, whether as a matter of conscience or religious belief, may adhere to their entitlement to do so with great strength. Likewise, the targets of proselytism may hold their religious beliefs (or their sense of privacy in those beliefs) with equal strength; attempts to persuade them in matters of religious belief may lead to injury to religious feelings. Finally, religious groups, desiring to preserve or expand their numbers, may have strong views as to the terms on which persons may change their religious identity or affiliation. This may influence the groups' view on proselytism. Within the framework of international human rights law, states are responsible for sorting out these, and other, competing interests in formulating policies that adequately protect the rights of all involved. But states themselves exhibit different views on the necessity of regulating, or the wisdom of influencing, religious choices of their people. In some societies a change in religious beliefs may have far-reaching social ramifications, whereas in others, such a change will have only private impact. Inevitably, different state practices will be a reflection of more general societal considerations. It appears that the extent to which other rights and interests give way to the freedom to proselytize is indicative of the extent to which a society views itself as hospitable to change in the religious beliefs of its members, and considers an open (and consequently confrontational) exchange of different religious viewpoints to be acceptable, or even desirable. Given all of the variables at play, it is very difficult in the abstract to pose general solutions to the conflicts raised by proselytism. As Justice Frankfurter noted: "Courts can only hope to set limits and point the way. It falls to the lot of legislative bodies and administrative officials to find practical solutions within the frame of [court] decisions." n2 The same practical limitations constrain the application of international human rights standards. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2. Id. at 275-76. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The goal of this article is to explore in a variety of political and religious contexts the different rights and interests at issue when conflict arises over proselytism. States must consider these rights and interests in order to establish a decision- [*254] making framework consistent with the principles of international human rights law. This article concludes that certain state action restricting proselytism, either by employing discriminatory methods or in furtherance of interests not recognized in international instruments, is inconsistent with international standards. The validity of other restrictions will depend upon a variety of circumstantial variables primarily relating to the potential for coercion. These variables cannot be sorted out in any consistent way without resorting to the particulars of each case. Part II of this article addresses important preliminary issues including (a) the definition of proselytism as employed here, (b) a brief overview of the views of various religions on proselytism, and (c) a discussion of the different forms that restrictions on proselytism can take and the discrimination that may arise from such restrictions. Part III reviews the provisions in international human rights instruments most relevant to the issue of proselytism. These provisions pertain to the right to freedom of religion, the right to freedom of expression, the right to be free from discrimination on the basis of religion, and the rights of religious minorities to profess and practice their religion. Part IV outlines in detail the competing rights and interests that arise in conflicts over the freedom to engage in proselytism. These rights and interests include: (1) the rights of the source of the proselytism to manifest their religion and engage in free expression; (2) the rights of the target of the proselytism to change their religion, to receive information, to be protected from injury to their religious feelings and to maintain their religious identity; and (3) the interests of the State to protect the dominant religious tradition or official ideology and to preserve public order. Part V clarifies the different factors states have employed to draw the line between "proper" and "improper" proselytism. Four primary factors are identified: the characteristics of the source, the characteristics of the target, where the proselytism takes place, and the nature of the exchange between the source and the target. II. Preliminary Issues A. The Definition of Proselytism The term "proselytism" has been used so far without definition. In many contexts, it has had a decidedly negative connotation. Consider this definition of "proselyte" contained in a Catho [*255] lic dictionary: "A Gentile converted to Judaism, hence any convert from one religion to another. To proselytize, meaning to make converts, is generally used in a pejorative sense, either because one's own religion is the loser or as implying unscrupulous methods...." n3- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3. A Catholic Dictionary 408 (Donald Attwater ed., 2d rev. ed. 1954). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A more complete elaboration of the negative meaning that has been ascribed to proselytism is found in a study document entitled Common Witness and Proselytism, prepared in 1970 by a Joint Theological Commission between the Roman Catholic Church and the World Council of Churches. n4 This document defines the term "Christian witness" as "the continuous act by which a Christian or a Christian Community proclaims God's acts in history and seeks to reveal Christ as the true light which shines for every man." n5 In contrast, this document describes proselytism as a perversion of Christian witness: - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4. This document is reprinted in 23 Ecumenical Rev. 9 (1971) [hereinafter Common Witness and Proselytism]. n5. Id. P5. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Here is meant improper attitudes and behaviour in the practice of Christian witness. Proselytism embraces whatever violates the right of the human person, Christian or non-Christian, to be free from external coercion in religious matters, or whatever, in the proclamation of the Gospel, does not conform to the ways God draws free men to himself in response to his calls to serve in spirit and in truth. n6- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6. Id. P8. