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Part 2:

Proselytism and the Freedom to Change Religion in International Human Rights Law (continued)
by Tad Stahnke

International recognition of the freedom to change religion further support this view. The European Court has held that proselytism is a component of the freedom of religion guaranteed by article 9 of the European Convention:

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest [one's] religion. Bearing witness in words and deeds is bound up with the existence of religious convictions.

According to Article 9, freedom to manifest [one's] religion... includes in principle the right to try to convince [*277] one's neighbour, for example through teaching, failing which, moreover, freedom to change [one's] religion or belief, enshrined in Article 9, would be likely to remain a dead letter. n69

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n69. Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) at 17 (1993) (quotations omitted).

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The Inter-American Commission on Human Rights has apparently reached a similar conclusion, although in a case that did not directly concern proselytism. In Ortiz v. Guatamala, n70 the Inter-American Commission adjudicated claims concerning the kidnaping, detention and torture of an American Catholic nun, Sister Ortiz, by agents of the Guatemalan government. The Inter-American Commission determined that the violence inflicted on Sister Ortiz violated, inter alia, her right to freedom of religion protected under the American Convention:

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n70. Case 10.526, Inter-Am. C.H.R. 45, OEA/ser. L/V.II.95 doc. 7 rev. 2 (1996).

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It is likely that the attacks against Sister Ortiz were intended to punish and suppress her religious activities as a Church missionary and her work with the indigenous people of [Guatemala].... In addition, because of the surveillance, threats, kidnapping, torture and rape which Sister Ortiz experienced, she returned to the United States to escape her captors and the violence against her in Guatemala and has been unable to return because of her fear. As a result, she has been denied her right to exercise her right to freedom of conscience and religion by working as a foreign missionary in Guatemala for the Catholic Church. n71

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n71. Id. P119 (emphasis added). According to the case report, Sister Ortiz "was present in Guatemala as a representative of the [Catholic] Church who worked with poor indigenous persons...." Id. P81.

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As proselytism falls within the ambit of the manifestation of religion, it does so regardless of the form that it may take. A particular problem arises where the proselytizing activity is in a form that is unusual in comparison to other religious groups, or where it includes practices that are disfavored by those groups. However, in the words of the Human Rights Committee, the scope of the right to freedom of religion "is not limited [to]... practices analogous to those of traditional religions." n72 The United States Supreme Court addressed this problem by placing door-to-door proselytism of the Jehovah's Witnesses on equal footing with more traditional practices:

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n72. General Comment on Article 18, supra note 48, P2.

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[*278]

The hand distribution of religious tracts is an age-old form of missionary evangelism - as old as the history of printing presses. It has been a potent force in various religious movements down through the years. This form of evangelism is utilized today on a large scale by various religious sects whose colporteurs carry the Gospel to thousands upon thousands of homes and seek through personal visitations to win adherents to their faith. It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. n73

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n73. Murdock v. Pennsylvania, 319 U.S. 105, 108-09 (1943) (footnotes omitted).

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2. The right to freedom of expression

As proselytism is here defined as expressive activity, it is encompassed by the right to freedom of expression protected under international human rights instruments. Although the distinction between proselytism as the manifestation of religion or belief and proselytism as expression may seem formal, there can be practical ramifications to the designation as one or the other. First, that branch of proselytism where the source is motivated by a desire to convince the target to change her religious beliefs, but not adopt new ones, does not fall easily within the notion of the manifestation of religion or belief because the source does not necessarily have religious beliefs of her own. Second, categorizing proselytism as expression relieves the examiner from the task of determining whether or not the beliefs asserted by the source are "religious," or whether proselytism falls within the scope of religious freedom. Third, different results might be reached concerning the same conduct if the legal principles and standards employed to review the manifestation of religion differ from those governing expression. n74 Although [*279] this requires a close examination of the particulars in any given legal system, an example can be found in international instruments. While these instruments recognize that the protection of national security is a valid interest that may support a limitation on the right to freedom of expression, n75 they do not list national security as a justification for limitations on the freedom to manifest religion. n76

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n74. An issue of this type is reflected in the United States Supreme Court decision in Employment Division v. Smith, 494 U.S. 872 (1990), where the Court determined that "the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (involving the religiously-motivated use of peyote by members of the Native American Church)). The Court recognized, however, that prior cases (including those discussed supra Part II.C.1) held that the First Amendment barred the application of a neutral law of general applicability, but that these cases involved "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech or of the press." Smith, 494 U.S. at 881. Therefore, under current United States precedent, if proselytism were viewed only as a manifestation of the free exercise of religion, it might be subject to a different set of standards than if it were viewed as a matter of freedom of speech or of the press as well.

n75. See ICCPR, supra note 24, art. 19(3)(b); European Convention, supra note 24, art. 10(2); American Convention, supra note 47, art. 13(2)(b); African Charter on Human and Peoples' Rights, June 27, 1981, art. 27(2), reprinted in 21 I.L.M. 59 (1981) [hereinafter African Charter].

n76. The Human Rights Committee has noted this in General Comment on Article 18, supra note 48, P8: "The Committee observes that paragraph 3 of art. 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." Id.

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3.

Conclusion

Determining that proselytism is encompassed within either the freedom to manifest religion or belief or the right to freedom of expression does not mean that it cannot be restricted. However, such a determination establishes a presumption in favor of permitting proselytism, and any restriction must meet the requirements laid down in international instruments. Therefore, the validity of limitations on proselytism turns on the existence of overriding interests, articulated on behalf of the state, either in the protection of society in general or in the protection of the rights of others. Equally important, the limitations must sufficiently further those interests. n77 These rights and interests are discussed in the following sections.

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n77. See id. P 8; Human Rights Committee, General Comment 10 (art. 19), U.N. GAOR 19th Sess., P 4, U.N. Doc. HRI/GEN/1/Rev.1 at 11 (1994).

