International standards I3f
|FREEDOM OF RELIGION OR BELIEF
f) Teaching and disseminating materials (including missionary activity)
1981 Declaration of the General Assembly
Art. 6 (d) : The right to freedom of thought, conscience, religion or belief includes the freedom, "To write, issue and disseminate relevant publications in these areas;".
Art. 6 (e) : The right to freedom of thought, conscience, religion or belief includes the freedom, "To teach a religion or belief in places suitable for these purposes."
Commission on Human Rights resolution 2005/40 (paragraph 4 (d)) and
Human Rights Council resolution 6/37 (paragraph 9 (g))
Urges States, "To ensure, in particular, [...] the right of all persons to write, issue and disseminate relevant publications in these areas".
Human Rights Committee general comment 22
Para . 4 : "In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, [.] the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications."
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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)
A/51/542/Add.1, paras. 11-12 and 134 (country visit to Greece):
11. Article 13, paragraph 2, of the Constitution provides that proselytism in general - theoretically with respect to any religion whatsoever - is prohibited. The Constitution does not define the concept of proselytism. According to the Ministry of Justice, this prohibition applies to proselytism of a negative sort, and not to the dissemination of religious beliefs, which supposedly makes it possible to safeguard religious freedom from any dangerous religion.
12. The Special Rapporteur notes that proselytism is itself inherent in religion, which explains its legal status in international instruments and in the 1981 Declaration. However, proselytism is punishable under two "Necessity Acts", Act No. 1363/1938 and Act No. 1672/1939 promulgated during the dictatorship of General Metaxas (see chap. I.B, "Legislation on proselytism,") and their impact on religion in general and on religious minorities is of considerable concern (see chap. II). [...]
134. The Special Rapporteur considers the constitutional provisions prohibiting proselytism to be inconsistent with the 1981 Declaration and stresses the need for greater respect for internationally recognized human rights norms, including freedom to convert and freedom to manifest one's religion or belief, either individually or in community with others, and in public or private, except where necessary restrictions are provided for by law. These comments also apply to the Necessity Acts concerning proselytism. Removal of the legal prohibition against proselytism is very strongly recommended. Failing this, proselytism could be defined in such a way as to leave appropriate leeway for the exercise of religious freedom. "
A/60/399, paras. 59-68:
" (b) Missionary activities and propagation of one's religion
59. Article 1 of the 1981 Declaration and article 18, paragraph 1, of ICCPR explicitly provide for the right "in public or private, to manifest [one's] religion or belief in worship, observance, practice and teaching" (emphasis added). Many human rights instruments stipulate and the Human Rights Committee hold that the right to manifest one's religion includes carrying out actions to persuade others to believe in a certain religion. For example, article 6 (d) of the 1981 Declaration states that the practice of the freedom of religion includes the freedom, "to write, issue and disseminate relevant publications [...]." Similarly, in resolution 2005/40 of the Commission on Human Rights urged States "[t]o ensure, in particular, [...] the right of all persons to write, issue and disseminate relevant publications." In its general comment No. 22 (1993) the Human Rights Committee holds that "the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, [… and] the freedom to prepare and distribute religious texts or publications" (para. 4). This thinking is reflected in the above-mentioned decision Kang v. Republic of Korea, where the distribution of communist leaflets was recognized by the Human Rights Committee as the manifestation of a belief in the sense of article 18, paragraph 1.
60. The question of missionary activities and other forms of propagating s religion has been at the centre of the mandate on freedom of religion since the beginning. In one of his reports, Special Rapporteur Amor considered "constitutional provisions prohibiting proselytism to be inconsistent with the 1981 Declaration and stresse[d] the need for greater respect for internationally recognized human rights norms, including freedom to convert and freedom to manifest one's religion or belief, either individually or in community with others, and in public or private, except where necessary restrictions are provided for by law" (A/51/542/Add.1/para. 134).
61. Also, while not explicitly including religious rights, article 19 of ICCPR, which protects freedom of expression, is formulated in a way that also covers missionary activities: "[T]his right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of [one's] choice". The Human Rights Committee's constant jurisprudence has deemed the protection afforded by article 19 extremely strong. [See Manfred Nowak, UN Covenant on Civil and Political Right:, CCPR Commentary (2nd revised ed.), 2005, pp. 450-452.]