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -As used in this article, "proselytism" means expressive conduct undertaken with the purpose of trying to change the religious beliefs, affiliation, or identity of another. The person initiating the conduct is the "source," and the person on the receiving end is the "target." This definition of proselytism encompasses several important concepts. First, it avoids the notion of per se improper conduct; whether proselytism is improper ultimately depends on a variety of factors to be discussed below. The definition also stresses that proselytism is intentional conduct, undertaken with a particular goal in view. For this reason, the term "proselytization" is avoided, as that term can suggest a process, rather than a purposeful human action. Finally, this definition [*256] implies that the source need not have religious beliefs of their own. Thus, proselytism includes attempts to persuade the targets to abandon their current religious beliefs or affiliation without necessarily replacing them with those of the source. B. Religious Views on Proselytism Religions hold a wide variety of views on the propriety of proselytism. While one religion may require its adherents to attempt to bring others to the faith, such activity may be prohibited or even impossible for another. n7 Other religions adhere to the entire range of views in between. Furthermore, a religion may have a different view on being the source of proselytism, as opposed to being the target. n8 Likewise, views on proselytism [*257] may vary depending upon the religious identity of the target. For instance, a distinction may be drawn between targeting those of a different denomination within the same religion, and those of a different religion altogether. Given these divergent views, proselytism can raise problems of an intrareligious nature, as well as problems of interreligious relations and unity. The intricacies of theological disputes and intra or interreligious relations are outside of the scope of this study. n9 They are, however, relevant, as religious views inevitably influence state policies. One or two brief examples will help to illustrate the pertinent points to be made here.- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7. The following statement by the Evangelical Lutheran Church in America is an example of a mandatory call to engage in proselytism, here termed "evangelistic outreach": In Christ, God calls the church to share the gospel in word and deed, to proclaim the Good News of Jesus Christ, and to witness to God as Creator, Redeemer, and Sanctifier. "Go... and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything that I have commanded you." (Matthew 28:19,20) Answering the call of God to evangelistic outreach where Christ is not known, or not fully known, requires people to bear the message. The missionary calling is both general and specific: all Christians are called by God to mission wherever they are; some are additionally called by a local body of Christians to mission in another location. Division of Global Mission, Evangelical Lutheran Church in America, The Role of the Missionary in the Global Mission of the Evangelical Lutheran Church in America (visited Nov. 19, 1998) <http://www.elca.org/dgm/policy/role.html>.At the other end of the spectrum are societies where religious identity is closely allied to ethnic or national heritage, or where religious beliefs or practices are based on ancestor worship. The attempt to have another person adopt this type of religious affiliation may have no meaning as it would be impossible for an outsider to adopt such an identity or to engage in the required practices. For example, the religion of the Balinese is a mixture of elements of Hinduism and pre-Hindu native beliefs and is described in this fashion: "The Balinese live with their forefathers in a great family of the dead and the living, and it would be absurd for them to try to make converts of another nationality, since the ancestors of the converts would still remain of another race apart." Miguel Covarrubias, Island of Bali 261 (KPI Ltd. 1986) (1937). n8. This position may be directly related to a religion's view on conversion: While many religions or beliefs welcome - and in some cases even encourage - the conversion of individuals belonging to other faiths, they are reluctant to admit the conversion of individuals of their own faith; apostasy is viewed with disfavour by them and often is prohibited by their religious law or discouraged by social ostracism. Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, U.N. Doc. E/CN.4/Sub. 2/200/Rev. 1, U.N. Sales No. 60.XIV.2 (1960), [hereinafter Krishnaswami Study], reprinted in Religion And Human Rights: Basic Documents 2, 22 (Tad Stahnke & J. Paul Martin eds., 1998). n9. For a good review of views on proselytism as articulated in documents issued by Catholic, Protestant, and Orthodox Christian church bodies and associations, see Joel A. Nichols, Mission, Evangelism, and Proselytism in Christianity: Mainline Conceptions as Reflected in Church Documents, 12 Emory Int'l. L. Rev. 563 (1998). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -A significant feature of some religions is the belief that their path to the truth is an exclusive one. Inevitably, these groups are confronted with the reality that other people have different religious beliefs, or no religious beliefs at all. Such groups may respond in various ways. At the extreme, this confrontation has contributed to war, forced conversion, and fierce religious persecution throughout history. This type of response has been repudiated by most religions. n10 Instead, many religious groups direct activities at convincing targets to change their religious beliefs by choice. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n10. For example, the Catholic Church expressed the following at the
Second Vatican Council regarding relations with non-Christians: "The Church
therefore has this exhortation for her sons: prudently and lovingly, through
dialogue and collaboration with the followers of other religions, and
in witness of Christian faith and life, acknowledge, preserve, and promote
the spiritual and moral goods found among these men, as well as the values
in their society and culture." Declaration on the Relationship of the
Church to Non-Christian Religions, in The Documents of Vatican II 660,
662-63 (Walter M. Abbott & the Very Reverend Monsignor Joseph Gallagher
eds., 1966) (footnote omitted). In this context, some religions have developed theological principles or ethical rules regarding the appropriate treatment of those who do not share their religious beliefs. If a religious group is dominant in a state, that religion's principles or rules may influence official state policy concerning the treatment of those outside the dominant tradition. Laws concerning prosely [*258] tism between such groups must therefore be viewed in the context of these broader religious views. For example, Abdullahi Ahmed An-Na'im, a scholar of traditional Islamic law, has summarized the applicable rules in this fashion: (1) If a person chooses to become a Muslim, or is born and raised as a Muslim, then he or she will have full rights of citizenship in an Islamic state.... However, once a Muslim or officially classified as such, a person will be subject to the death penalty if he or she becomes an apostate, that is, one who persists in repudiating his or her faith in Islam....(2) If a person chooses to be or remain a Christian, Jew, or believer in another scriptural religion, as defined by Shari'a - one of ahl al-kitab, the People of the Book or believers in divine scripture who are called dhimmis - he or she will suffer certain limitations of rights as a subject of an Islamic state. Dhimmis are not supposed to enjoy complete legal equality with Muslims. (3) If a person is neither a Muslim nor one of ahl al-kitab, as defined by Shari'a, then that person is deemed to be an unbeliever (khafir or mushrik). An unbeliever is not permitted to reside permanently, or even temporarily according to stricter interpretations, in peace as a free person within the territory of an Islamic state except under special permission for safe conduct (aman). In theory, unbelievers should be offered the choice of adopting Islam, and if they reject it they may either be killed in battle, enslaved, or ransomed if captured. n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n11. Abdullahi Ahmed An-Na'im, Islamic Foundations of Religious Human Rights, in Religious Human Rights in Global Perspective: Religious Perspectives 352 (John Witte Jr. & Johan D. van der Vyver eds., 1996). