Abstract
The 1966 International Covenant on Civil and Political Rights is one of the most important universal treaties on human rights. The Covenant protects, in the form of a legally binding international treaty ratified by three quarters of all states in the world,1 a large part of the rights enshrined in the 1948 Universal Declaration of Human Rights. Many of these rights are also protected by the International Covenant on Economic, Social and Cultural Rights, a sister covenant to the Covenant on Civil and Political Rights. In some areas, the two covenants fail to protect certain rights included in the Declaration.2 In other respects, the two covenants represent a progressive development in the understanding of human rights, since they include rights that are not mentioned in the Universal Declaration.3 Freedom of thought, conscience, and religion is protected by article 18 of the Covenant on Civil and Political Rights and reads as follows:
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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.
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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.
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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.
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4.
The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
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As of 2 May 2003, 149 states had ratified the Covenant. In addition, the Covenant continues to apply in Kazakhstan, Hong Kong, and Macau due to earlier ratification by the Soviet Union, the United Kingdom, and Portugal respectively. The Human Rights Committee has consistentiy taken the position that once the population of a territory finds itself protected by the Covenant, state succession or other forms of transfer of sovereignty over the territory do not affect the applicability of the Covenant.
See Universal Declaration of Human Rights, art. 17 (property), and art. 14 (asylum).
See ICCPR, art. 27 (rights of members of minorities).
Tore Lindholm, W. Cole Durham, Jr., Bahia G. Tahzib-Lie (eds.), Facilitating Freedom of Religion or Belief: A Deskbook, 189–202. © 2004 Koninklijke Brill NV. Printed in the Netherlands.
ICCPR, art. 18(4) is similar to ICESCR, art. 13(3). This is one of the issues where there is considerable interdependence between the two 1966 Covenants.
ICCPR, art. 4( 1 ) provides for derogation from obligations under the Covenant “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed . . . provided that such measures are not inconsistent with [States Parties’] other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” Article 4(2) states, “No derogation from articles 6, 7, 8 (paras. 1 and 2), 11, 15, 16 and 18 may be made under this provision.”
“Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property, or birth, the right to such measures or protection as are required by his status as a minor, on the part of his family, society and the State” (ICCPR, art. 24[1]).
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 practice their own religion, or to use their own language(ICCPR, art. 27).
Committee on Economic, Social and Cultural Rights, established to supervise the implementation of the International Covenant on Economic, Social and Cultural Rights; the Committee on Elimination of Discrimination Against Women, established pursuant to article 17 of the Convention on Elimination of All Forms of Discrimination Against Women; the Committee on the Elimination of Racial Discrimination, established pursuant to article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination; and the Committee on the Rights of the Child, established pursuant to article 43 of the Convention on the Rights of the Child. On 1 July 2003, a seventh human rights treaty will enter into force, namely the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
ICCPR, arts. 28–34 prescribe the procedures for selection of committee members. Members are nationals of states parties to the Covenant, are qualified to serve by virtue of their high moral character and recognized competence in the field of human rights, and serve in their personal capacity (art. 28). Members are elected by secret ballot (art. 29) in a meeting of states parties (art. 30). The Committee includes no more than one national of the same state (art. 31). Members are elected for terms of four years and may be reelected (art. 32).
ICCPR, art. 40(4).
ICCPR, art. 40(4).
For instance, General Comment 22 (1993) deals with ICCPR, art. 18 (freedom of thought, conscience and religion).
General Comment 24 (1994) deals with reservations to the Covenant.
The subject matter of General Comment 15 ( 1986) is the rights of aliens as addressed by various substantive provisions of the ICCPR.
As of May 2003, the total number of general comments issued by the Human Rights Committee is thirty, some of which, however, replace an earlier general comment.
See Optional Protocol to the International Covenant on Civil and Political Rights, arts. 1–5 (hereafter Optional Protocol).
As of 2 May 2003, 104 states had ratified the Optional Protocol, leaving forty-five states that had ratified the Covenant but not the Optional Protocol. See note 1.
Optional Protocol, art. 2.
Ibid., arts. 1,2.
Ibid., art. 5.
Rules of Procedure of the Human Rights Committee, rule 94, UN Doc. CCPR/C/3/Rev.6.
The remedy might include, for instance, the release of a detained person, the commutation of a death sentence or compensation. Over the years, the Committee’s statements on “effective remedy” have undergone a development towards more and more concrete pronouncements. Although the Committee still has not started to give its opinion as to the specific amount of compensation, an important step in this direction was taken in the case of Vladimir Petrovich Laptsevich v. Belarus, Comm. No. 780/1997 (UN Human Rights Committee, 13 April 2000).
including the UN High Commissioner on Human Rights , the Netherlands Human Rights Institute SIM , and the University of Minnesota . The same websites also include collections of concluding observations and Optional Protocol cases by the Human Rights Committee. At the time of writing this chapter (October 2000), the SIM website was the most useful website, due to its broad coverage and developed search functions.
For a more thorough analysis of General Comment 22, see Bahiyyih G. Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Protection (Boston: Martinus Nijhoff, 1996).
Human Rights Committee General Comment 22, para. 2.
Ibid.
Ibid., para. 9.
Human Rights Committee General Comment 22, para. 4.
Rights of political participation.
Human Rights Committee General Comment 22, para. 5.
