Framework for Communications - III 4
Art. 14 (1) : "States Parties shall respect the right of the child to freedom of thought, conscience and religion."
Art. 14 (2) : "States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child [.] (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;".
Art. 30 : "In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language."
1981 Declaration of the General Assembly
Art. 5 (3) : "The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men."
Art. 5 (5) : "Practices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development, taking into account article 1, paragraph 3, of the present Declaration."
[Go back to the Framework for communications]
Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)
E/CN.4/1987/35, paras. 67-71:
"67. As far as the organization of family life in accordance with the religion or belief chosen is concerned, and bearing in mind, as specified in article 5, paragraph 1, the moral education in which the parents or legal guardians believe the child should be brought up, several examples clearly show that this principle is not always respected. In a certain country, for instance, parents belonging to a particular ethnic and religious community are forcibly prevented, in spite of their beliefs, from performing certain rites on their children, such as the circumcision of male children, or from giving them names in keeping with their religious traditions. In another country, girls from families of a certain religious minority are sometimes forced, against the wishes of their families and their own will, to marry members of the majority religion and to adopt their faith. A further example is provided by a country where the members of an unrecognized religious community, unable to assert, in the eyes of the authorities, the legitimacy of the marriage ceremony performed in accordance with their religious rites, are in an irregular legal situation, their children being regarded as illegitimate. In the same country, several cases have been reported of the forcible abduction from their parents of children belonging to this religious community. In another country, it would appear that the authorities have separated children from parents belonging to a religious sect not officially registered, in order to prevent parents from bringing up their children in accordance with their religious beliefs.
68. The right of children to have access to education in the matter of religion or belief in accordance with the wishes of his parents or guardians is frequently infringed. Thus, in several countries, the State places certain restrictions on the enjoyment of this right. In one case, religious instruction for children is tolerated only in private within the family; restriction also occur in practice when, for instance, the teaching of the religious language of a minority is not tolerated officially for the members of this religious minority. In another case, religious instruction is strictly controlled by the authorities. Elsewhere, a ministerial decision stipulates that no religious school offering instruction in the precepts of a particular faith may function until it has been assigned a specific location and obtained ministerial permission, and that all such schools are subject to control by the authorities. In another country, the local publication or importation of holy writings forming the basis of religious instruction is forbidden. In yet another country, the ban on all administrative and community activities relating to a particular faith has brought about the dissolution of the classes in which the followers of this faith taught children the principles and precepts of their religion.
69. Sometimes, children are not only denied access to the religious education in accordance with the choice of their parents, but are also compelled to receive teaching on a religion or belief against their wishes. Thus, in several countries, an attempt is being made to inculcate in children, within the general framework of school programmes, values inherent in a particular ideology or belief, which may be incompatible with the religious beliefs of the parents. Religious indoctrination may at times be taken to an extreme degree. In one country, pupils belonging to a outlawed religious community were abducted by their religious education instructors in school, where instruction is given on the officially recognized faith, and forcibly converted to that faith. In another country, pupils belonging to a religious minority were compelled to attend religious instruction courses in a faith different from their own. Finally, there is the case of a country where religious instruction was made compulsory in kindergarten, arousing protests from many educational organizations.
70. As far as the provisions of article 5, paragraph 3, of the Declaration are concerned, it has already been possible to conclude, when studying a number of examples of discriminatory treatment based on religion or belief, that the children of believers are subject to discrimination of various kinds, such as ill-treatment and humiliation at school, expulsion from school or a ban on embarking on higher education, pressure to deny their faith, and even in certain extreme cases imprisonment, torture and summary execution.
71. The tacit or explicit encouragement of the authorities of certain countries to denigrate the values and ideas embraced by certain religions or beliefs has already been mentioned. It is obvious that such conduct is hardly compatible with the provisions of article 5, paragraph 3, of the Declaration concerning education based on understanding, tolerance and respect for freedom of religion or belief of others."
