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Framework for Communications - V 2

CROSS-CUTTING ISSUES

Limitation

ICCPR

Art. 18 (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."

CRC

Art. 14 (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."

Migrant Workers Convention

Art. 12 (3) : "Freedom to manifest one's religion or belief 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."

Commission on Human Rights resolution 2005/40

12 : The Commission on Human Rights, " Further emphasizes that, as underlined by the Human Rights Committee, restrictions on the freedom to manifest religion or belief are permitted only if limitations are prescribed by law, are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others, and are applied in a manner that does not vitiate the right to freedom of thought, conscience and religion;".

Human Rights Committee general comment 22

Para . 8 : "Article 18.3 permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education cannot be restricted. In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. [.]".

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Excerpts of relevant paragraphs of 20 years mandate reporting practice (1986-2006)

A/51/542/Add.1, para. 133 (country visit to Greece):

"133. In that regard, from a constitutional point of view, although freedom of conscience is guaranteed, the Special Rapporteur notes that there are limitations on freedom of worship which are inconsistent with internationally established human rights norms. Article 13 of the Constitution limits freedom of worship to "known" religions, but the lack of any legal definition of the concept of "known religion" seems to be prejudicial; in particular, it does not seem to be in accord with the legal restrictions on religious freedom provided for in article 1, paragraph 3, of the 1981 Declaration. The Christian religious minorities are particularly affected by this situation; their legal recognition is often called in question, mainly in connection with matters relating to places of worship and conscientious objection. The Special Rapporteur recommends that the concept of a "known religion" should be defined precisely - either in the Constitution or, failing that, in legislation - in a manner consistent with the legal restrictions provided for in the 1981 Declaration; alternatively, if appropriate, the concept should be eliminated altogether."

E/CN.4/1999/58/Add.2, paras. 102-103 (country visit to Vietnam):

"102. However, whereas the two international instruments list the restrictions necessary for public safety, order, health or morals, or the fundamental rights and freedoms of others, article 70 of the Constitution also refers to "the policies of the State". The concept of policy of the State appears, at first glance, to be quite vague and extendable: it may of course include State policies designed to guarantee public safety, order, health or morals, or the fundamental rights and freedoms of others, but it can also go further, to include restrictions not provided for under international law.

103. Even greater concern is raised by article 4 of the Constitution, which sets forth the principle of the Vietnamese Communist Party as the "guiding force" of the State and of society (para. 9). State policies are therefore those of the Communist Party, which has its own ideology with regard to religion, initially perceiving religion to be the opium of the people and therefore to be combated, and later evolving towards a special recognition of religion. In this connection, the Directive of 2 July 1998 recognizes religious belief as fulfilling a spiritual need and establishes guidelines for its control."

A/55/280/Add.1, para. 125 (country visit to Turkey):

"124. The Special Rapporteur is pleased to note that Turkey's legislation, and particularly its constitutional legislation, provides absolute guarantees of freedom of religion and belief and protects its manifestations (in particular freedom of worship), while imposing certain limitations (article 14).

125. Some of these constitutional limitations contain vague expressions that lend themselves to very broad interpretation which, in turn, may lead to extensive intervention by the State and hence excessive restrictions on freedom of religion and belief. This applies to the expression "violating the indivisible integrity of the State with its territory and nation" as well as the phrase "destroying fundamental rights and freedoms".

126. The Special Rapporteur recommends that precise terminology be devised and that legislation, including constitutional provisions, be interpreted in a manner consistent with international standards of human rights and with the jurisprudence and general comments of the United Nations Human Rights Committee. The Committee, in its General Comment No. 22 (48) of 20 July 1993, on article 18 of the International Covenant on Civil and Political Rights, declared that restrictions on the freedom to manifest religion or belief are permitted only if they are prescribed by law, are necessary to ensure public safety, order, health or morals, or the fundamental rights and freedoms of others, and are applied in a manner that does not vitiate the right to freedom of thought, conscience and religion. The Committee has also stated that restrictions must only be applied for the purposes for which they were prescribed and they must relate directly to the specific objective they are to serve, and be proportional to that objective. Restrictions may not be imposed for discriminatory purposes or in a discriminatory manner."

A/60/399, para. 62:

"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."

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