Ibid., para. 8.
See ICCPR, arts. 12,13,14(1), 19, 21, 22.
Human Rights Committee General Comment 22, para. 8.
Ibid., para. 6.
Ibid.
Ibid., para. 11.
William Eduardo Delgado Paez v. Colombia, Comm. No. 195/1985 (UN Human Rights Committee, 12 July 1990).
Ibid., para. 5.7.
M.A.B., W.A.T. and J. A.Y.T. v. Canada, Comm. No. 570/1993 (UN Human Rights Committee, 25 April 1994).
Coeriel et al. v. The Netherlands, Comm. No. 453/1991 (UN Human Rights Committee, 31 October 1994).
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” (ICCPR, art. 17[1]).
Coeriel et al. v. The Netherlands, para. 6.1.
Ibid., para. 10.5.
K. Singh Bhinder v. Canada, Comm. No. 208/1986 (UN Human Rights Committee, 9 November 1989).
“All persons are equal before the law and are entided 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, art. 26).
K. Singh Bhinder v. Canada, para. 6.2.
Clement Boodoo v. Trinidad and Tobago, Comm. No. 721/1996 (UN Human Rights Committee, 2 April 2002).
Ibid., para. 6.6.
Hartikainen et al. v. Finland, Comm. No. 40/1978 (UN Human Rights Committee, 9 April 1981).
Arieh Hollis Waldman v. Canada, Comm. No. 694/1996 (UN Human Rights Committee, 3 November 1999).
Ibid., para. 10.4.
Ibid., para. 10.6. In a concurring individual opinion, the author of the present chapter elaborates on what kind of criteria should be applied to determine in which situations states have funding obligations in relation to religious minority education (ibid., Individual Opinion, M. Scheinin [concurring]).
Malcolm Ross v. Canada, Comm. No. 736/1997 (UN Human Rights Committee, 18 October 2000).
Ibid., para. 16.8.
L.T.K. v. Finland, Comm. No. 185/1984 (UN Human Rights Committee, 9 July 1985).
Ibid., para. 5.2.
Godefriedus Maria Brinkhof v. The Netherlands, Comm. No. 402/1990 (UN Human Rights Committee, 30 July 1993).
Ibid., para. 9.3. Other cases related to alleged discrimination of conscientious objectors include Jârvinen v. Finland, Comm. No. 295/1988 (UN Human Rights Committee, 25 July 1990), where a longer term for conscientious objectors compared to military service was found to rest on objective and reasonable grounds. In a series of later cases against France, however, a violation of article 26 was established. See Foin v. France, Comm. No. 666/1995 (UN Human Rights Committee, 9 November 1999). The term of alternative service was 24 months, compared to then applicable 12 months in military service. The Committee reasoned: [T]he law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service. (Foin v. France, para. 10.3)
In Foin v. France, paragraph 10.3 the state party argues “that doubling the length of service was the only way to test the sincerity of an individual’s convictions” and did not, in the Committee’s opinion, satisfy the requirement of reasonable and objective criteria. See also Maille v. France, Comm. No. 689/1996 (UN Human Rights Committee, 31 July 2000), and Venier and Nicolas v. France, Comm. Nos. 690 and 691/ 1996 (UN Human Rights Committee, 10 July 2000).
Westerman v. The Netherlands, Comm. No. 682/1996 (UN Human Rights Committee, 3 November 1999).
“[Insurmountable objections of conscience to performing military service in person, because of the use of violent means” (ibid., para. 6.5).
Ibid., para. 9.5.
Ibid., dissenting opinion of P. Bhagwati, L. Henkin, C. Medina Quiroga, F, Pocar, M. Scheinin; ibid., dissenting opinion of H. Solari Yrigoyen.
Ilmari L¨¤nsman et al. v. Finland, Comm. No. 511/1992 (UN Human Rights Committee, 8 November 1994).
“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 practice their own religion, or to use their own language” (ICCPR, art. 27).
Francis Hopu and Tepoaitu Bessert v. France, Comm. No 549/1993 (UN Human Rights Committee, 29 July 1997).
Ibid., para. 4.3.
Ibid., para. 10.3.
“It transpires from the authors’ claims that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life” (ibid., para. 10.3).
UN Human Rights Committee, 61st session, Concluding Observations of the Human Rights Committee: Senegal, UN Doc. CCPR/C/79/Add.82, views adopted on 19 November 1997, para. 17.
UN Human Rights Committee, 60th session, Concluding Observations of the Human Rights Committee: Slovakia, UN Doc. CCPR/C/79/Add.79, views adopted on 18 August 1998, para. 21.
UN Human Rights Committee, 61st session, Concluding Observations of the Human Rights Committee: Sudan, UN Doc. CCPR/C/79/Add.85 views adopted on 19 November 1997, para. 23.
UN Human Rights Committee, 63d session, Concluding Observations of the Human Rights Committee: Israel, UN Doc. CCPR/C/79/Add.93, views adopted on 18 August 1998, paras. 12, 28.
UN Human Rights Committee, 67th session, Concluding Observations of the Human Rights Committee: Norway, UN Doc. CCPR/C/79/Add.ll2, views adopted on 5 November 1999, para. 13.
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Scheinin, M. (2004). The Human Rights Committee and Freedom of Religion or Belief. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_8
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