E/CN.4/2002/73/Add.2, paras. 104-110:
"1. Female genital mutilation
104. Of all practices harmful to the health of women, the most known and the most publicized in the media is female genital mutilation or female circumcision or excision. It has long received the attention of international human rights organizations and bodies and is one of the main focuses of the mandate of the Special Rapporteur on traditional practices affecting the health of women and children. It involves removal of all or part of the female genital organs. WHO figures quoted by the Special Rapporteur indicate that there are estimated to be between 85 and 115 million sexually mutilated women and girls in Africa and Asia. According to the same sources, two million girls are at risk of undergoing genital mutilation each year (E/CN.4/Sub.2/1995/6, par. 21). This practice, whose forms vary from country to country, is reportedly prevalent in 26 African countries, in countries of Asia and among immigrant communities in Europe and America and also in Jewish Ethiopian and Bedouin communities in Israel. [See report on traditional practices … (E/CN.4/Sub.2/1998/11, paras. 55, 56 and 59).]. Yet the historical origins of female genital mutilation are shrouded in mystery. What seems certain is that the practice, which has stood the test of time, is not linked to any particular religion. It is thought to have been invented by the Pharaohs, who performed it to preserve their wife’s chastity when they went to war. It appears to have been practised by the Phoenicians, the Hittites, the Ethiopians, pagan peoples in the tropical zones of Africa and in the Philippines, the Incas in Mexico and ethnic groups in Amazonia and Australia. Some peoples believe that humans are naturally born bisexual. The man’s prepuce has to be removed to give him his masculinity and the woman’s masculine organ, the clitoris, has to be excised to ensure her full femininity. [See Samuel, op. cit. (note 14 above), p. 45. See also the website www.cam.org/~rqasf/sp07_02.html.]. It was apparently also practised by physicians in nineteenth-century Europe to treat mental disorders in women. [See report on traditional practices affecting the health of women and the girl child (E/CN.4/Sub.2/1999/14, paras. 6 and 7).].
105. As observed by the Special Rapporteur on traditional practices, female genital mutilation, which has been performed by peoples and societies across the ages and continents, is rooted more in a “set of beliefs, values and cultural and social behaviour patterns governing the lives of the societies concerned” (E/CN.4/Sub.2/1999/14, para. 8). That no doubt explains the emotional charge surrounding beliefs associated with this practice, the difficulty of speaking about it, including in the countries involved and in relevant international organizations, and hence the need for caution in relation to any measures aimed at its eradication. [On the difficulty of addressing and examining the issue, especially in the context of the Commission on Human Rights, see report on traditional practices … (E/CN.4/Sub.2/1999/14, paras. 10 ff.).]
106. Female genital mutilation is today practised by diverse communities belonging to different religious traditions. [See, inter alia, the examples of the Sudan, Mali, the Central African Republic and Côte d’Ivoire in Th. Lococh, “Pratiques, opinions et attitudes en matière d’excision en Afrique”, Revue Population, 1998, No. 6, p. 1,227. Regarding Cameroon, see Report of the Human Rights Committee (A/55/40, vol. I, para. 197).]. Its most extreme form, infibulation or Pharaonic circumcision, entails the removal of the clitoris and labia minora. This form, which is considered the most cruel and most harmful to the health of girls, [In some cultures, the labia minora are fastened together by means of thorns, silk thread or slivers of wood. The girl has to lie out, legs bound, for forty days to enable scar tissue to form. A tiny opening is retained to allow the passage of urine and menstrual blood. On the wedding night, the woman is opened up by her husband. Women are often reinfibulated after giving birth for as long as the husband so demands.] is believed to be practised in Somalia, Djibouti, the Sudan, Mali, Egypt and Ethiopia. Partial excision or clitoridectomy or Sunna circumcision is reportedly practised in West, Central and East Africa. [Excision is wrongly called female “circumcision”. The clitoris is not a piece of skin but a vital part of the female genital organs. The only conceivable masculine equivalent would be removal of the penis!]. Asian countries such as Yemen, Indonesia and Malaysia practise female excision but certain communities follow a symbolic ritual and in some cases make a simple incision without carrying out any mutilation. [See report on traditional practices … (E/CN.4/Sub.2/1999/14, para. 36).].
107. The age at which female genital mutilation is carried out varies between countries and cultures. In the case of Falasha Jews in Ethiopia and the Sudan, it appears to be when an infant is a few days old, while in many countries the age is between 7 and 15 years depending on the rituals involved, which are sometimes complex. Female genital mutilation is regarded as a rite of passage from childhood to womanhood, i.e. initiation into adulthood, or as a means of reducing sexual desire and preserving the virginity of future brides. In some communities it is viewed as a rite of purification. [Including among Bedouin tribes in the south of Israel. See report on traditional practices … (E/CN.4/Sub.2/1998/11, para. 56).]. Social pressures and cultural constraints often drive girls and their mothers to subject themselves to such practices in order to be fully accepted into their community. [E/CN.4/Sub.2/1995/6, para. 36.]. According to the Special Rapporteur on traditional practices, it appears that differences between countries in the age at which female genital mutilation takes place are linked to the existence or otherwise of legislation banning the practice. [Ibid., paras. 22 and 23.]. In other countries, it is reported to have totally disappeared as a result of girls’ development and education. [For example, in Qatar (E/CN.4/Sub.2/1998/11, para. 66).].