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The traditional Islamic view on proselytism is clearly consistent with the above scheme: proselytism targeted at Muslims is prohibited, whereas aggressive proselytism by Muslims directed at nonbelievers is demanded. As certain modern States purport to apply principles following or based on traditional Islamic law, it is clear that those States cannot be indifferent to the religious choices of its people. Proselytism within a religion can precipitate conflict as intense as that between religions. It is therefore a significant issue with regard to ecumenism, or the path of Christian cooperation and unity. Churches that identify themselves as Christian have [*259] different views on the question of whether unity is possible or desirable. As a result, they may have different standards on the question of proselytism as between Christians. For example, if a church refuses to recognize that "other churches also... provide access to salvation in Christ," n12 then that church will make no distinction between its proselytism directed at other Christians and proselytism directed at non-Christians. However, if a church considers that at least some other churches provide access to salvation, a distinction may be made between proselytism towards these Christians and proselytism directed at non-Christians. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n12. Common Witness and Proselytism, supra note 4, P 11. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -It is this latter distinction that underlies the standards on proselytism expressed by the World Council of Churches and the Catholic Church in Common Witness and Proselytism. n13 Recalling the definitions of Christian witness and proselytism contained in that document and related above, Christians are reminded that "the Lord has called all his disciples to be witnesses to him and his Gospel, to the ends of the earth." n14 This witness, whether directed at other Christians or non-Christians, "should be completely conformed to the spirit of the Gospel, especially by respecting the other's right to religious freedom." n15 A number of requirements are stated in this regard, including the avoidance of "physical coercion, moral constraint or psychological pressure," n16 the "offer of temporal or material benefits," n17 the "exploitation of ... need [and] weakness," n18 and "unjust or uncharitable reference to the beliefs or practices of other religious communities." n19 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n13. Id. n14. Id. P1. n15. Id. P25. n16. Id. P27(a). n17. Id. P27(b). n18. Id. P27(c). n19. Id. P27(f). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Additional considerations apply to witness by members of one Christian church to those of another. Under these circumstances, witness "should be completely concerned to do nothing which could compromise the progress of ecumenical dialogue and action," n20 and should "be concerned in fostering whatever can restore or strengthen between [Christians] the bonds of true [*260] brotherhood." n21 In light of these principles, appropriate action towards other Christians is suggested as follows: - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n20. Id. P25. n21. Id. P28. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Missionary action should be carried out in an ecumenical spirit which takes into consideration the priority of the announcement of the Gospel to non-Christians. The missionary effort of one Church in an area or milieu where another Church is already at work depends on an honest answer to the question: what is the quality of the Christian message proclaimed by the Church already at work, and in what spirit is it being proclaimed and lived? Here frank discussion between the Churches concerned would be highly desirable, in order to have a clear understanding of each other's missionary and ecumenical convictions, and with the hope that it would help to determine the possibilities of cooperation, of common witness, of fraternal assistance, or of complete withdrawal. In the same manner and spirit the relations between minority and majority Churches should be considered. n22 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22. Id. P28(b) (footnote omitted). Even greater restrictions are suggested between the Orthodox churches and the Catholic Church, whereby all proselytism, as it is defined in this article, is prohibited: "Whatever has been the past, the Catholic Church and the Orthodox Church are determined to reject not only proselytism but also the intention even to draw the faithful of one Church to another." Id. P 28(e)(iii). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Although some groups may distinguish between opposing proselytism as a moral or ethical matter and calling on the state to prohibit it, states - democratic and otherwise - nonetheless tend to respond to religious views on proselytism. n23 These views, particularly those of the dominant religious group, may influence state policy. In order to adequately protect the rights of all, restrictions on proselytism must be given careful attention to determine if they are based solely on the consideration of religious views. Given the complexity in distinguishing between religious and secular considerations, this analysis may be difficult; but, it is no less essential for its difficulty. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n23. Some groups that oppose proselytism in any form likewise oppose any appeal to the civil authorities to silence other groups that engage in it. See Commission on Faith and Unity, Middle East Council of Churches, Proselytism, Sects, and Pastoral Challenges: A Study Document PP61-64 (1989) (prepared for the Middle East Council of Churches' General Assembly, July 1989), cited in David A. Kerr, Mission and Proselytism: A Middle East Perspective, 20 Int'l Bull. Missionary Res. 12, 18 (1996) (citing id.). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -As important as religious beliefs are to the individuals that hold them and to the societies of which they are a part, consider [*261] ations beyond those of a strictly religious character must guide a state's approach to proselytism. While international human rights instruments recognize the right to have religious beliefs and the freedom to act on them, these instruments also confirm that states can limit this freedom to act in order to ensure other specified interests. n24 Therefore, even the strongest religious imperative to engage in proselytism, such as a requirement to bring as many to the "true" religion as possible, cannot prevail over a valid limitation. This is the case even though those who believe they are entitled to engage in proselytism may be burdened, perhaps severely, in the manifestation of their religious beliefs. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n24. These interests are the protection of "public safety, order, health, or morals or the fundamental rights and freedoms of others." International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, art. 18(3), 999 U.N.T.S. 171, 6 I.L.M. 368, 383 [hereinafter ICCPR]; see also The European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 9(2), 312 U.N.T.S. 221, reprinted in International Law: Selected Documents at 464, 467-68 (Barry E. Carter & Phillip R. Trimble eds., 1995) [hereinafter European Convention]. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Conversely, a strictly religious basis for restricting proselytism is not by itself a valid limitation on the activity. Thus, a religious group's assessment of "the quality of the Christian message" n25 of a Church or a determination that proselytism weakens "the bonds of true [Christian] brotherhood" n26 would not give rise to a valid limitation on proselytism. As a result of this principle, members of some religions may be frustrated in the attempt to enforce what they believe to be appropriate standards of behavior. But by employing these principles, international human rights standards are directed at achieving a peaceful balance between the interests of those holding different religious views on proselytism, as well as the interests of those holding no religious beliefs. n27 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n25. Common Witness and Proselytism, supra note 4, P28(b). n26. Id. P28. n27. A certain measure of moderation on the part of religious groups is required to make this scheme work. A religious view that does not accept that under any circumstances other interests can be paramount to the freedom to proselytize is likely to give rise to consistent conflict and is not amenable to a process of conflict resolution. On the other hand, a religious view that no form of proselytism could ever be valid can lead to severe restrictions on, and even persecution of, other religious groups. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*262] C. Restrictions on Proselytism States can restrict proselytism in a variety of ways: directly or indirectly; intentionally or unintentionally. Before examining the various rights and interests that may determine the propriety of a restriction on proselytism, it is necessary to consider certain issues particular to indirect restrictions on proselytism and the manner in which restrictions on proselytism may lead to discrimination on the basis of religion or belief.1. Indirect restrictions In addition to laws that directly regulate proselytism, n28 there are a myriad of laws, rules and regulations that indirectly restrict proselytism. For instance, the failure of a religious group to be registered with, or be recognized by, the state as a prerequisite to functioning as an organizational entity can result in a restriction on proselytism. Moreover, activity that can be characterized as proselytism may take different forms, such as religious discussions; preaching; teaching; the publication, distribution or sale of printed and electronic works; broadcasting; solicitation of funds; or provision of humanitarian or social services. All of these actions can be proselytism depending upon the intent with which they are undertaken. Therefore, regulation of any of these activities may intentionally or unintentionally restrict proselytism.- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28. See infra Part IV. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Further, laws that do not have as their apparent purpose the prohibition of proselytism can nevertheless be employed in furtherance of that goal. For example, government officials may determine which religious views can be disseminated through the discretionary grant or denial of permits required for activities related to proselytism (such as distributing literature); or, officials can suppress such activity through means such as a tax or fee. These types of restrictions are manifest in the experience of the Jehovah's Witnesses in the United States during the first half of the twentieth century. Between 1937 and 1953, the United States Supreme Court examined a number of laws and regulations - mostly local municipal rules - that indirectly affected proselytism. A table of these cases is provided at the end of this article. [*263] These cases primarily involved Jehovah's Witnesses, who at that time engaged in a public and very confrontational style of proselytism that employed strong negative views about the government and other religious groups, particularly the Catholic Church. n29 For this and other reasons - including their steadfast refusal to salute the flag or to serve in the armed forces - the Witnesses were extremely unpopular. Substantial pressure was put on local authorities to suppress their activities or otherwise remove them from public places. n30 The Witnesses, however, were persistent in their proselytizing activities, in their willingness to disobey the law as applied to them and be arrested for it, and in their efforts to challenge their convictions as improper restrictions on the freedoms of free exercise of religion, speech, and the press guaranteed by the First Amendment to the United States Constitution. n31 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n29. See Douglas v. City of Jeanette, 319 U.S. 157, 170-74 (1943) (Jackson, J., dissenting). n30. See id. at 181 (Jackson, J., dissenting) ("Local authorities caught between offended householders and the drive of the Witnesses, have been hard put to keep the peace of their communities."). n31. The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. For a brief description of the Witnesses' persistence, see Table of United States Supreme Court Cases Concerning the Regulation of Proselytism (1937-1953) at the end of this article. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -The regulations at issue in the majority of these cases were similar in that they required the procurement of permission or a license (sometimes along with payment of a fee) from the local government authorities in order to pursue a variety of activities. n32 Many of these activities were directly expressive, such as distributing literature, soliciting contributions for charitable causes, holding outdoor meetings, having processions, or using sound amplification devices. Other activities could be described in a more commercial vein, such as selling or soliciting orders for books or other merchandise, or carrying on a trade. Some of the regulations specifically targeted those who went door-to-door to conduct these activities, whereas others restricted the activity in public places, such as on the street or in a park. n33 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n32. See Table of United States Supreme Court Cases Concerning the Regulation of Proselytism (1937-1953) at the end of this article. n33. For an overview of these regulations, see id. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*264] The Supreme Court found two primary problems in the course of invalidating these regulations as contrary to the constitutional guarantees of freedom of religion, of speech, and of the press. The first problem was the absence of objective standards to guide decision making in the granting of permits and licenses. In some cases, there were no standards at all. n34 This left local officials with unfettered discretion in the application of the rules. In other cases, the standards were overly vague or subjective; one challenged regulation, for example, required a determination of whether the cause for which a person was soliciting was a "religious" one, and whether it was "free from fraud." n35 These subjective standards likewise left to the discretion of local officials which ideas could be disseminated and which could not. The types of discretion identified in these cases could be employed to intimidate, harass and even silence those engaging in expression, including proselytism, simply because the local population or government found their message to be objectionable. The Court was also troubled by the fact that there were other, less restrictive, means to prevent the dangers, such as fraud, at which these subjective standards were directed. n36 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n34. See, e.g., Kunz v. New York, 340 U.S. 290 (1951) (involving a Baptist minister); Niemotko v. Maryland, 340 U.S.268 (1951); Saia v. New York, 334 U.S. 558 (1948); Marsh v. Alabama, 326 U.S. 501 (1946); Tucker v. Texas, 326 U.S. 517 (1946); Largent v. Texas, 318 U.S. 418 (1943); Lovell v. City of Griffin, 303 U.S. 444 (1938). n35. Schneider v. New Jersey, 308 U.S. 147, 157-58 (1939) (quoting ordinance of Irvington, New Jersey). n36. See, e.g., Schneider, 308 U.S. at 164. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -The second problem arose in situations where a license fee was charged for engaging in activities, such as selling or otherwise distributing literature, that encompassed the dissemination of ideas and opinions, including proselytism. No discretion was placed in the hands of the administrating officials in the application of these revenue-raising arrangements. n37 Furthermore, these arrangements fell clearly within the state's taxation power. Nevertheless, the Supreme Court prohibited their application to proselytism because it believed that the danger they [*265] posed to the freedoms protected by the First Amendment was too great to be tolerated: - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n37. The Court was deeply divided on the issue of licensing fees, and the matter was only settled after the Court reversed itself and overruled an earlier decision. See Murdock v. Pennsylvania, 319 U.S. 105 (1943); Jones v. Opelika, 316 U.S. 584 (1942) [hereinafter Jones I], vacated, 319 U.S. 103 (1943) [hereinafter Jones II]; see also Follett v. Town of McCormick, 321 U.S. 573 (1944) (holding license tax unconstitutional as applied to a professional minister). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -No one could doubt that taxation which may be freely laid upon activities not within the protection of the Bill of Rights could, when applied to the dissemination of ideas, be made the ready instrument for destruction of that right. Few would deny that a license tax laid specifically on the privilege of disseminating ideas would infringe the right of free speech. For one reason among others, if the State may tax the privilege it may fix the rate of tax and, through the tax, control or suppress the activity which it taxes.... .... ... The constitutional protection of the Bill of Rights is not to be evaded by classifying with business callings an activity whose sole purpose is the dissemination of ideas, and taxing it as business callings are taxed. .... The First Amendment is not confined to safeguarding freedom of speech and freedom of religion against discriminatory attempts to wipe them out. On the contrary, the Constitution, by virtue of the First and the Fourteenth Amendments, has put those freedoms in a preferred position. Their commands are not restricted to cases where the protected privilege is sought out for attack. They extend at least to every form of taxation which, because it is a condition of the exercise of the privilege, is capable of being used to control or suppress it. n38 These cases represent an impressive body of decisions giving concrete form to the human rights of unpopular minorities in the face of both government and popular opposition. Because the regulations in question gave too much power to public officials to impinge on the freedoms of religion, speech, and the press, the Supreme Court invalidated their application to proselytism even though they could have validly restricted other activities in furtherance of the normal range of police powers of the state, and did not single out any particular class of speech or speakers for inferior treatment. For the same reason, the Court prohibited taxes levied on the exercise of those freedoms. Finally, it should [*266] be noted that in these cases, the Supreme Court protected the freedom to proselytize even though at times the message and the manner in which it was delivered was intolerant, divisive and abusive, and could disturb the targets in their own religious feelings and in their tolerance of others:- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n38. Jones I, 316 U.S. at 607-08 (Stone, C.J., dissenting); see also Follett, 321 U.S. at 579 (Murphy, J., concurring) ("It is wise to remember that the taxing and licensing power is a dangerous and potent weapon which, in the hands of unscrupulous or bigoted men, could be used to suppress freedoms and destroy religion unless it is kept within appropriate bounds."). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Considerable emphasis is placed on the kind of literature which petitioners were distributing - its provocative, abusive, and ill-mannered character and the assault which it makes on our established churches and the cherished faiths of many of us. But those considerations are no justification for the license tax which the ordinance imposes. Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful. If that device were ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minority cherishes but which does not happen to be in favor. That would be a complete repudiation of the philosophy of the Bill of Rights. n39 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n39. Murdock, 319 U.S. at 115-16 (citation omitted); see also Martin v. City of Struthers, 319 U.S. 141, 157 (1943). Recent United States Supreme Court cases involving proselytism include Heffron v. Int'l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987); Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378 (1989); Int'l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); and Lee v. Int'l Society for Krishna Consciousness, Inc., 505 U.S. 830 (1992). Table of United States Supreme Court Cases Concerning the Regulation of Proselytism (1937-1953) at the end of this article further illustrates the range of regulations that swept proselytism under their purview and the variety of interests asserted by the states in these cases. - - - - -
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Examples of facial distinctions include the laws of certain Islamic countries that prohibit proselytism only where the target is a Muslim. n40 In other situations, a restriction may be placed on proselytism by a particular group. This type of restriction may accompany, or be an intended consequence of, a ban on the existence or limitations on the activities of that group in its organizational form. Examples of this type of restriction have included the Ahmadis in Pakistan, Baha'is in Iran, and Jehovah's Witnesses in Argentina, Singapore, Gabon and the Central African Republic. n41 Another type of facial distinction that is prevalent in restrictions on proselytism is regulation of the foreign, as opposed to native, source. n42 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n40. See, for example, the situation in Malaysia described in Part IV.C.1.a and accompanying notes. n41. See Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Commission on Human Rights, U.N. ESCOR, 52d Sess., Agenda Item 18 PP9, 13, 21, 41-44, U.N. Doc. E/CN.4/1996/95/Add.1 (1996) (Ahmadis in Pakistan) [hereinafter Special Rapporteur's Report 1996 Add. 1.]; Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N. Commission on Human Rights, 52d Sess., Agenda Item 18 PP55-70, U.N. Doc. E/CN.4/1996/95/Add.2 (1996) (Baha'is in Iran) [hereinafter Special Rapporteur's Report 1996 Add.2]; Report on the Situation of Human Rights in Argentina, Inter-America Commission on Human Rights, OEA/ser.LI/V/II.49. doc. 19 corr.1 (1980) at 251-55 (Jehovah's Witnesses in Argentina); Zaheeruddin v. State, 26 S.C.M.R. (Sup.Ct.) 1718 (1993) (Pak.) (Ahmadis in Pakistan); Chan Hiang Leng Colin v. Public Prosecutor [1995] 1 SLR 687 (Jehovah's Witnesses in Singapore); Chan Hiang Leng Colin v. Minister for Information and the Arts [1995] 3 SLR 644 (Jehovah's Witnesses in Singapore); U.S. Department of State, 104th Cong., 2d Sess., Country Reports on Human Rights Practices for 1995, at 47 (Jehovah's Witnesses in Central African Republic); id. at 98 (reporting restrictions on Jehovah's Witnesses in Gabon although they are not formally enforced). n42. See, for example, the situations in China and Ukraine described in Part IV.C.1.b-c and accompanying notes. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Facially neutral restrictions on proselytism more heavily impact religious groups that encourage, mandate, or frequently engage in proselytism than those groups that discourage, prohibit, or otherwise do not engage in proselytism. Similarly, facially neutral restrictions of proselytism may affect majority and minority religious groups in different ways. To the extent that a control on proselytism is intended to preserve a certain pattern of religious affiliation by limiting the opportunities for conversion, such a provision will naturally favor the majority religious [*268] group, particularly if the majority is not aggressively seeking converts of its own. As noted above with respect to the cases involving the Jehovah's Witnesses in the United States, regulations that are vague or that leave official decision makers broad discretion are susceptible to discriminatory abuse in their application. Furthermore, even restrictions that are framed in more precise, neutral terms can be enforced in a differential manner. In Kokkinakis v. Greece, n43 an applicant to the European Court of Human Rights described such a situation. Although the Greek statute in question prohibited proselytism by members of all religious groups, n44 the applicant asserted that Greece did not uniformly enforce the prohibition: - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n43. 260 Eur. Ct. H.R. (ser. A) (1993). n44. See infra note 101 and accompanying text. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -It would surpass "even the wildest academic hypothesis" to imagine, for example, the possibility of a complaint being made by a Catholic priest or by a Protestant clergyman against an Orthodox Christian who had attempted to entice one of his flock away from him. It was even less likely that an Orthodox Christian would be prosecuted for proselytising on behalf of the "dominant religion." n45 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n45. Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 16-17. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Regardless of whether or not this is, or was, an accurate portrayal of the enforcement of the Greek restrictions, it sufficiently illustrates the type of problem that can arise. Differential application or enforcement of nondiscriminatory rules can bring about the same results as discriminatory ones. III. Proselytism and International Human Rights Law All major international human rights documents recognize the right to freedom of religion, which includes not only the freedom to hold religious beliefs, but also the freedom to mani [*269] fest those beliefs. n46 Article 18 of the International Covenant of Civil and Political Rights ("ICCPR") provides:- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n46. See ICCPR, supra note 24, art. 18. This article will deal primarily with the developing body of international human rights law through the work of the United Nations Human Rights Committee ("Human Rights Committee" or "Committee") under the ICCPR, and the reports and decisions of the human rights tribunals of the Council of Europe, the European Court of Human Rights ("European Court"), and the European Commission of Human Rights ("European Commission," together the "European Bodies") under the European Convention. See supra note 24. The European Commission was disbanded in 1998, and its role has been subsumed into a reorganized European Court. See Protocol No. 11 to the European Convention, supra note 24. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -1. 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. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. n47 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n47. The provisions of other international instruments are based on the same language as article 18 of the ICCPR, which itself is derived from article 18 of the Universal Declaration of Human Rights. Article 9 of the European Convention provides: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. European Convention, supra note 24; see also American Convention on Human Rights, Nov. 22, 1969, art. 12, 9 I.L.M. 99 (1969) [hereinafter American Convention]; Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36-55, U.N. GAOR, 36th Sess. Agenda Item 75, Supp. No. 51, art. 1(1), U.N. Doc. A/36/55 (1981) [hereinafter Declaration on Religious Intolerance]; Concluding Document of the Vienna Meeting, Conference on Security and Cooperation in Europe, princ. 16, reprinted in 28 I.L.M. 531, 534 [hereinafter CSCE Vienna].- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - While the freedom to hold beliefs is considered to be absolute, i.e., not subject to limitation by the State, the freedom to [*270] manifest beliefs is subject to valid limitations. n48 According to the Human Rights Committee, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n48. See Human Rights Committee, General Comment No. 22 (48) (art. 18), U.N. GAOR, 48th Sess., Supp. No. 40, P 3, U.N. Doc. CCPR/C/21/Rev. 1/Add.1 (1989), reprinted in U.N. Doc. HR1/GEN/1/Rev.1 at 26 (1994) [hereinafter General Comment on Article 18]. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Article 18.3 permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.... The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. n49 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n49. Id. P8. The European Court has adopted a similar formulation for the review of an interference with the freedom to manifest religion or belief. "Such an interference is contrary to Article 9 unless it is prescribed by law, directed at one or more of the legitimate aims in paragraph 2 and necessary in a democratic society for achieving them." Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 18 (quotations omitted). For an interference to be "necessary in a democratic society," it must be both "justified in principle and proportionate" to the aim to be achieved. Id. at 21. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Both the Human Rights Committee and the European Court have clearly stated that those provisions guaranteeing the right to freedom of religion protect not only religious beliefs, but also other beliefs of a similar fundamental character, including atheism and agnosticism. n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n50. See
General Comment on Article 18, supra note 48, P2 ("Article 18 protects
theistic, non-theistic and atheistic beliefs, as well as the right not
to profess any religion or belief."); Kokkinakis, 260 Eur. Ct. H.R. (ser.
