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The Right of Everyone to Change his Religion or Belief – some observations

Published online by Cambridge University Press:  21 May 2009

J.A. Walkate
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Extract

On 25 November 1981 the General Assembly of the United Nations by its Resolution 36/55 adopted the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief (hereinafter referred to as the Declaration). In doing so it has – albeit only partly – fulfilled a wish which it had expressed in 1962 during its 17th Session in a resolution by which the General Assembly requested the Economic and Social Council (ECOSOC) to ask the Commission on Human Rights(the Commission) to prepare a draft declaration on the elimination of all forms of religious intolerance, to be submitted to the Assembly for consideration at its eighteenth session, and a draft international convention on the elimination of all forms of religious intolerance, to be submitted to the Assemblyif possible at its nineteenth session and, in any case, not later than at its twentieth session.

Type
Articles
Information
Netherlands International Law Review , Volume 30 , Issue 2 , August 1983 , pp. 146 - 160
Copyright
Copyright © T.M.C. Asser Press 1983

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References

1. Resolution 1781 (XVII) of 7 December 1962.

2. General Assembly Resolution 217A (III) of 10 12 1948.

3. General Assembly Resolution 2200A (XXI) of 16 December 1966.

4. See for the reports of the Working Group, the reports of the Commission on Human Rights contained in documents: E/5464, p. 18–25 (1974 – 30th Session); E/5635, p. 36–41 (1975 – 31st Session); E/5768, p. 3741 (1976 – 32nd Session); E/5927, p. 43–48 (1977 – 33rd Session); E/1978/34, p. 56–65 (1978 – 34th Session); E/1979/36, p. 69–76 (1979 – 35th Session); E/1980/13, p. 108–118 (1980 – 36th Session); E/1981/25, p. 138–154 (1981 – 37th Session).

5. Draft Article VI, paragraph (f) en (i) in the Working Group's report read as follows:

”Article VI

In accordance with Article I, and subject to the provisions of paragraph 3 of Article I, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms:

(f) To solicit and receive voluntary financial and other contributions from individuals and institutions [designed solely for the purpose of supporting a religion or belief and not motivated by any political aim];

(i) [To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels].”

6. Resolution 20 (XXXVII) of 10 March 1981.

7. Resolution 1981/36 of 8 May 1981.

8. UN document A/C.3/36/SR. 27–37 and 43.

9. The text of preambular paragraph 2 and of Article 1 as adopted by the Commission and the Council read as follows:

”Considering that the Universal Declaration of Human Rights and the International Covenants on Human Rights proclaim the principles of non-discrimination and equality before the law and the right to freedom of thought, conscience, religion and belief, including the right to choose, manifest and change one's religion or belief,”

“Article I

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.

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.

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”.

10. E.g., Iran, Iraq, Jordan, Libyan Arab Jamahiriya, Morocco, Senegal, Syrian Arab Republic, Tunisia; UN doc. A/36/455 of 25 September 1981.

11. The Netherlands proposal read as follows:

”There shall be no restriction upon and derogation from any of the provisions of the International Covenant on Civil and Political Rights or any other international instrument relating to the elimination of all forms of intolerance and of discrimination based on religion or belief on the pretext that the present declaration does not recognize such rights or that it recognizes them to a lesser extent.”

This proposal had been put forward to counter a proposal submitted by the Byelorrussian SSR which read as follows:

”Nothing in this, or any other, article of the Declaration shall be interpreted as affecting, modifying or adding to the provisions of the International Covenant on Civil and Political Rights or any other international instrument relating to the elimination of all forms of intolerance and of discrimination based on religion or belief.”

As a trade-off both proposals were withdrawn; see UN doc. E/1981/25, p. 149,150.

12. It had been a long time wish of the Eastern European delegations to include a reference to atheistic beliefs in the text. This has always been found unacceptable by delegations of Islamic countries and has been considered as unnecessary by delegations from Western countries because the word belief in itself includes all sorts of beliefs, such as theistic, atheistic, nontheistic, etc.

13. Resolution 36/55.

The changes brought about in the text as it appears in the draft annexed to Commission Resolution 20 (XXXVII) are the following:

– preambular paragraph 2: deletion of the words “… including the right to choose, manifest and change one's religion or belief at the end of the paragraph (it was the preference of the Western Group to delete the whole phrase rather than the word “change” only);

– preambular paragraph 3: addition of the word “whatever” before “belief”

– Article I: deletion of the words “or to adopt” in paragraphs 1 and 2;

– Article I: addition of the word “whatever” before “belief” in paragraph 1, second sentence;

– Article VIII: new article containing the safeguard clause as originally proposed by the Netherlands in the Commission on Human Rights.

14. In the Committee delegations from the following Member-States made an explanation of vote: China, Egypt, Iraq (on behalf of the Organization of the Islamic Conference), Romania, Poland, GDR, Mexico, Syria, Vietnam, USSR, Bulgaria, Sweden, Australia, Ethiopia, Czechoslavakia, Cuba (UN doc. A/C.3/36/SR.43). In the Plenary: Netherlands, Indonesia, UK (on behalf of the Member States of the European Communities), Iran (UN-doc. A/36/PV. 73).

15. UN doc. A/C.3/36/SR.43, paragraph 51 (delegation of Iraq).

16. For the description of the legislative history of Article 18 of the Universal Declaratio and Article 18 of the Covenant I benefited greatly from: Th.C. van Boven, ”De Volkenrechte lijke Bescherraing van de Godsdienstvrijheid” (The protection of religious freedom by international law), Assen, 1967 (in Dutch) and from UN doc. A/2929 containing the annotations on the draft Covenant prepared by the Secretary-General (1955);

17. Official Records, General Assembly, Third Session, Part I, Third Committee, pp. 390–480.

18. Official Records General Assembly, Third Session, Part I, Plenary, pp. 913–933.

19. UN document E/2256, Annex I, Article 13.

20. Official Records General Assembly, Fifteenth Session (Patt I), Third Committee, pp. 197–228.

21. The Proclamation was adopted by the International Conference on Human Rights at Teheran, 13 May 1968; See UN doc. ST/HR/1/Rev. 1, p. 18.

22. Res. 41/1982 adopted on 11 March 1982 without a vote. Pamphlet Salesno. UN DPI/714–82–20555.

23. Only an interpretative statement on Article 18 has been made by Mexico which is not relevant in the context of this paper.

24. Official Records General Assembly, Twenty-First Session, vol. 111, 1496th meeting, p. 6. See also footnote 20 supra.