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[*280]

B. The Rights of the Target

The protection of the rights and freedoms of others is a recognized ground for limiting the freedom to manifest religion or the freedom of expression. n78 Thus, the source may be limited in order to protect the rights of the target to maintain a religion and be free from injury or offense to religious feelings. However, limiting the source may also restrict the target as the target is entitled to the freedom to change religion and the freedom to receive information. These considerations can move a state in contradictory directions.

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n78. See ICCPR, supra note 24, art. 18(3); European Convention, supra note 24, art. 9(2); American Convention, supra note 47, art. 12(3); African Charter, supra note 75, art. 8.

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1. The freedom to change religion

There is some controversy in the international community over the question of whether or not the right to freedom of religion encompasses the freedom to change religion. n79 Although this freedom is explicitly recognized in the Universal Declaration, the European Convention, and the American Convention, n80 the ICCPR adopted a related, but different, formulation: "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." n81 The Human Rights Committee's comment on the scope of this provision states that:

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n79. See Evans, supra note 66, at 238.

n80. See Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, art. 18 (1948); European Convention, supra note 24, art. 9(1); American Convention, supra note 47, art. 12(1).

n81. ICCPR, supra note 24, art. 18(2). Over time, reaching a consensus on this point seems to be even more elusive. The Declaration on Religious Intolerance, art. 1(2), adopted the same wording as article 18(2) of the ICCPR but deleted the important phrase "or to adopt." See Declaration on Religious Intolerance, supra note 47, art. 1(2).

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The Committee observes that 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, as well as the right to retain one's religion or belief. n82

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n82. General Comment on Article 18, supra note 48, P5.

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In certain countries, the treatment of apostasy overshadows and determines that of proselytism. If apostasy, i.e., the aban [*281] donment or renunciation of one's religious beliefs, is considered an offense, it naturally follows that proselytism, as the attempt by another to change one's beliefs, will be prohibited.

Certain Islamic states have laws prohibiting apostasy from Islam. n83 These laws purportedly stem from the Shari'a (i.e. the law based on the Qur'an and other Islamic holy writings, as well as subsequent jurisprudential interpretation of those texts), and the approach of that body of law to the commitment of those that have become, or have been born as, Muslims:

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n83. Islamic States are not the only ones that have, or have had, punishments for apostasy. According to Blackstone's Commentary on the laws of England, apostasy was at one time apparently punished by death, and in the seventeenth century a statute was enacted that provided that "any person educated in, or having made profession of, the christian religion, shall by writing, printing, teaching, or advised speaking, deny the christian religion to be true, or the holy scriptures to be of divine authority," was, for successive violations, ineligible to hold a public office, incapable of bringing a legal action or purchasing land, and imprisoned for three years. 4 William Blackstone, Commentaries *44.

Nepal apparently had, until recently, a prohibition on apostasy that applied to all religions. Article 19(1) of the Constitution of the Kingdom of Nepal provides that "Every person shall have the freedom to profess and practice his own religion as handed down to him from ancient times having due regard to the traditional practices: Provided that no person shall be entitled to convert the religion of any person." Nepal Const. art. 19(1), reprinted in Constitutions of the Countries of the World (Blaustein & Flanz eds., 1987). Apparently, a person is no longer prohibited from changing their religion by virtue of their own free will, as a law penalizing self-conversion was repealed in 1992. See Kusum Shrestha, Fundamental Rights in Nepal, 15 Essays in Constitutional Law 1, 21 (1993) (citing Amendment to section 1 of the chapter on Miscellany of the code of the country in 1992).

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The Qur'an vigorously denounces those who renounce Islam, for "the Devil has seduced them" away from the true faith (67:25). The major historical example is the revolt of the tribes after Muhammad's death in 632 A.D. Abu Bakr, and jurists since then, condemned secession from Islam (ridda) as doubly heinous: It not only is a violation of the compact of submission made with Allah, but it is also a breach of contract with his representatives on earth. It is, then, an offense both against God and against the state: it is both apostasy and treason. Far from having the right to become a non-Muslim, the Muslim faces the death penalty as a sanction for such a change. n84

[*282]

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n84. David Little et. al., Human Rights and the World's Religions: Christianity, Islam and Religious Liberty, in Religious Diversity and Human Rights, 213, 215 (Irene Bloom et al. eds., 1996).

In the Declaration on the Rights and Care of the Child in Islam of the Islamic Conference, this prohibition on apostasy is noted in Art. 8, which addresses the right to education:

While Islam guarantees Man's freedom to voluntarily adopt Islam without compulsion, it prohibits apostasy of a Muslim afterwards, in view of the fact that Islam is the Seal of Religions and, therefore, the Islamic society is committed to ensuring that the sons of Muslims preserve their Islamic nature and Creed and to protecting them against attempts to force them to relinquish their religion.

Declaration on the Rights and Care of the Child in Islam, U.N. GAOR, 50th Sess., Item 28, Annex I: Res. 16/7-C (IS), at 269, U.N. Doc. A/50/85/S/1995/152 (1995) [hereinafter Child in Islam].

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The enforcement of rules prohibiting apostasy in Islamic countries may vary, but in recent years at least a few states have sought to invigorate them and have defended them as consistent with international human rights standards. For example, Mauritania apparently has a provision in its Penal Code that imposes a death sentence for "any Muslim who abandons his faith and does not repent within three days." n85 The Mauritanian government has defended this offense and its penalty as a proper limitation (in furtherance of public order and morality) on the right to freedom of religion:

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n85. Special Rapporteur's Report 1990, supra note 67, P60 (quoting a letter addressed to Mauritania's government "transmitted by Special Rapporteur").

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The Islamic religion, which plays an important role in the maintenance of security and stability... is an integrated religious faith and any person who embraces it of his own free will must be assumed to have accepted all its teachings, including the rules governing apostasy, which strengthen the foundations of the society based upon it.

Apostasy from this religion, which guarantees so many freedoms and so much security, stability and social justice, is regarded as high treason and everyone is aware of the penalties that States impose for this type of offence, which threatens their stability and their very existence.

While this religion does not compel anyone to embrace it, it does not tolerate duplicity in this respect or apostasy, which are incompatible with its sacrosanct nature as a divinely-revealed religion based on immutable principles.