A) at 17 (Article 9 "is also a precious asset for atheists, agnostics,
skeptics and the unconcerned."). Along with the right to freedom of religion, international human rights instruments recognize the principles of equality and nondiscrimination on the basis of religion. The ICCPR and the European Convention both contain obligations to secure the rights specified in those instruments without "distinction of any kind" (in the words of Article 2(1) of the ICCPR n51) or "discrimi [*271] nation on any ground" (in the words of Article 14 of the European Convention). n52 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n51. Article 2(1) of the ICCPR provides: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." ICCPR, supra note 24, art. 2(1). n52. Article 14 of the European Convention provides: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." European Convention, supra note 24, art. 14. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -In addition, both instruments recognize that the principle of nondiscrimination extends beyond the assurance of the specific rights articulated in the instruments. Article 26 of the ICCPR obligates states to provide for the equal protection of the law and "equal and effective protection against discrimination on any ground." n53 This protection is not limited to the rights specified in the ICCPR, but extends to "any field regulated and protected by public authorities." n54 Although the obligation to prevent discrimination contained in article 14 of the European Convention does not have the same reach as article 26 of the ICCPR, an independent violation of a right specified in the European Convention is not necessary to support a claim of discrimination under article 14. To raise a valid claim of discrimination, it is enough to show that the subject matter of the claim falls within the scope of an article protecting a specified right. n55 It should be [*272] mentioned, however, that not every case of unequal treatment is considered to be discrimination. n56 Under both the ICCPR and the European Convention, unequal treatment is not discrimination if it is made in pursuit of a legitimate aim and is based on objective and reasonable grounds. n57 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n53. Article 26 of the ICCPR provides: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." ICCPR, supra note 24, art. 26. n54. The Human Rights Committee has determined that "article 26 does not merely duplicate the guarantees provided for in article 2.... [Article 26] prohibits discrimination in law and in practice in any field regulated and protected by public authorities." S.W.M. Broeks v. The Netherlands (views adopted 9 April 1987, 29th Sess.) Communication No. 172/1984, Report of the Commission on Human Rights, U.N. GAOR 42d Sess., Supp. No. 40, P12.3, U.N. Doc. No. A/42/40 (1987), reprinted in 2 Y.B.H.R. Comm. 293, 297 (applying Article 26 to social security legislation outside the purview of any of the other rights specified in the ICCPR) [hereinafter Broeks]. See also, General Comment on Article 18, supra note 48, P12. n55. See Belgium v. Marckx, 31 Eur. Ct. H.R. (ser. A) at 15-16 (1979); Inze v. Austria, 126 Eur. Ct. H.R. (ser. A) at 17 (1987). This relationship is established when a state enacts measures that go beyond the minimum requirements of specified rights. See, e.g., Belgian Linguistics Cases, 6 Eur. Ct. H.R. (ser. A) (1968) (suggesting that state provision of education in multiple languages beyond the requirements of the right to education protected under article 2 still is subject to provisions of article 14). The relationship may also be established when the state seeks to justify limitations on specified rights. See, e.g., Grandrath v. Federal Republic of Germany, App. No. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626, 678 (Eur. Comm'n. on H.R.) (1967) (limitation on right to be free from forced labor protected under article 4(3)(b)); Belgian Linguistics Case, 6 Eur. Ct. H.R. (Ser. A) at 34 (1968) ("It is as though [article 14] formed an integral part of each of the Articles laying down rights and freedoms."). For more on the debate behind this issue, see E. W. Vierdag, The Concept of Discrimination in International Law 113-20 (1973). n56. The Human Rights Committee has suggested the following definition under the ICCPR: "Discrimination"... should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.Human Rights Committee, General Comment No. 18 [37], P7, U.N. Doc. CCPR/C/21/Rev./Add.2, reprinted in 2 Y.B.H.R. Comm. at 377 [hereinafter General Comment on Non-discrimination]. This definition is patterned after the definitions contained in article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature March 7, 1966, 660 U.N.T.S. 195, reprinted in 5 I.L.M. 352 (entered into force Jan. 4, 1969) [hereinafter Race Convention] and article 1 of the Women's Convention (except that the Women's Convention definition does not include the term "preference"). These latter definitions do not appear to allow for any unequal treatment on the basis of race or sex, respectively. The use of the word "imply" in the Human Rights Committee's definition of discrimination under the Covenant appears to recognize the possibility that not all differential or unequal treatment is discrimination. n57. The Human Rights Committee had stated: "The right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26." Broeks, supra note 54, P13; see also General Comment on Article 18, supra note 48, P13 ("The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant."). The European
Court has come to a similar conclusion: Belgian Linguistics Case, 6 Eur. Ct. H.R. (ser. A) at 34 (1968). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*273]
The right to freedom of religion is also explicitly recognized in those
provisions of international human rights documents that concern the rights
of minorities. Specifically, article 27 of the ICCPR provides: "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."
n58 Although it has been expressed that article 27 provides for distinct,
and additional, protection of the right of persons belonging to religious
minorities to profess and practice their religion, n59 it is not entirely
clear how these provisions provide any additional protection in this regard
than that provided to all persons under the general provisions covering
the rights to freedom of religion and to equal protection of the laws.
One possible exception to this general statement is the obligation of
the state to take measures to protect the identity, including the religious
identity, of those belonging to a minority group. n60 Such measures must
be [*274] consistent with the general obligations against
discrimination. The Human Rights Committee has stated that special measures
are not discrimination when (1) they "are aimed at correcting conditions
which prevent or impair the enjoyment of the rights guaranteed under article
27," (2) they are "based on reasonable and objective criteria," and (3)
they "respect the provisions of articles 2(1) and 26 of the [ICCPR] both
as regards the treatment between different minorities and the treatment
between the persons belonging to them and the remaining part of the population."
n61 The key factor here is some condition that truly threatens the existence
or way of life of the minority, n62 or the ability to exercise their rights.