108. Female genital mutilation is wrongly associated with religion, in particular Islam. No religious text requires believers to perform it. It appears to be practised by peoples of different religions, including Muslims, Catholics, Protestants, Copts, Jews and animists, and non-believers. [See the website www.cam.org/~rqasf/sp07_02.html.]. It is one of many examples showing that the argument of cultural or religious diversity can be both dangerous and erroneous. When practised by Muslims, female genital mutilation is presented and asserted as a religious act. [This is the case, for example, in the Sudan (see note 11 above).]. The practice is, however, common among non-Muslims and many Muslim communities are not only unaware of it but also shocked at the idea that it can even remotely be regarded as having a basis in religion. [The same reasoning can be transposed to other practices such as dowry, polygamy, treatment of adulterous women, etc.].
109. In Egypt, because of religious extremism, a 1996 Ministry of Health decree banning the medical profession from practising female genital mutilation was revoked in 1997 by an administrative court. The Council of State finally ruled on the matter in an authoritative decision dated 28 December 1997 rescinding the lower court’s decision and stating that it was “henceforth prohibited to practise excision even in cases where the girl and her patents give their consent.” “Circumcision of girls is not a right of the individual under the Sharia …; nothing in the Koran authorizes it” (E/CN.4/Sub.2/1999/14, para. 41). Such a decision obviously has important implications since the ban applies even in the case of the victim’s or her parents’ consent. This is in fact an issue of public policy which conflicts with harmful cultural traditions. Moreover, the Council of State clearly distinguished between religious prescriptions and harmful cultural traditions based on misinterpretation or political manipulation of religion.
110. Female genital mutilation has serious effects on women’s health and lives. It carries a high risk of death or disability and often causes vaginal haemorrhage and many genito-urinary and obstetric complications as well as long-term psychological problems. [See report of CEDAW (A/54/38/Rev.1, para. 12) and preliminary report of the Special Rapporteur on traditional practices … (E/CN.4/Sub.2/1995/6, para. 45).]. Its practice and that of polygamy or marital rape also expose girls and women to an increased risk of contracting HIV/AIDS and other sexually transmitted diseases (A/54/38/Rev.1, para. 18)."
A/60/399, paras. 52-54:
"52. [...] Since the choice of religion or belief is part of the forum internum, which allows for no limitations, a general prohibition of conversion by a State necessarily enters into conflict with applicable international standards. A law prohibiting conversion would constitute a State policy aiming at influencing individual's desire to have or adopt a religion or belief and is therefore not acceptable under human rights law. A State also has the positive obligation of ensuring the freedom of religion or belief of the persons on its territory and under its jurisdiction.
53. In the cases where non-State actors interfere with the right to "have or adopt a religion or belief of [one's] choice", the requirements of article 18 of the Covenant and other relevant international instruments also entail a positive obligation for the State to protect persons from such interference. The Special Rapporteur wishes to re-iterate in this regard that States must ensure that the persons on their territory and under their jurisdiction, including members of religious minorities, can practise the religion or belief of their choice free of coercion and fear. If non-State actors interfere with this freedom, and especially the freedom to change or to maintain one's religion, the State is obliged to take appropriate measures to investigate, bring the perpetrators to justice and compensate the victims (see also E/CN.4/2005/61, para. 42).
54. Finally, the Special Rapporteur notes that with regard to children, the choice of religion is restricted by the parents' rights to determine their child's religion up to an age where the child is capable of doing so on his/her own, in accordance with article 18, paragraph 4, of the Covenant."
E/CN.4/2006/5/Add.4, paras. 98-104 (country visit to France):
"The question of religious symbols in the public school system
98. Law 2004-228 of 15 March 2004 on the wearing of conspicuous religious symbols in public schools is widely supported by the political apparatus as well as by the population. Although the law is intended to apply equally to all persons, the Special Rapporteur is of the opinion that it has mainly affected certain religious minorities, and notably, people of a Muslim background. The Special Rapporteur believes that the wide political support for the law has conveyed a demoralizing message to religious minorities in France.
99. The law is appropriate insofar as it is intended, in accordance with the principle of the best interests of the child, to protect the autonomy of minors who may be pressured or forced to wear a headscarf or other religious symbols. However, the law denies the right of those minors who have freely chosen to wear a religious symbol to school as part of their religious belief.
100. The Special Rapporteur is of the opinion that the direct and, in particular, the indirect consequences of this law may not have been thoroughly considered. Although many interlocutors at the governmental level are satisfied with the results of the implementation of the law, she noticed that the figures are often disputed, including because the criteria used for the assessment vary. Moreover, the Special Rapporteur considers that aside from statistics, the issue is one of principle.
101. The concerns of the Special Rapporteur are more serious with regard to the indirect consequences of Law 2004-228 in the longer term. The implementation of the law by educational institutions has led, in a number of cases, to abuses that have provoked humiliation, in particular amongst young Muslim women. According to many sources, such humiliation can only lead to the radicalization of the persons affected and those associated with them. Moreover, the stigmatization of the headscarf has provoked instances of religious intolerance when women wear it outside school, at university or in the workplace. Although the law was aimed at regulating symbols related to all religions, it appears to mainly target girls from a Muslim background wearing the headscarf.