The precepts of this religion cannot be changed, since the holy law on which it is based comprises moral principles in which our society believes and any person who violates them arouses social indignation. Consequently, apostasy constitutes one of the most serious offences against the public order and morality established by this religion.... n86

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n86. Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N. ESCOR, 47th Sess., Provisional Agenda Item 22, Commission on Human Rights, P76, U.N. Doc. E/CN.4/1991/56 (1991) [hereinafter Special Rapporteur's Report 1991]. A similar view on apostasy was apparently held by Thomas Aquinas, who wrote that those "who at one time accepted the Faith, and professed it; they must be compelled, even by physical force, to carry out what they promised and to hold what they once accepted." Eric D'Arcy, Conscience and its Rights to Freedom 159 (1961). See Little et. al., supra note 84, at 222-23.

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[*283] In a society that imposes such a high price for apostasy, and claims such a close connection between adherence to the dominant faith and social and political stability (even to the point of threatening the very existence of the state), it follows that proselytism - at least proselytism of Muslims by others - will not be tolerated. n87

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n87. The Sudan also has a prohibition against apostasy, punishable by death, that directly prohibits proselytism as well. The law encompasses "every Muslim who propagates for the renunciation of the Creed of Islam or publicly declares his renunciation thereof by an express statement or conclusive act." Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N. ESCOR, 49th Sess., Provisional Agenda Item 22, Commission on Human Rights, P56, U.N. Doc. E/CN.4/1993/62 (1993) [hereinafter Special Rapporteur's Report 1993] (quoting section 126 of the Sudan Criminal Act 1991). The government of the Sudan has defended this law on the grounds that an Islamic State should apply Islamic law - or rules consistent with Islamic law - to problems that exist within an Islamic society:

Islam is regarded by Muslims not as a mere religion but as a complete system of life. Its rules are prescribed not only to govern the individual's conduct but also to shape the basic laws and public order in the Muslim State....

For Muslims, Islam provides a total system of life, starting even before birth extending throughout every moment of life. Matters such as infant-feeding, child-rearing, abortion, marriage and divorce, legacy and inheritance, bargains and contracts, war and peace, international relations, the treatment of minorities and all other aspects of life are governed in one way or another by legal rules in the sources of Islamic law. Furthermore, Muslims consider all these aspects as having the same importance as, let us say, ritual prayer and fasting. Hence, any problem which arises should be treated and solved in the way recommended by, or at least in harmony with, the related rules of Islam.

Accordingly, all aspects of Islamic law should be taken and accepted as a unit, one total and indivisible system. Hence, apostasy from Islam is classified as a crime for which ta'zir [disciplinary, reformative and deterrent] punishment may be applied. The punishment is inflicted in cases in which the apostasy is a cause of harm to the society, while in those cases in which an individual simply changes his religion the punishment is not to be applied. But it must be remembered that unthreatening apostasy is an exceptional case, and the common thing is that apostasy is accompanied by some harmful actions against the society or State.... Assuredly, the protection of society is the underlying principle in the punishment for apostasy in the legal system of Islam.

Id. P56. For a case study on the application of the apostasy law to an important religious and political figure in the Sudan, see Abdullahi Ahmed An-Na'im, The Islamic Law of Apostasy and its Modern Applicability: A Case from the Sudan, 16 Religion 197 (1986).

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[*284] Nonetheless, laws penalizing apostasy are inconsistent with international human rights standards. In those instruments that explicitly recognize the freedom to change religion, at the very least, penal sanctions on apostasy impermissibly restrict that freedom. In addition, the Human Rights Committee has clearly stated that: "Article 18.2 [of the ICCPR] bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers... to adhere to their religious beliefs...." n88

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n88. General Comment on Article 18, supra note 48, P5.

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It does not necessarily follow that the freedom to change religion, the freedom to abandon religious belief, or the "right to replace one's current religion or belief with another or to adopt atheistic views," n89 supports the freedom of others to proselytize. In other words, does restricting the ability to proselytize impair the rights of those who have not expressed a desire to receive such information? There is no international consensus on the answer to this question. For example, the Malaysian government has argued that a prohibition on proselytism of Muslims by non-Muslims does not interfere with the ability of Muslims to change their religion:

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n89. Id.

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If any Muslim desires to seek knowledge about another religion or even to possess another religion of his own free will and on his own initiative, [laws prohibiting proselytism] are not capable of deterring him. Those laws are merely aimed at protecting Muslims from being subjected to attempts to convert them to another religion. n90

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n90. Special Rapporteurs Report 1990, supra note 67, P58.

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However, as noted above, the European Court has adopted a different view, stating that the freedom to change religion would likely be "a dead letter" if the freedom to manifest religion did not include "the right to try to convince one's neighbour." n91

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n91. Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) at 17 (1993).

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The distinction between these two views lies in the conditions necessary to ensure a person's freedom to change her religion. Under one view, the absence of any hindrance or penalty on the part of the state is considered sufficient. The other view holds that, in order to truly ensure a person's right to change [*285] her religion, the state may not overly restrict the source from seeking out targets and attempting to deliver information relevant to exercising that freedom. This conflict of views is taken up again in the following section.

2. The freedom to receive information

The freedom to receive information has been expressed in international instruments as a corollary to the right to freedom of expression. n92 As stated in article 19(2) of the ICCPR, the right to freedom of expression "shall include freedom to seek[ ] [and] receive... information and ideas of all kinds." n93 The European Court has noted that the right of a person to "take cognisance" of certain views is implied in the right to impart those views. n94

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n92. See ICCPR, supra note 24, art. 19 (2); European Convention, supra note 24, art. 10 (1); American Convention, supra note 47, art. 13(1); African Charter, supra note 75, art. 9.

n93. ICCPR, supra note 24, art. 19(2) at 374.

n94. See Otto-Preminger-Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) at 20 (1994).

