5 March 2012
Mr. President, distinguished delegates, ladies and gentlemen,
It is a privilege and an honour to be here and have this interactive dialogue with you.
In my practical work as Special Rapporteur I am frequently confronted with issues of “recognition” of religious or belief communities. I have therefore decided to use the opportunity of the 2012 annual report to the Human Rights Council to contribute to a clarification of this crucial concept. Such clarification is not a purely academic project, because misunderstandings concerning the role of States in this regard can negatively affect the implementation of freedom of religion or belief or even undermine its status as a universal human right. In the following paragraphs, I distinguish between three different meanings of “recognition” which relate to different levels of the conceptualization and implementation of freedom of religion or belief.
1. Due respect for the status of rights holders
The first and most fundamental dimension is “recognition” in the sense of due respect for the status of all human beings as rights holders in the area of freedom of religion or belief. We should recall that the term “recognition” already occurs at the very beginning of the key document of international human rights protection, i.e. the 1948 Universal Declaration of Human Rights. The preamble of the Universal Declaration of Human Rights starts by postulating that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. The term “recognition” as used in this context represents the insight into the axiomatic status of human dignity on which the entire system of human rights protection is based. This dignity is further said to be “inherent” in all human beings, which means it has a normative rank prior to, and independent of, any acts of State approval.
As a universal human right, the right to freedom of thought, conscience, religion or belief must be interpreted strictly in keeping with the opening sentence of the Universal Declaration of Human Rights and similar provisions. Thus, it is not that the State could “grant” certain individuals or groups of individuals this right. Rather, it is the other way around in that the State has to respect everyone’s freedom of religion or belief as an inalienable, and thus non-negotiable, entitlement of human beings all of whom have the status of rights holders in international law. The starting point for defining the application of freedom of religion or belief must therefore be the self-understanding of human beings – i.e. all of them – in the area of religion or belief. Such self-understandings obviously can be very diverse. As the Human Rights Committee has rightly pointed out in its General Comment No. 22, freedom of religion or belief should therefore be broadly construed so as to protect “theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief”. I clearly subscribe to this wide understanding which appropriately reflects respect for the status of all human beings as rights holders by virtue of their human dignity. I would also like to reiterate that freedom of religion or belief equally includes followers of traditional and non-traditional religions or beliefs, members of large or small communities, minorities as well as minorities within minorities, converts or re-converts and dissenters or other critical voices. One must also not forget the rights of women who continue to have only marginalized positions within many religious traditions.
However, some States seem to limit freedom of religion or belief to a given list of religious options; while in a number of States only the followers of monotheistic religions can fully enjoy their religious freedom, other States take concepts like “traditional religions”, “patriotic religious associations” or “known religions” as the starting point, with the result that members of lesser known, new or alternative communities are officially excluded from the full and equal protection of their freedom of religion or belief or are discriminated against. In some States, the enjoyment of freedom of religion or belief is limited to mainstream manifestations of religions, at the expense of members of so called “heterodox” currents within those religions. Other States have resorted to a differentiation between “religions” and “sects” to exclude members of small communities from the protection of freedom of religion or belief. Moreover, a few States still make citizenship dependent on affiliation with a particular religion or deny members of non-recognized religions access to official documents.
2. Fair provision of legal personality status
The second dimension of “recognition” relevant in the field of freedom of religion or belief pertains to the status of a legal personality, which religious or belief communities may require to be able to exercise important collective functions. While the axiomatic status position of human beings as rights holders in the area of freedom of religion or belief has a normative rank prior to, and independent of, any administrative procedures, some such procedures are generally required as a prerequisite for groups obtaining the status of a legal personality. Administrative decisions in this area should not be misconceived as acts of mercy, however. Under international law, States are obliged to take an active role in facilitating the full enjoyment of human rights, including freedom of religion or belief.
Unfortunately, my mandate has received numerous complaints that registration procedures have been used as a means to limit the right to freedom of religion or belief of members of certain religious or belief communities. In some States, certain communities are de facto or even de jure excluded from the possibility of obtaining the status of a legal person or suffer from discriminatory treatment in this regard. Unregistered religious or belief communities typically encounter huge difficulties when trying to organize their community life in a stable environment and with a long-term perspective. They cannot open bank accounts or engage in financial transactions. As a result, the ownership of places of worship frequently remains precarious and the construction of places of worship seems hardly conceivable under such insecure circumstances. Communities lacking legal personality status are also faced with additional obstacles when trying to establish private denominational schools. This in turn may have negative repercussions for the rights of parents or legal guardians to ensure that their children receive religious and moral education in conformity with their own convictions. It may be even more difficult to establish institutions of higher education, including theological training institutes, which are vital to intellectually further develop and convey the tenets of their faith to the next generation. In some situations, the denial of legal personality status can seriously jeopardize the long-term survival chances of a religious or belief community.