62. Whereas the scope of freedom afforded to persons for the practice of their religion or belief by producing and distributing information about their religion or belief is wide, certain limitations can be imposed in accordance with article 18, paragraph 3, of the Covenant. However, it should be noted that this article allows for restrictions only in very exceptional cases. In particular the fact that it mentions the protection of "fundamental rights and freedoms" (emphasis added) of others as a ground for restriction indicates a stronger protection than for some other rights whose limitation clauses refer simply to the "rights and freedoms of others" (e.g. article 12, 21 and 22). It could indeed be argued that the freedom of religion or belief of others can be regarded as such a fundamental right and freedom and would justify limitations to missionary activities, but the freedom of religion and belief of adults basically is a question of individual choice, so any generalized State limitation (e.g. by law) conceived to protect "others'" freedom of religion and belief by limiting the right of individuals to conduct missionary activities should be avoided.
63. The test of legality of a prohibition of any act motivated by belief or religion is therefore extremely strict. In practice, the European Court of Human Rights has given some guidance concerning the distinction between permissible religious persuasion, on the one hand, and coercion on the other in Larissis v. Greece,[Larissis and Others v. Greece, European Court of Human Rights, Reports 1998-I, judgement of 24 February 1998.] the court decided that an officer of the Greek army had exploited his position of authority over his subordinates in trying to convert them. However, in Kokkinakis v. Greece,[Kokkinakis v. Greece, European Court of Human Rights, Series A. No. 260-A, judgement of 25 May 1995.] the Court did not find any violation when Jehovah's Witnesses called on their neighbour to discuss religious issues with her since that act, in the Court's view, fell under "bearing Christian witness" and was therefore protected by article 9 of the European Convention on Human Rights. Judge Pettiti, in his partly concurring opinion, made this particularly clear: "Freedom of religion and conscience certainly entails accepting proselytism, even where it is not respectable. Believers and agnostic philosophers have a right to expound their beliefs, to try to get other people to share them and even to try to convert those whom they are addressing."
64. There are, however, situations in which certain actions aimed at converting people go beyond conventional forms of missionary activities or propagation of religion. Some such actions cannot be considered as a "manifestation" of religion or belief and are therefore not protected by article 18.
65. The question that arises in this regard is how the State should address such actions. The Special Rapporteur is of the opinion that a distinction should be made between whether these actions raise a human rights concern or whether they could constitute criminal acts. Certain acts may constitute an offence under the criminal code of the State concerned and should therefore be prosecuted. In view of the Special Rapporteur, however, it would not be advisable to criminalize non-violent acts performed in the context of manifestation of one's religion, in particular the propagation of religion, including because that might criminalize acts that would, in another context, not raise a concern of the criminal law and may pave the way for persecution of religious minorities. Moreover, since the right to change or maintain a religion is in essence a subjective right, any concern raised with regard to certain conversions or how they might be accomplished should primarily be raised by the alleged victim.
66. Apart from forcible and other conversions that are improper in the sense of human rights law, there are many cases which, while not constituting a human rights violation, nevertheless raise serious concern because they disturb a culture of religious tolerance or contribute to the deterioration of situations where religious tolerance is already being challenged. The Special Rapporteur has received numerous reports of cases where missionaries, religious groups and humanitarian NGOs have allegedly behaved in a very disrespectful manner vis-à-vis the populations of the places where they were operating. The Special Rapporteur deplores such behaviour and is of the opinion that it constitutes religious intolerance, and may even provoke further religious intolerance. She considers that religious groups, missionaries and humanitarian NGOs should carry out their activities in full respect of the culture and religion of the populations concerned and abide strictly by relevant codes of ethics, including the Code of Conduct for International Federation of Red Cross and Red Crescent Societies and NGOs in Disaster Relief, [Available at: www.ifrc.org/publicat/conduct/code.asp.] as well as guidelines adopted by religious organizations.
67. In conclusion, any form of coercion by State and non-State actors aimed at religious conversion is prohibited under international human rights law, and any such acts have to be dealt with within the remit of criminal and civil law. Missionary activity is accepted as a legitimate expression of religion or belief and therefore enjoys the protection afforded by article 18 of ICCPR and other relevant international instruments. Missionary activity cannot be considered a violation of the freedom of religion and belief of others if all involved parties are adults able to reason on their own and if there is no relation of dependency or hierarchy between the missionaries and the objects of the missionary activities.
68. The Special Rapporteur wishes to underline that certain forms of "unethical" conversion are not per se contrary to international standards. Moreover, while some of these acts may not enjoy protection under human rights law, they should not as a result necessarily be seen to constitute a criminal offence. She recommends that cases of alleged "unethical" conversion be addressed on a case-by-case basis, examining the context and circumstances in each individual situation and dealt with in accordance with the common criminal and civil legislation. The Special Rapporteur is therefore of the opinion that the adoption of laws criminalizing in abstracto certain acts leading to "unethical" conversion should be avoided, in particular where these laws could apply even in the absence of a complaint by the converted person."
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