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As with the freedom to change religion, an important question here is whether the person exercising the freedom to receive information must seek it out themselves, or whether that person has some right to be confronted with views that others would like to put before him, which could then be accepted or declined. If the former is the case, the state may place significant restrictions on the mechanisms used to deliver information, and consequently will determine the information with which people will be confronted. Under the latter viewpoint, the state cannot usurp from potential receivers of information the power to determine the information with which they will be confronted; thus the state will be limited in its ability to restrict the delivery of information, even to those who have not expressed a desire to receive it.

An example of this latter view is found in the case of Martin v. City of Struthers, n95 in which the United States Supreme Court invalidated a statute that made it unlawful for a person to summon the occupant of a residence to the door for the purpose of distributing a handbill, circular or advertisement. n96 The Court noted that the freedoms of speech and of the press "embraced [*286] the right to distribute literature, and necessarily protected the right to receive it." n97 The statute criminalized the distribution of information regardless of the desire of the recipient to receive it, and therefore "substituted the judgment of the community for the judgment of the individual householder." n98 The Court found that the statute was a "naked restriction of the dissemination of ideas" because other legal avenues were available n99 - such as the law of trespass - that would "leave[ ] the decision as to whether distributers of literature may lawfully call at a home where it belongs - with the homeowner himself." n100

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n95. 319 U.S. 141 (1943).

n96. See id. In this case, a Jehovah's Witness was convicted under the statute for distributing a leaflet for a religious meeting. See id. at 142.

n97. Id. at 143 (citation omitted).

n98. Id. at 144.

n99. Id. at 147.

n100. Id. at 148 (referring to a proposed ordinance that would make it illegal to approach the home of a person who has indicated that solicitation is unwelcome).

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International human rights standards do not lead to a simple solution to this problem. The presumption is on the side of expression, and the state seeking to restrict expression must justify the limitation. However, restrictions on expression must be viewed in light of the circumstances in which they arise, including the extent to which information of all kinds flows freely within a society. For instance, if people are continually confronted with information designed to influence their political opinions, their moral values, and even their consumer choices, it might be inconsistent to otherwise overly restrict information designed to influence their religious choices. Such may be the case in European and American democracies. On the other hand, in societies where information is generally restricted and people must seek it out rather than be confronted by it, it may be more problematic to allow information on religion to flow freely. Although generally restrictive policies on free expression cannot, in themselves, support further restrictions, it should be left open to states to articulate the specific harm that could result from the confrontation occasioned by unsolicited expression.

3. The freedom to have or maintain a religion

While the freedoms to change religion and to receive information may support the freedom to proselytize, other rights and freedoms may support a restriction on proselytism. In Kokkinakis v. Greece, n101 Greece successfully argued to the Euro [*287] 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. However, for such a restriction to be a valid limitation on the right of the source to manifest their religion, the Court ruled that particular circumstances must be present that render the proselytism "improper."

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n101. 260 Eur. Ct. H.R. (ser. A) (1993).

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In the Kokkinakis case, the European Court examined the conviction of a Jehovah's Witness, Minos Kokkinakis, for a violation of a Greek law criminalizing proselytism. Article 13(2) of the 1975 Greek Constitution provides, in relevant part: " There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited." n102 The term "proselytism" as used in the Greek Constitution was defined in the statutory enactments of the late 1930s that made proselytism a criminal offense:

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n102. Greek Const. art. 13(2), reprinted in Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 11. Previous Greek constitutions, beginning in 1844, contained a prohibition against proselytism only when targeted at the dominant religion, the Christian Eastern Orthodox Church. See Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 12.

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2. By "proselytism" is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion... , with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety.

3. The commission of such an offence in a school or other educational establishment or a philanthropic institution shall constitute a particularly aggravating circumstance. n103

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n103. Section 4 of Act 1363/1938, as amended by Section 2 of Act 1672/1939, reprinted in Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 12.

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Further clarification on proselytism was given by the Greek courts as follows:

Purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and [*288] without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by the aforementioned provision of the Constitution. n104

The Greek government argued to the European Court that "the sole aim of [the prohibition on proselytism] was to protect the beliefs of others from activities which undermined their dignity and personality," n105 and that such a prohibition was necessary "to protect a person's religious beliefs and dignity from attempts to influence them by immoral and deceitful means." n106 Although not explicitly adopting these arguments, the Court ruled that the conviction of Mr. Kokkinakis was in pursuit of the legitimate aim of protecting the rights of others. n107 Furthermore, the Court went on to approve of the attempt in the Greek legislation to develop criteria that would separate what it termed "Christian witness" from "improper proselytism":

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n104. Supreme Administrative Court, judgment no. 2276/1953, reprinted in Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 13. This case was decided prior to 1975, when the constitutional provision was revised to encompass all proselytism, rather than only that targeted at Orthodox Christians.

n105. Kokkinakis, 260 Eur. Ct. H.R. (ser. A) at 18.

n106. Id. at 20.

n107. See id. at 20.

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First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, [which has been] described as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may... take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.

Scrutiny of [the Greek statute] shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case. n108

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n108. Id. at 21.

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[*289] Noting, however, that it had not been shown in the Greek courts that Mr. Kokkinakis had done anything improper, the Court determined that his conviction was a violation of article 9 of the European Convention. n109

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n109. See id. at 50. According to the Greek Courts, the evidence indicated that Mr. Kokkinakis had done the following:

[The Kokkinakises] went to the home of [the target]... and told her that they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven, to events which had not yet occurred but would occur, etc., encouraging her by means of their judicious, skilful [sic] explanations... to change her Orthodox Christian beliefs.

[Mr. Kokkinakis] visited [the target] and after telling her he brought good news, pressed her to let him into the house, where he began by telling her about the politician Olof Palme and by expounding pacifist views. He then took out a little book containing professions of faith by adherents of the [Jehovah's Witnesses] and began to read out passages from Holy Scripture, which he skilfully [sic] analysed.

Id. at 8-9.

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Although it is open to other interpretations, the identification of "improper proselytism" in this case seems to correspond to the notion of coercion that would impair the freedom to have, or more clearly, to maintain, a religion. The important question that follows is at what point can expression by one person work a coercion on another to relinquish their religious beliefs? This question is taken up further in Part V below.

