The right to try to convince the other:
Proselytism and human rights

1. The sources of the international freedom of religion or belief

The most important international legislation on the freedom of religion or belief, is art. 18 in the United Nation's International Covenant on Civil and Political Rights (CCPR), from 1966. CCPR art. 18 is built upon art. 18 of the Universal Declaration of Human Rights (DHR), from 1948.[1]

Some important issues regarding discrimination are treated in the Declaration on the Eliminiation of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981).

Freedom of religion or belief is also protected by some regional instruments, like the European Convention on Human Rights (ECHR) art. 9 and the American Convention on Human Rights (ACHR) art. 12.

About 160 states have ratified CCPR, and the freedom of religion or belief has generally a wide recognition. Thus, there are good reasons for stating that the basic elements of the freedom of religion or belief as expressed in art. 18, are international customary law. This means that the states are legally obliged to respect this freedom, regardless of the ratification status of the different conventions.

Some parts of the text of CCPR art. 18 are vague. To be able to get a closer understanding of CCPR art. 18, the UN Human Rights Committee has delivered a General Comment on this freedom (General Comment no. 22, from 1993). In addition, the Human Rights Committee may, for those states that have accepted this opportunity, decide individual complaints.[2] The Committee has not till this date decided cases on proselytism. Yet, a couple of cases on proselytism have been decided by the European Court of Human Rights. Because of the almost similar wording of ECHR art. 9 and CCPR art. 18, the jurisprudence of the European Court is of relevance regarding CCPR art. 18 as well.

The freedom of religion or belief is also considered by international institutions in a more political context. The UN Human Rights Commission has appointed a special rapporteur on freedom of religion or belief, who delivers annual reports to the Commission.

2. The different parties of interest

The different parties of interest to a concrete proselytism issue may be classified in different ways. However, they will often contain these four:

A: The actor of the proselytism activity: This may be a single person, a congregation, a missionary society etc. It may be a foreigner or an inhabitant of the actual state.

B: The object of the proselytism activity: This may be a single person, or a group of persons.

C: The social group to which the object is affiliated: This may be his or her family, working place, neighbourhood, congregation/organization, ethnic/religious society etc.

D: The governmental authorities of the state in which the act of proselytism is performed.

Human rights are rights and freedoms for private persons or groups (A-C), which the state (D) is obliged to respect and ensure. Different persons or groups may have colliding interests, and different rights and freedoms may have to be weighed against each other.

3. The wording of CCPR art. 18

CCPR art. 18 reads as follows:

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.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

4. Which religions and beliefs are protected by art. 18?

Seen together with the General Comment, the phrase “religion” covers all faiths in supernatural powers, traditional and untraditional, while the phrase ”belief” primarily refers to non-religious and quasi-religious philosophies of life, such as atheism, agnosticism and humanism.[3] Furthermore, art. 18 also protects the right not to profess any religion or belief.[4] Also sincere convictions on more limited areas, which have a strong link to conscience, such as pacifism and veganism, are protected. Therefore, proselytism activities described in the following will also cover activities performed by or directed against persons with a non-religious belief.

5. The right to engage in faith persuasion

 5.1. The right to engage in faith persuasion as a part of the right to manifest one's religion or belief

The right to engage in faith persuasion is not explicitly mentioned in art. 18. However, this will normally be a part of the “manifestation” of a belief, cf. para. 1 of the article – as “teaching” or as “practice”, the latter covering all thinkable forms of manifestations that are not explicitly mentioned in the article.[5] In some religions, the believers are urged by the religious doctrines to try to spread the faith. And for all beliefs, as long as the believer is strongly convinced, he or she will have a natural wish to try to convince others of the “truth” - if the “truth” is desicive for an afterlife as well, this wish may be strong.­­ Even if not being an integral part of a religion's or belief's dogmas, such kind of faith persuasion is covered by the phrase “manifestation”.

Falling within the ambit of art. 18 (1), the state may not interfere in proselytism activities without this being legitimate after para. 3 of the article (the “negative obligation”), cf. para. 6 below. Furthermore, the state has a “positive obligation”, to “ensure” the right: [6] The state is obliged to give its citizens protection against clear violations from other citizens who do not respect this right. Thus, the state may be obliged to protect an adherent of a minority belief, trying to convince a member of the majority religion, against harassment from the majority.

5.2. The right to engage in faith persuasion is closely linked with the right to change religion or belief

The right to try to convince others will be of little worth if the target does not have a right to change religion or belief, and vice versa. In the words of the European Court of Human Rights, ”[failing] the right to try to convince one's neighbour ... freedom to change ... religion or belief ... would be likely to remain a dead letter”.[7]

The wording “freedom to have or to adopt a religion or belief of his choice” in art. 18 implies a right to change religion or belief,[8] although this formula is more vague than the formula in DHR art 18, ECHR art. 9 and ACHR art. 12.[9]

According to para. 2 of art. 18, no one shall be coerced to maintain their religion or belief. Both the prescription as well as the prohibition of a certain religion will thus be inconsistent with art. 18. Also indirect measures, that would “impair” the right to change religion, are prohibited, for instance governmental given priveleges or obstacles directed against a certain religion. And, as pointed to above, the state also has an obligation to actively ensure the right to change religion or belief.