Hence it is for these reasons that the Human Rights Council and the General Assembly have repeatedly urged States to step up their efforts to protect and promote freedom of thought, conscience and religion or belief and, to this end “to review, whenever relevant, existing registration practices in order to ensure that such practices do not limit the right of all persons to manifest their religion or belief, either alone or in community with others and in public or private”. Even though a standard procedure for all States does not exist, such domestic procedures should always be established and implemented in the service of the human right to freedom of religion or belief. From this it follows that any procedures for the registration of religious or belief communities as legal persons should be quick, transparent, fair, inclusive and non-discriminatory. At the same time, if some communities, for whatever reason, prefer not to obtain such a status and generally wish not to be registered as a legal entity by the State, such a decision clearly deserves respect and should not be penalized.
3. The issue of privileged status positions for certain religious or belief communities
While States have a clear human rights obligation to offer the possibility for religious or belief communities to obtain the general status of a legal personality, the provision of more specific status positions on behalf of religious or belief communities does not directly follow from the human right to freedom of religion or belief. Many States do provide for specific status positions to be accorded to religious or belief communities or – in most cases – to only some of them. Such a status position typically goes beyond the general possibilities attached to the status of a legal personality and may include practical privileges, such as tax exemption, financial subsidies, or membership in public broadcasting agencies. The term “recognition” is often used with reference to such a privileged status position which some denominations may enjoy while others might be excluded from it.
Moreover, quite a number of States have established an official State religion, a status position often even enshrined in State Constitutions. The practical implications of the establishment of a State religion can be very different, ranging from a more or less symbolic superior rank of one religion to rigid measures aimed at protecting the predominant role of the State religion against any denominational competition or against public criticism. Providing some denominations with a privileged status position or establishing an official State religion is sometimes part and parcel of a State policy of fostering national identity. Ample experience shows, however, that such policies harbour serious risks of discrimination against minorities, for instance, members of immigrant religious communities or new religious movements.
I would like to reiterate in this context that while the notion of State religion is not per se prohibited under international human rights law, States have to ensure that this does not lead to a de jure or de facto discrimination of members of other religions or beliefs. As the Human Rights Committee has clearly stated in its General Comment No. 22, “the fact that a religion is recognized as a State religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers.”
However, it seems difficult, if not impossible, to conceive an application of the concept of an official State religion that in practice does not have adverse effects on religious minorities, thus discriminating against their members. As previous mandate-holder, the late Abdelfattah Amor, has persuasively pointed out in this context, “to the extent that everything ultimately depends on the goodwill of the State, the personality of those in office at any given moment, and other unpredictable or subjective factors, there is no serious guarantee in law that the State will at all times respect minority ethnic and religious rights”. When the State itself announces its religion in the Constitution, the law arguably ceases to reflect the ethnic and religious diversity of the society, opening the floodgates to arbitrary action and religious intolerance. Furthermore, if one religion is recognized as a State religion, then women belonging to religious minorities, or those who do not follow the mainstream interpretation of the State religion, may face aggravated discrimination, for example when the State or society seeks to impose its view of women.
No doubt, all of the three mentioned dimensions are relevant for the implementation of the right to freedom of religion or belief. However, they have different implications for the role of the State in the following regard. While the status of all human beings as rights holders cannot legitimately become a matter of administrative “recognition procedures”, some procedures may indeed seem necessary to provide certain religious or belief communities with the status of a legal personality. However, given the practical significance of such a legal personality status for the full enjoyment of freedom of religion or belief, States should ensure that the respective procedures are quick, transparent, fair, inclusive and non-discriminatory. Lastly, unlike the general status of a legal personality, the granting by States of a more specific legal position connected with some practical advantages such as tax exemption or financial subsidies does not necessarily follow from the right to freedom of religion or belief. Whenever States decide to offer such a position, they should do this in accordance with the principles of equality and non-discrimination.
Finally, let me take the opportunity to express my deep gratitude to the various interlocutors from Governments, religious or belief communities, civil society and others for their precious inputs. I am particularly grateful to the Governments of Paraguay and of the Republic of Moldova for their excellent cooperation during the two country visits which I conducted last year (the mission reports are A/HRC/19/60/Add.1 and A/HRC/19/60/Add.2, respectively).