4. Freedom from injury to religious feelings

Proselytism may fall within the ambit of laws prohibiting blasphemy or the injury to religious feelings where the expression by the source includes criticism or a negative portrayal of the doctrine, scriptures, or founder of a particular religious tradition. The precise scope of these laws raises sensitive issues, as an attempt to change a person's religious beliefs will at times include some argument as to what is incorrect or undesirable about those beliefs. These types of laws can be used to suppress the expression of religious beliefs or opinions on religious issues that are perceived to be incorrect by or are unpopular with adherents of other religious groups, particularly the dominant group.

It is to prevent the dissemination of a faith in a manner offensive to others that special laws, such as laws against blas [*290] phemy, have been enacted.... Unfortunately, in some cases the laws against blasphemy have been framed in such a manner that they characterize any pronouncement not in conformity with the predominant faith as blasphemous.... [They] have sometimes been used to limit unduly - or even to prohibit altogether - the dissemination of beliefs other than those of the predominant religion or philosophy. n110

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n110. Krishnaswami Study, supra note 8, at 35.

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Blasphemy and injury to religious feelings are closely related. Blasphemy has been described in general as:

purposely using words concerning God calculated and designed to impair and destroy the reverence, respect and confidence due to Him as the intelligent creator, governor, and judge of the world.... It is a willful and malicious attempt to lessen men's reverence of God by denying His existence, or His attributes as an intelligent creator, governor, and judge of men, and to prevent their having confidence in Him as such. n111

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n111. Black's Law Dictionary 216 (4th ed. 1968) (quoting Commonwealth v. Kneeland, 20 Pick. (Mass.) 206, 211, 212 (1838)).

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It follows that one purpose of prohibitions against blasphemy is to protect adherents of religious beliefs in their own feelings about those things that are sacred to them. In this regard, the European Commission has determined that the "main purpose" of the English common law offense of blasphemous libel is "to protect the rights of citizens not to be offended in their religious feelings." n112

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n112. Gay News Ltd. v. United Kingdom, 5 Eur. H.R. Rep. 123, P11 (1983) (Commission report).

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There are, however, important distinctions between the concepts of blasphemy and injury to religious feelings. Blasphemy statutes, for example, do not necessarily protect all persons from injury to religious feelings. In the leading modern English case on blasphemous libel at common law, Lord Scarman criticized the blasphemy law on the grounds that it did not sufficiently protect the religious feelings of all in a plural society:

I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences de signed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt. n113

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n113. R. v. Lemon [1979] 1 All E.R. 898, 921-22. The English courts explicitly declined to extend the offense of blasphemy to cover other religions in R. v. Chief Metropolitan Stipendairy Magistrate, ex parte Choudhury, 1 All E.R. 306 (Q.B. 1991). In that case, a British Muslim had sought to bring summonses against Salman Rushdie and his publisher for The Satanic Verses. The European Commission determined that the protection provided by English blasphemy law only to the Church of England, and in some respects to Christianity as a whole, was not discrimination on the basis of religion in violation of Art. 14 of the European Convention. See Choudhury v. U.K., 12 Hum. R. L. J. 172-73 (1991). The European Court did not have this question before it when it considered English blasphemy laws in Wingrove v. United Kingdom, 24 Eur. H.R. Rep. Ct. H.R. 1, 18 (1996), where the applicant attacked the foundation of the law of blasphemy. See id. P50. In 1994, the High Court of Lahore apparently ruled that "blasphemy against any prophet of God would be tantamount to blasphemy against the prophet Mohammed." Special Rapporteur's Report 1996 Add.1, supra note 41, P27.

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Laws prohibiting injury to religious feelings broaden this protection to safeguard all religious beliefs.

Additionally, whereas protection of the injury to religious feelings may be directed toward the security of persons in holding their religious beliefs, and perhaps also to the maintenance of public order, it has been argued that protection against blasphemy is directed toward maintaining the health of one of the very roots of society. In other words, damage to the dominant religion is equated with damage to one of the foundational elements of both society and the state. An English court expressed this idea as follows:

Indeed, all offences of this kind are not only offences to God, but crimes against the law of the land, and are punishable as such, inasmuch as they tend to destroy those obligations whereby civil society is bound together; and it is upon this ground that the Christian religion constitutes part of the law of England.... n114

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n114. Choudhury [1991] 1 All E.R. at 313 (quoting R. v. Williams [1797] 26 State Tr. 654, 714).

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There is a strong similarity between this view and the arguments the Mauritanian and Sudanese governments advanced in defense of prohibitions on apostasy. n115

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n115. See supra notes 86-87 and accompanying text.

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[*292] As noted above, proselytism can include criticism of the religious beliefs of a target; the unsuccessful attempt to change those beliefs is thus likely to cause injury to religious feelings. When states seek to curtail such injury by limiting proselytism, these restrictions must be carefully structured. Legal provisions protecting religious feelings, either denominated as prohibitions of blasphemy or cast in more general terms, can sweep into their purview almost any act of proselytism if states define the offense too broadly. Specifically, states must carefully consider the level of intent necessary to commit the offense and the perspective from which the offensive acts must be viewed. As to the former, if any attempt to convince someone that her religious beliefs are worthy of replacement satisfies the intent requirement of a statute prohibiting injury to religious feelings, the application of the law to proselytism will be quite broad. As to the latter, if the offense is viewed from the subjective perspective of the actual target or from the point of view of a "typical" adherent to the beliefs of either the source or the target, the application of the law may be biased and subject to abuse.