5.3. Other human rights that support the right to engage in faith persuasion

The freedom of expression in CCPR art. 19 implies a right to disseminate information on one's belief, and to propagate religious convictions, “regardless of frontiers, either orally, in writing or in print”. The possibility for the state to limit such expressions, cf. art. 19 (3), is similar to the limitation clause of art. 18 (3), see para. 7 below[10] – and, as mentioned below, in some situations the state will be obliged to limit the freedom.

Included in the freedom of expression is also a right to seek and to receive information – the right of the target, cf. art 19 (2).

The freedom of assembly, CCPR art. 21, and the freedom of association, CCPR art. 22, may be important for missionary societies, and for the assembly and association of the proselytized. The limitation clauses are similar to art. 18 (3).

According to art. 18 (4), parents holding a minority belief may be entitled to take their children out of religious classes if only the majority belief is taught.[11] The article presumes that parents have the right to spread their faith to their children, as they may teach them their own religion. However, according to the Convention on the Rights of the Child art. 14, this right has to be consistent with the evolving capacities of the child.

6. The human rights protection of potentially colliding interests

6.1. The right to maintain one's religion or belief

When discussing the right to proselytism, it is essential to note that art. 18 also protects, to the same extent as the right to change religion or belief, the right to maintain a religion or belief (“freedom to have ...”), including the right to stay un-concerned.

According to art. 18 para. 2, no one shall be coerced to change his or her religion or belief. Impairment of this right, by indirectly coercive practice, is also prohibited, such as promises of education, medical care, employment etc.[12] In this regard, the state may be obliged to, according to its positive obligations, limit some kinds of proselytism activities, cf. para. 7-9 below.

6.2. Other human rights protecting potentially colliding interests

According to some decisions of the European Court of Human Rights,[13] freedom of religion also protects against the hurting of religious feelings. However, this does not have a clear basis in the wording of the article. Legal provisions against blasphemy are also often abused by leaders of the majority religion to hinder proper criticism, or to suppress minority beliefs. Thus, there are good reasons for stating that only gravely improper expressions against a belief may be forbidden.

CCPR art. 27 states that ethnic and religious minorities shall not be denied the right to profess and practice their own religion. In this regard, attention should also be paid to the protection of cultural rights in the International Covenant on Economic, Social and Cultural Rights art. 15, and in other international instruments.[14]

The right to privacy, CCPR art. 17, will, for instance, protect the home from forced invasion by missionaries.

The right to health, which includes mental health, cf. the International Covenant on Economic, Social and Cultural Rights art. 12, is also of relevance.

7. The possibility for the state to limit proselytism activities

According to art. 18 (3), the state may only interfere in the manifestations of a religion or belief, including different kinds of proselytism activities, if certain criteria are fulfilled:

- Firstly, the limitation must be prescribed by law. The law must be sufficiently clear, so that it is not open for abuse or arbitrary decisions.

- Secondly, the limitation must serve one of the listed purposes:

- - Public safety: For instance, this will cover the danger of violence between different religious groups. According to CCPR art. 20 (2), the state is obliged to prohibit “any advocacy of ... religious hatred that constitutes incitement to discrimination, hostility or violence”. It is worth noting, however, that CCPR art. 4, regarding the possibility to restrict different freedoms in times of public emergency, prohibits derogations from art. 18.

- - (Public) order: For instance, this will cover registration provisions.

- - (Public) health: For instance, the purpose to protect the mental health of the object.

- - (Public) moral: For instance, to protect from blasphemy. However, General Comment para. 8 states that such limitations ”must be based on principles not deriving from a single tradition”.

- - Fundamental rights and freedoms of others: See para. 6 above. In such situations, the state may even have an obligation to limit some acts of proselytism. However, the limitations still have to fulfill all the criteria of art. 18 (3).

The list is exhaustive. Limitation clauses regarding other rights mention national security – this is not mentioned as an accepted purpose in art. 18 (3). Neither is the purpose to protect the majority or state belief mentioned.

- Thirdly, the actual limitation must be ”necessary”. This is the most important provision. Different kinds of limitations may be prescribed by law and serve an accepted purpose, but they are not necessary in a strict sense to obtain the purpose. According to General Comment para. 8, limitations must be proportionate to the specific need. For instance, the state may fear hostility between different groups of the society, yet, according to the European Court of Human Rights, the role of the authorities in such circumstances is “not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”.[15] In the lack of effective international enforcement organs, the vagueness of this part of art. 18 is open for abuse by the states.

- There is a fourth provision, not expressed in art. 18, but entailed in the general non-discrimination clauses of CCPR art. 2 (2) and 26, that the state cannot restrict (or favour) just one or some religions or beliefs. However, not every differentiation will constitute discrimination, if, in the words of the Human Rights Committee, “the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”.[16] The aim of protecting the majority belief, the official religion or belief or only traditional religions, is not a legitimate one.[17]

In general, the state shall be neutral in questions regarding the choice of religion or belief by its citizens. The state itself may not, by any means, engage in faith persuasion.