102. The Special Rapporteur encourages the Government to closely monitor the way educational institutions are implementing the law, in order to avoid the feelings of humiliation that were reported to her during her visit. She also recommends a flexible implementation of the law which would accommodate the schoolchildren for whom the display of religious symbols constitutes an essential part of their faith.
103. In all circumstances, the Government should uphold the principle of the best interests of the child and guarantee the fundamental right of access to education, as has been recommended by several United Nations treaty-monitoring bodies.
104. Moreover, the Government should take appropriate measures to better inform school authorities, and more generally the French population, about the exact nature and purpose of the law. It should be made clear that the wearing or display of religious symbols is an essential part of the right to manifest one's religion or belief that can only be limited under restrictive conditions. The Government should also promptly provide redress in any situation where persons have been the victim of discrimination or other act of religious intolerance because of their religious symbols, including by prosecuting the perpetrators of such acts in the relevant cases."
A/64/159, paras. 25-28 and 68:
“25. Children are also vulnerable with regard to their right to freedom of religion or belief. The mandate has reported on various forms of discriminatory treatment which derive both from governmental actions and from incidents provoked by non-State actors. The Special Rapporteur is concerned at the abuse and violence against children who are accused by their families of witchcraft. She has also been informed of a number of cases where children, especially girls, were allegedly abducted by members of a different religious community, forced into marriage and converted against their will to a different religion. In this regard, she would like to emphasize that no one shall be subject to coercion which would impair his or her freedom to have or to adopt a religion or belief of his or her choice, [International Covenant on Civil and Political Rights, article 18, para. 2.] and that the betrothal or marriage of a child shall have no legal effect.[Convention on the Elimination of All Forms of Discrimination against Women, article 16, para. 2.] As reaffirmed by article 3 of the Convention on the Rights of the Child, the best interests of the child shall be a primary consideration in all actions concerning children.
26. The rights of the child concerning freedom of religion or belief remain a complex issue, especially because they touch upon the position of the child but may also concern his or her parents or legal guardians as well as the religious communities involved. The right of the child to freedom of religion or belief is enshrined in article 14, paragraph 1, of the Convention on the Rights of the Child. The parental rights are immediately reaffirmed in article 14, paragraph 2, which requires States parties to respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right to freedom of thought, conscience and religion in a manner consistent with the evolving capacities of the child.
27. The Special Rapporteur would like to briefly analyse the concept of “evolving capacities” in the context of the child’s right to freedom of religion or belief. Domestic legal provisions differ largely, for example with regard to the competency to decide when children can themselves be able to adopt a different religion or belief of their choice. In some countries, children who have not yet reached the age of 10 years may convert if both of their parents agree to conversion or if the competent court approves conversion upon the application of one of the parents. Some national laws feature staggered age limits, for example, that children who are older than 14 years may decide their religious affiliation for themselves and that a child from the age of 12 onwards cannot be educated under a different religion than previously against his or her will. Other laws set the age of 15 or 16 years as a legal threshold for reaching full religious maturity.
28. In this regard, the Special Rapporteur would like to caution against strict age limits which may not fully take into consideration the maturity and evolving capacities of the child in all cases. Such strict limits may lead to situations where a child is legally considered as mature while this is not yet the case, or where a truly mature child is denied his or her rights for some time. Consequently, the Special Rapporteur would advocate for a case-by-case approach according to the specific circumstances of each situation. This is also supported by article 12, paragraph 1, of the Convention on the Rights of the Child, which requests States parties to assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. [In this regard, see CRC/C/GC/12, paras. 17, 21, 29, 75 and 84.] [...]
68. The situation of children and their freedom of religion or belief also deserve specific mention. In line with the concept of “evolving capacities” of the child and in order to ensure free and informed choices about his or her freedom of religion or belief, the Special Rapporteur would like to highlight the following approaches. Special attention should be paid to encouraging positive attitudes and, in view of the best interests of the child, to supporting parents to exercise their rights and fully play their role in education in the field of tolerance and non-discrimination. [See E/CN.4/2002/73, appendix, para. 9.] Rather than leading to indoctrination, teaching about religions and beliefs should be carried out in a fair and balanced manner. In this regard, the Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools [Prepared by the OSCE/ODIHR Advisory Council of Experts on Freedom of Religion or Belief; text available online at www.osce.org/publications/odihr/2007/11/28314_993_en.pdf.] provide practical guidance for preparing curricula for teaching about religions and beliefs as well as preferred procedures for assuring fairness in the development of such curricula. In addition, States should endeavour to eradicate prejudices and conceptions incompatible with freedom of religion or belief, and to ensure respect for and acceptance of pluralism and diversity in the field of religion or belief.”
[Go back to the Framework for communications]