A 1960 case from Pakistan illustrates these problems. In Punjab Religious Book Society v. State, n116 the High Court of Pakistan reviewed the government's seizure of a book that was alleged to violate a law prohibiting injury to religious feelings. n117 The law - section 295-A of the Pakistan Penal Code - was adopted in 1927 during British rule, and applied to all religions:

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n116. [1960] P.L.D. 629 (W. P.) Lahore 631 (Pak).

n117. The Penal Code of Pakistan now contains a number of offences relating to religion that could operate as restrictions on proselytism. These include performing acts or uttering words intended to outrage or wound the religious feelings of others (secs. 295-A and 298); blasphemy against the Holy Prophet Muhammad (sec. 295-C); defiling a copy of the Holy Quran (sec. 295-B); making derogatory statements concerning other Muslim holy personages (sec. 298-A); and a variety of prohibitions on persons of the religious group known as Ahmadis, including "propagation of [their] faith, or inviting others to accept [their] faith" (secs. 298-B and 298-C). See 1 Abdul Halim, The Pakistan Penal Code with Commentary 637-48 (4th ed. 1989). For further information on restrictions against the Ahmadis, a group that proclaims itself to be Muslim but that some Muslims consider heretical, see Commission on Human Rights, Special Rapporteur's Report 1996 Add.1, supra note 41, PP9, 13, 21, 41-44. Some of these criminal provisions were adopted during British rule while others were added during the Islamicization campaign of President Zia-ul-Haq in the 1970s and 1980s and of Prime Minister Nawaz Sherif in the 1990s. See id. PP10-16.

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Whoever, with deliberate and malicious intention of outraging the religious feelings of any class [of the citizens of Pakistan], [*293] by words, either spoken or written, or by visible representations, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. n118

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n118. 1 Halim, supra note 117, at 640 (alteration in original).

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According to the report of the case, the Urdu translation of a book written by a German missionary named Rev. C.G. Fander had been distributed in Pakistan since 1891. The book was clearly an act of proselytism, as it was described as a "comparison between Islam and Christianity" and the "object of the author... was to show that Christianity was a true religion and Islam was not." n119 The validity of the book's seizure depended on whether or not its publication was punishable under section 295-A. Thus, the central question was whether the intention of the author met the requirements of the statute. On this point, the High Court of Lahore addressed the inevitable conflict between persuasion in religious beliefs and injury to religious feelings:

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n119. Punjab Book Society, P.L.D. at 631.

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Now, it will be noticed that the intention contemplated by section 295-A of the Pakistan Penal Code is not just the ordinary intention that one finds mentioned with regard to almost all other offences made punishable by that Code but a deliberate and malicious intention to do the thing mentioned therein. It appears to me that in section 295-A of the Pakistan Penal Code the Legislature hedged "intention" with "deliberately" and "maliciously" because it was providing punishment for insulting or attempting to insult the religion or religious beliefs of a person and it is well-known that when followers of a religion try to show that their religion is the best in the world, words which will not be palatable to the followers of other religions are difficult to avoid and if it were not made necessary that the intention to do the things mentioned in the section should be deliberate and malicious, the door would have been closed on all religious discussions.... However, the laws of Pakistan, like those of every other civilised country, do not forbid religious discussions and preachings and I should think that if a law attempted to put a gag on these things it will be attempting to attain the impossible because it will be wanting to deny human beings the satisfaction they want to get from [*294] showing to as many people as they can that at least in matters which are not mundane they have made the best choice.... It is clear that in the attempt to show that a particular religion is better than the others, things may be said or written which will outrage the religious feelings of followers of other religions. When a person does that, the law will presume that he intended to insult religious beliefs of the followers of other religions. But even so the ingredients of section 295-A of the Pakistan Penal Code will not have been satisfied because they can be satisfied only if it is established that the intention to insult the religious beliefs was deliberate and malicious. When the thing objected to on the ground that it outrages the religious feelings of others is extremely offensive and has no reliable source to justify its acceptance as correct, the Court will presume that it was done with the deliberate and malicious intention of insulting the religious beliefs of the followers of the religion to which or the founder of which the thing relates. The same presumption will be raised when the thing objected to indicates that the argument in favour of one religion has sunk to the level of abuse of another. n120

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n120. Id. at 637-38.

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Furthermore, the Court cautioned that the perspective from which the action was to be judged was that of a neutral person of normal susceptibilities: "a person who is neither connected with the religion of the person who is alleged to have outraged the religious feelings of someone nor with that of the person or persons whose religious feelings are stated to have been outraged." n121 Although the contents of the book exhibited an intent to outrage the religious feelings of Muslims, the Court found that it could not be said to have gone so far as to be deliberate and malicious. n122

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n121. Id. at 638.

n122. See id. at 639-40.

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Are the dangers identified by the Pakistani Court recognized in international standards as well? The European Court has on two occasions addressed whether laws prohibiting blasphemy and the injury to religious feelings were consistent with article 10 of the European Convention protecting free expression. Although these cases did not involve proselytism, they do articulate general principles that would pertain to the application of these laws to proselytism. n123

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n123. The European Commission has indicated that prohibitions on blasphemy could be applied to manifestations of religious belief. Gay News, 5 Eur. H.R. Rep. P13 ("Even assuming that there had in fact been an interference with the applicants' rights under Art. 9, it would have been justified under Article 9(2) on ... the same grounds as the restriction of the applicants' freedom of expression under Article 10(2).").

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[*295] In Wingrove v. United Kingdom, n124 the European Court considered the English common law of blasphemy as it was applied by the British authorities to prohibit the distribution of an original video work, entitled Visions of Ecstasy. n125 The English courts had defined blasphemy as follows:

n124. 24 Eur. H.R. Rep. 1 (1996).

n125. The video depicted the artist's explicit conception of the ecstatic visions of Jesus Christ by St. Teresa of Avila. See id. at 5-13.

n126. Id. at 14 (emphasis added) (quoting art. 214 of Stephen's Digest of the Criminal Law (9th ed. 1950).

In the view of the European Court, the interference with free expression resulting from the law of blasphemy was in furtherance of "the protection of "the rights of others'.... It is also fully consonant with the aim of the protections afforded by article 9 to religious freedom." n127

n127. Id. at 28.

In determining that there had been no violation of article 10 resulting from the restrictions on the video, the Court first noted that a less exacting level of international scrutiny was appropriate for restrictions on expression that could offend moral or religious convictions than for restrictions on "political" speech:

n128. Id. at 30.

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The Court then found that because the English law of blasphemy "does not prohibit the expression, in any [possible] form, of views hostile to the Christian religion," or necessarily "opinions which are offensive to Christians," n129 "the reasons given to justify the measures taken can be considered as both relevant and sufficient for the purposes of Article 10(2)." n130

n129. Id. at 31.

n130. Id.