The limitation clause of art. 18 (3), as described above, only applies to the external manifestations of the religion or belief. The internal side of the freedom – the mind operation of maintaining or changing a religion or belief – may not, by any means, be interfered with by the state.

8. The balancing of rights: Two illustrations on how to draw the line

Regarding proselytism, the question will often be how to balance the right to engage in faith persuasion against the right to maintain one's religion or belief. The two cases of proselytism that have been decided by the European Court of Human Rights, are of interest in this context:

- The Kokkinakis case:[18 ] Mr. Kokkinakis had, after becoming a Jehovah's Witness, been arrested more than 60 times for proselytism, and was once again convicted, this time for calling at the home of a family and staying there for 10-15 minutes discussing religious issues. The measure was prescribed by law and aimed at protecting the rights and freedoms of others, but the question was whether the measure was “necessary” to protect the rights of others. The European Court of Human Rights stated that such measures will only be consistent with the freedom of religion or belief as long as they do not hinder proper proselytism. In this case, there was no use of force or other improper methods by mr. Kokkinakis, and Greece was judged to have violated the freedom of religion.[19]

- The Larissis case:[20] The applicants were military officers and followers of a pentecostal church, and had been convicted for proselytism. The criteria of proper/improper proselytism was upheld by the European Court of Human Rights. The conviction of the applicants constituted partly a violation of the freedom of religion: On the one hand, the conviction of the applicants for proselytism directed against subordinates did not constitute a violation of the freedom of religion, because of the hierarchical structure and other particular characteristics of military life. On the other hand, it was not necessary for protecting the rights of others to punish the proselytism directed against civilians, although one of the targets was in a state of distress because of the breakdown of her marriage.

Between activities that clearly will be proper and activities that clearly will be improper, there are activities that are hard to place. It follows from the judgments that in assessing such activities, it is not just the activity in general that has to be assessed, but all the concrete aspects of the situation, including the characteristics of the parties of interest that are involved. Some important factors are the strength (cultural, financial, mental etc.) of the proselytizer compared with the strength of the object, the way the message is delivered (choice of media, the words used etc.), the belonging of the parties to a majority or minority belief (incl. indigenious beliefs), and where the activity takes place (military, prison, hospital, school etc.).[21]

9. Conclusion: A right to proper acts of proselytism

 It follows from the jurisprudence of the European Court of Human Rights that only proper proselytism is protected by the international human rights instruments, and that in deciding the properness of the act of proselytism, one has to take into consideration the rights and freedoms of others, and how the state may ensure diversity without coercive measures.

Notes:

[1] Being a declaration, the text does not have the same legal status as a convention, such as CCPR.

[2] Furthermore, the Committee gives comments on state reports.

[3] When assessing convictions that do not clearly fall within the phrases “religion” or “belief”, a lot of weight must be put on the self-understanding of the believers, and the conviction should be given the benefit of the doubt.

[4] General Comment para. 2 states that “Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief”.

[5] ACHR art. 12 explicitly mentions “freedom to ... disseminate one's religion or beliefs”.

[6] CCPR art. 2 (1): The states undertake “to respect and to ensure ... the rights ... in the present Covenant”.

[7] Kokkinakis v. Greece , judgment of 05/25/1993, A 260-A, para. 31.

[8] General Comment para. 5.

[9] The gradual weakening of the expression of the right to change religion or belief, from the DHR art. 18, through CCPR art. 18 to the Declaration on religious discrimination art. 1, is caused by the fear of some Islamic states that a clear expression of this right would encourage zelous missionary actitivites.

[10] In the case Murphy v. Ireland, judgment 12/03/2003 of the European Court of Human Rights, the Irish ban on religious advertising in audiovisual media was accepted, for the protection of the rights and freedoms of others.

[11] See for instance the case 1155/2003 before the Human Rights Committee, against Norway .

[12] General Comment para. 5.

[13] See Otto-Preminger-Institut v. Austria , A 295-A (1994) and Wingrove v. UK , RJD 1996 p. 1937.

[14] For instance the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989.

[15] Serif v. Greece , judgment of 12/14/1999, regarding tensions between Muslims and Christians and between Greece and Turkey , para. 53.

[16] General Comment no. 18 para. 13, on art. 26.

[17] General Comment para. 9.

[18] Kokkinakis v. Greece , judgment of 05/25/1993, A 260-A.

[19] The Court stated the following: “First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others. Scrutiny of section 4 of Law no. 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and so far as they are designed only to punish improper proselytism, which the court does not have to define in the abstract in the present case” (para. 48).

[20] Larissis and others v. Greece , judgment of 02/24/1998, RJD 1998 p. 362.

[21] Religious clothing may have a proselytizing aspect, and two cases regarding students' right to wear hijab have received different outcomes: A ban on hijab was accepted by the European Court of Human Rights in the case Sahin v. Turkey (judgment of 06/29/2004, not final), while this was not accepted by the UN Human Rights Committee in the case Hudoyberganova v. Uzbekistan (931/2000).