n63 n58. ICCPR, supra note 24, art. 27; see Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Annex 2 G.A. Res. 47/135, U.N. GAOR, 47th Sess., Supp. No. 49, art. 1(1), U.N. Doc. A/47/135 (Vol. I) (1992), reprinted in 32 I.L.M. 911 (1993) [hereinafter Minorities Declaration]; Framework Convention for the Protection of National Minorities Adopted by the Council of Europe, Feb. 1, 1995, art. 8, reprinted in 34 I.L.M. 351 (1995) [hereinafter Framework Convention]; Document of the Copenhagen Meeting of the Conference on the Human Dimension, Conference on Security and Cooperation in Europe, June 29, 1990, P32, reprinted in 29 I.L.M. 1305 (1990) [hereinafter Copenhagen Document]. n59. See Human Rights Committee, General Comment No. 23(50) (art. 27), U.N. GAOR 50th Sess., P1, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (1994) [hereinafter General Comment on Article 27] ("[Article 27] establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant."). n60. According to the Human Rights Committee, "positive measures by States may also be necessary to protect the identity of a minority...." Id. P6.2; see also id. P8. Article 8(3) of the Minorities Declaration provides that "measures taken by States to ensure the effective enjoyment of the rights set forth in [the present] Declaration shall not prima facie be considered contrary to the principle of equality contained in the Universal Declaration of Human Rights." Minorities Declaration, supra note 58, art. 8(3). The Minorities Declaration does not, however, contain any positive obligation on States to take such special measures. See Patrick Thornberry, International Law and the Rights of Minorities 51 (1991). Article 4 of the Framework Convention states: "Undertake to adopt, where necessary, adequate measures in order to promote... full and effective equality between persons belonging to a national minority and those belonging to the majority." Framework Convention, supra note 58, art. 4(2). Such special measures are not discrimination. See id. art. 4(3). In the framework of the protection of minorities under the Organization for the Security and Cooperation in Europe (formerly the Conference for the Security and Cooperation in Europe): The participating States will protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity. They will take the necessary measures to that effect after due consultations, including contacts with organizations or associations of such minorities, in accordance with the decision-making procedures of each State.Copenhagen Document, supra note 58, P33. n61. General Comment on Article 27, supra note 59, P6.2; see also Copenhagen Document, supra note 58, P33 ("Any such measures will be in conformity with the principles of equality and non-discrimination with respect to the other citizens of the participating State concerned."). n62. See Ominayak v. Canada, Communication No. 167/1984, U.N. GAOR, 45th Sess., Supp. No. 40, (Vol. II), Annex 9A, Commission on Human Rights, PP32.2, 33, U.N. Doc. A/45/40 (1990), reprinted in Y.B.H.R. Comm. at 381 (holding that state development plans that threaten to destroy subsistence patterns of Canadian Indian group violated the right "to engage in economic and social activities which are part of the culture of the community to which they belong" and which were protected under article 27). This could raise troubling issues for religious minorities if their existence is based on personal choice rather than national or ethnic difference. n63. See Lovelace v. Canada, Communication No. 24/1977, U.N. GAOR, 13th Sess., Supp. No. 40, (Vol. II), P15, U.N. Doc. A/36/40 (1981), reprinted in Y.B.H.R. Comm. at 320 (suggesting that the national law that deprived author of her right to remain on tribal reserve violated her right under article 27 to have access to her native culture and language in community with others because the reserve was the only place she could have access to those things). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - IV. The Rights and Interests Implicated by Restrictions on Proselytism In conflicts involving proselytism, the rights and interests of the source, the target and the state can be arrayed against one another. The task of determining whether proselytism can be [*275] restricted consistent with international human rights standards will necessarily involve an analysis of these rights and interests. This section explores the rights and interests of each of these parties, referring whenever possible to the adjudication and commentary by international bodies on these issues.A. The Rights of the Source 1. The freedom to manifest religion or belief Is proselytism a manifestation of religion or belief, and therefore encompassed within the concept of the right to freedom of religion or belief? There is no definitive consensus in international human rights instruments. With the exception of the American Convention, which explicitly states in article 12(1) that the right to freedom of religion includes the freedom to "disseminate one's religion or beliefs," n64 neither proselytism nor the freedom to disseminate a religion is mentioned in international instruments. n65 The lack of any direct recognition of proselytism may be an indication of the sensitivity of states to the issues it raises and the difficulty of delineating agreeable standards. n66- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n64. American Convention, supra note 47, art. 12(1). n65. Some activities that are closely associated with proselytism are mentioned in these international documents. See, e.g., General Comment on Article 18, supra note 48, P4 ("freedom to prepare and distribute religious texts or publications" is part of teaching and practice of religion); Declaration on Religious Intolerance, supra note 47, art. 6(d) (freedom to "write, issue and disseminate relevant publications"); id. art 6(f) (freedom "to solicit and receive voluntary financial... contributions"); CSCE Vienna, supra note 47, principle 16d (freedom to solicit financial contributions); id. principle 16j (freedom to disseminate religious publications). n66. As approved by the drafting committee of the Commission on Human Rights in 1947, the article in the draft Covenant on Civil and Political Rights on freedom of religion contained the following provision: Every person of full age and sound mind shall be free, either alone or in a community with other persons of like mind, to give and receive any form of religious teaching [and endeavor to persuade other persons of full age and sound mind of the truth of his beliefs], and in the case of a minor the parent or guardian shall be free to determine what religious teaching he shall receive. Malcolm D. Evans, Religious Liberty and International Law in Europe 194 (1997) (quoting Report of the Working Group to the CHR, E/CN.4/56, art. 15) (emphasis added). The italicized portion of the draft provision was deleted from the article as adopted by the Commission. See id. at 194-95. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -Given that proclaiming religious experience and belief is important to many of the major religions of the world, it is logi [*276] cal that the freedom to manifest religion would include the attempt to persuade another to adopt new religious beliefs or affiliation. n67 As Arcot Krishnaswami, a special rapporteur to the United Nations, has said: "While some faiths do not attempt to win new converts, many of them make it mandatory for their followers to spread their message to all, and to attempt to convert others. For the latter, dissemination is an important aspect of the right to manifest their religion or belief." n68 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n67. Not all states are in agreement. The Malaysian government
has argued that laws prohibiting proselytism directed at Muslims do not
impact upon the right to religious freedom of non-Muslims. .... Such being the limited scope of the enactments, they could not in any way diminish the enjoyment by non-Muslims of freedom of thought, conscience and religion. Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N. ESCOR, 46th Sess., Capital Provisional Agenda Item 24, Committee on Human Rights, P58, U.N. Doc. E/CN.4/1990/46 (1990) [hereinafter Special Rapporteur's Report 1990].The Indian Supreme Court in Stainislaus v. Madhya Pradesh & Ors., (1977) 2 S.C.R. 611, discussed infra notes 206-208 and accompanying text, held that "the right freely to profess, practice and propagate religion" as enshrined in the Indian Constitution, did not encompass the right to convert (or attempt to convert) another person to one's own religion. Id. at 615-16. A close reading of the Court's analysis shows that it made this determination because it believed that recognizing such a right would violate the rights of others. It can be questioned whether or not the Court should have made this determination at such an abstract level. It is one thing to say that the statute before it, by virtue of selecting the appropriate criteria, is a valid limitation on the right to propagate religion in furtherance of protecting the rights of others. It is another to implicitly hold that under no circumstances would a limitation be invalid, at least as against the constitutional protection of freedom of religion. n68. Krishnaswami Study, supra note 8, at 34. International recognition of the freedom to change religion further supports this view. See infra Part IV.B.1. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - CLICK HERE to read the second part of this article. |
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