In the case of Otto-Preminger-Institut v. Austria, n131 the European Court addressed an Austrian law designed to protect injury to religious feelings. The law provided:

n131. 295 Eur. Ct. H. R. (ser. A) (1994).

n132. Section 188 of Austrian Penal Code, reprinted in Otto-Preminger, 295 Eur. Ct. H.R. (Ser. A) at 12.

The law was applied to seize a film entitled Das Liebeskonzil ("Council in Heaven"). n133 In the course of its decision, the Court explained how criticism of a religion might interfere with an adherent's right to freedom of religion:

n133. See Otto-Preminger, 295 Eur. Ct. H.R. (Ser. A) at 8-9. According to the report of the case, the film was based on a play written by Oskar Panizza that was published in 1894. Panizza was later imprisoned by a German court for "crimes against religion," and the play was banned in Germany. Id. at 11.

n134. Id. at 18. The dissenting judges opposed the idea that the right to freedom of religion encompassed the protection of religious feelings from injury. See id. at 24 (Palm, Pekkanen and Makarczyk, JJ., dissenting).

The Court determined that the seizure of the film did not violate article 10 of the European Convention because the Austrian Courts could reasonably determine that seizure was necessary to protect the religious peace in the district in which it was going to be shown. n135

n135. See id. at 20-21.

In both Wingrove and Otto-Preminger-Institut, it was the manner in which the message was delivered, and not the content of the message, that implicated a restriction on the freedom to deliver it. Any harm resulting from the substance of a message must generally be tolerated in respect of the different views that make up a pluralistic society. n136 Harm resulting from the method of its delivery, however, may be limited through restric [*298] tions when the manner of expression is extreme enough. As the European Court recognized in the Otto-Preminger-Institut case:

n136. An exception to this principle may be found in the obligation to prohibit "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" as provided in article 20(2) of the ICCPR. See also General Comment on Article 18, supra note 48, P7 ("No manifestation of religion or belief may amount to ...advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence."); Race Convention, supra note 56, art. 4; American Convention, supra note 47, art. 13(5); Copenhagen Document, supra note 58, P40; Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, art. 22(d), reprinted in U.N. GAOR, 4th Sess., Agenda Item 5, U.N. Doc. A/CONF.157/ PC/62/Add. 18 (1993). Where the content of proselytism includes expression that falls within the ambit of these provisions, the State may be obligated to act to prohibit such expression.

n137. Otto-Preminger, 295 Eur. Ct. H.R. (ser. A) at 19.

The European Court appears willing to leave to the discretion of states - in light of conditions that may exist in each - to determine at what point the manner of expression so overwhelms the message that the right of others to hold contrary views has been violated.

One factor that may be considered by a state in its exercise of this discretion is the appropriate perspective from which to view the alleged offense or injury to religious feelings. The Austrian government in the Otto-Preminger-Institut case had argued that the seizure of the film was necessary, in part, because of the fact that a vast majority of the residents of the area where the film was to be shown were Roman Catholic. n138 The Court accepted that this could be used as a factor, without specifically addressing the need to view these situations in an objective manner:

n138. See id. at 20.

n139. Id. at 21.

In contrast, the United States Supreme Court has taken the view that the state may not legitimately prohibit "attacks upon a particular religious doctrine," n140 because of the inherent difficulty in administering such a prohibition without favoring certain groups over others. In Joseph Burstyn, Inc. v. Wilson, n141 the Supreme Court struck down a New York law that prohibited the commercial showing of motion pictures that were determined by state officials to be "sacrilegious." The term "sacrilegious," as used in the statute, was interpreted by New York's highest court to mean that "no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule." n142 The Supreme Court noted the difficulty in applying the definition of "sacrilegious" in an objective manner:

n140. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505 (1952).

n141. Id.

n142. Joseph Burnstyn, Inc. v. Wilson, 101 N.E.2d 665, 672 (1951).

n143. Wilson, 343 U.S. at 504-05 (citation omitted).

5. The right of persons belonging to religious minorities to maintain their religious traditions and identity

n144. General Comment on Article 27, supra note 59, P9.

n145. Id. P 6.2.

The loss of identity through successful conversion efforts cannot, without more, render proselytism a violation of the rights of persons belonging to a religious minority. Success in proselyting may only be indicative of the free choice of the target. It is the individual's desire to maintain an identity that triggers protection for that identity. n146 This issue has arisen in connection with the rights of indigenous peoples, and the protection of those who continue to adhere to their native religious beliefs. However, to more fully appreciate the situation of indigenous peoples, it is necessary to take a step back and consider briefly the process of religious change that attended the colonial experience.

n146. In this regard, there can be significant conflict between individual members of minority groups and the group as a collective body or its leadership. See Francesco Capotorti, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, U.N. ESCOR 32d Sess. P250, U.N. Doc. E/CN.4/Sub.2/384/Rev.1, U.N. Sales No. E. 78.XIV.1 (1979) [hereinafter Linguistic Minorities].

Religious change has historically gone hand in hand with international exploration, conquest and colonization, and the resulting political re-alignments. The attempt to spread European Christianity was a feature of the colonial enterprise in Africa and Asia, although policies and practices varied from imperial power to imperial power and according to local conditions. n147 The propagation of Christianity among the native inhabitants was an attendant purpose to the exploration, conquest and settlement of the lands of the Western hemisphere. n148 Like [*301] wise conversion to Islam accompanied the expansion of Arab empires into North Africa, the Middle East, and Persia. n149

n147. See 2 Justo L. Gonzalez, The Story of Christianity 305-06 (1985).

