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The collective aspect of freedom to manifest religion or belief

Rights Rights and Freedoms
Saturday 18 May, 2013

Article 18 of the ICCPR explicitly includes the freedom to manifest beliefs ‘in community with others’.  

As prominent human rights scholar Yoram Dinstein explains:

... freedom of religion, as an individual right, may be nullified unless complemented by a collective human right of the religious group to construct the infrastructure making possible the full enjoyment of that freedom by individuals.’ : Freedom of Religion and Religious Minorities in Y Dinstein (ed), The Protection of Minorities and Human Rights (1992) 152.

The Human Rights Committee has confirmed (General Comment No. 22, note 25, para 4) that the freedom to manifest religion or belief in practice or teaching 

... includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, [and] the freedom to establish seminaries or religious schools’  

In considering the content of article 18 of the ICCPR, it is helpful to consider the comments of the European Court of Human Rights (the European Court) relating to article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  Article 9 of that Convention is in substance the same as article 18 of the ICCPR. The European Court has construed the collective aspect of the right to freedom of religion in article 9 as including a right of religious communities to autonomy in their internal affairs. 

The European Court has consistently held that government interference in the organisation of a religious community, such as interfering in the selection of religious leaders or refusing to grant legal recognition to a religious community will, in general, violate this right.  (See Serif v GreeceHasan and Chaush v Bulgaria;  Supreme Holy Council of the Muslim Community v Bulgaria regarding selection of religious leaders; see Metropolitan Church of Bessarabia and ors v Moldova;  Religionsgemeinschaft der Zeugen Jehovas and Ors v Austria, regarding legal recognition.)   

In Hasan and Chaush v Bulgaria the European Court explained that the way religious communities structure themselves is often a manifestation of the individual members’ beliefs.  The Court explained the importance of autonomy for religious communities in the following terms:

Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in this perspective, the believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected…all other aspects of the individual's freedom of religion would become vulnerable.

Some difficulty may arise in accurately ‘delineating the crucial sphere of autonomy’ which should be afforded to religious groups to enable them to collectively enjoy the right to freedom of religion.  It should be noted that religious groups also enjoy the protection of freedom of association under article 22 of the ICCPR.

In Australia it has been emphasised that the collective dimension of the right to manifest religion extends beyond places of worship. Submissions on the exposure draft Human RIghts and AntiDiscrimination Bill  2012 for example emphasised that communities manifest their religion not only in the formation and organisation of churches, synagogues and mosques, but also in the creation of religious schools and the provision of services to the public. 

The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,  which was drafted to provide further guidance  on the protection afforded by article 18 of the ICCPR, supports this argument to some extent.  Article 6 of the Declaration makes clear that the collective aspect of freedom of religion includes the freedom to establish and maintain places of worship and appoint leaders consistent with ‘the requirements and standards or any religion or belief’. It equally includes the freedom to ‘teach a religion of belief in places suitable for these purposes’, and to establish and maintain ‘appropriate charitable and humanitarian institutions’.

Questions of when activities constitute manifestations of religion or belief and how far these manifestations may be subject to legitimate limitations are addressed separately on this site.