n148. See The Papal Bull, Inter Caetera (Alexander VI), May 4, 1493, in Documents of American History 3 (Henry Steele Commager ed., Appleton-Century-Crofts, Inc., 5th ed. 1949) ("We have indeed learned that you, who for a long time had intended to seek out and discover certain islands and mainlands remote and unknown and not hitherto discovered by others, to the end that you might bring to the worship of our Redeemer and the profession of the Catholic faith their residents and inhabitants."); First Charter of Virginia, April 10, 1606, in Documents of American History, supra, at 8 ("We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those Parts, to human Civility, and to a settled and quiet Government; Do, by these our Letters Patents, graciously accept of, and agree to, their humble and well-intended Desires."); Mayflower Compact, November 11, 1620, in Documents of American History, supra, at 15 ("Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first colony in the northern Parts of Virginia."); The First Charter of Massachusetts, March 4, 1629, in Documents of American History, supra, at 18 ("Of all other Matters and Thinges, whereby our said People, ... may be soe religiously, peaceablie, and civilly governed, as their good Life and orderlie Conversacon, maie wynn and incite the Natives of Country to the Knowledg and Obedience of the onlie true God and Sauior of Mankinde, and the Christian Fayth, which in our Royall Intencon, and the Adventurers free Profession, is the principall Ende of this Plantacion.").

n149. See Ira M. Lapidus, A History of Islamic Societies 51-53 (1988).

An assessment of these events in terms of the right to freedom of religion of both native and newcomer is beyond the scope of this study. However, this history has shaped the policy of some states towards proselytism, either in general or with respect to those segments of the population that still adhere to native religious beliefs.

Jose R. Martinez Cobo, the U.N. Special Rapporteur that studied discrimination against indigenous populations, described the conflict between colonizers and natives over religious beliefs and practices in this way:

n150. Jose R. Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1982/2/Add.7, P48 (1982) [hereinafter Cobo Report].

As a result of the ensuing or threatened disorder, some colonial powers began to control access of religious groups to certain areas. n151

n151. See Krishnaswami Study, supra note 8, at 55 n.1.

To some subsequently independent peoples, this experience has left an ambivalent legacy. On the one hand, there is a measure of acceptance of the beliefs of the newcomer - as "adopted" by the native inhabitants and as an important part of the culture of the now independent nation. On the other hand, there is a sometimes bitter or painful awareness of the elements of suppression and coercion that led to their adoption. The religious policies of certain independent states reflect this ambivalence, which has led in some cases to heightened concern with proselytism and the activities of foreign missionaries. n152

n152. In addition to the example of Papua New Guinea described below, see Zimb. Const. art. 19(5)(b) (permitting limitations on the freedom of religion "for the purposes of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of persons professing any other religion or belief "), reprinted in Constitutions of the Countries of the World (Blaustein & Flanz, eds., 1987).

An example of this ambivalence can be seen in the provisions of the Constitution of Papua New Guinea, a territory formerly administered by Australia, adopted at its independence in 1975. The Constitution recognizes in its preamble that: "WE, THE PEOPLE OF PAPUA NEW GUINEA... pledge ourselves to guard and pass on to those who come after us our noble tradi [*303] tions and the Christian principles that are ours now." n153 However, Section 45 of the Constitution contains specific qualifications on the right to freedom of religion with respect to the ability to propagate religious views and intervene into the religious affairs of others. n154 The genesis of these provisions has been described as follows:

n153. Papua N.G. Const. preamble, reprinted in Constitutions of the Countries of the World, supra note 83.

n154. See John L. Goldring, The Constitution of Papua New Guinea: A Study in Legal Nationalism 233-34 (1978). Section 45 of the Constitution reads:

Id. at 234.

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The phrasing of [section 45] represents an attitude, common in Papua New Guinea, of an acceptance of some Christian principles coupled with a resentment of the activities of many of the missionaries who brought Christianity to the country. Many Papua New Guineans, though sincere Christians, maintain links with traditional practices and beliefs and particularly resent the efforts of some missionaries to suppress aspects of the traditional culture, particularly art-forms and traditional ceremonies. This explains the emphasis in the section on the exercise of rights to propagate religious views only to the extent that they do not interfere with the freedoms of others. n155

n155. Id. at 233-34.

In an effort to avoid the abuses of the past, a number of countries have formulated policies directed at protecting those holding native beliefs. These express concerns may support a restriction on certain aspects of proselytism.

The first concern is condemnation or suppression of native beliefs by state action or by religious groups - in particular, those religious groups administering educational or health care facilities or providing humanitarian assistance in areas where traditional beliefs remain prevalent. Where proselytism is pres [*304] ent in this context, its coercive possibilities are enhanced by a restriction on the freedom of religion of those adhering to native beliefs. The extent to which private religious groups ultimately restrict religious freedom under these circumstances depends upon the extent to which those groups dominate or control important services.

A second concern is the prevention of any exercise of governmental authority by religious groups in native areas. This practice of giving religious groups governmental power was employed in a number of colonial settings; in particular, some Latin American countries granted administrative authority to missionary organizations of the Catholic Church. n156 The dangers of this policy are the potentially coercive use of governmental authority, or the confluence of governmental and religious identity, that would exert pressure on those holding other beliefs to adopt the "official" beliefs.

n156. See, e.g., Cobo Report, supra note 150, PP57-58 (reviewing a 1946 Argentinian decree that recommended "the establishment of missions among the Indians" and declared that "no new religious missions, temples or denomination organizations belonging to faiths other than the Roman Catholic Apostalic faith shall be established in national territory for purposes of proselytism among the Indians").

A third concern is official policy based on the notion that a change in religious beliefs and practices, i.e., the adoption of the dominant or another recognized religion, is in the best interests of the indigenous peoples because it will assist them in becoming more fully integrated or assimilated into society at large. n157 Regardless of the considerable debate over whether or not such efforts at assimilation have been successful, these policies substitute the choice of the state for the choice of the individual. In this regard, the Draft United Nations Declaration on the Rights of Indigenous Peoples provides that:

n157. For an example of a restriction on proselytism in the face of this concern, see State Party Report of Brazil to the Human Rights Committee, P235, U.N. Doc. CCPR/C/81/Add.6 (1997) ("All churches and denominations are free to establish places of worship and religious education, though the Government controls access of missionaries to indigenous areas so as to avoid forced acculturation.").

Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities.....

[*305] (d) Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures.... n158