|FREEDOM OF RELIGION OR BELIEF
c) Religious symbols
1981 Declaration of the General Assembly
Art. 6 (c) : The right to freedom of thought, conscience, religion or belief includes the freedom, "To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;".
Commission on Human Rights r esolution 2005/40
4 (b) : The Commission on Human Rights urges States, "To exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights law, to ensure that religious places, sites, shrines and religious expressions are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction;".
Human Rights Committee general comment 22
Para . 4 : "The concept of worship extends to [.] the display of symbols".
Para . 4 : "The observance and practice of religion or belief may include not only ceremonial acts but also such customs as [.] the wearing of distinctive clothing or head coverings [.]."
[Go back to the Framework for communications]
Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)
E/CN.4/2006/5, paras. 36-60:
"III. RELIGIOUS SYMBOLS
A. Factual aspects
36. When dealing with the issue of religious symbols, two aspects of the question need to be taken into account. On the one hand, many individuals in various parts of the world are prevented from identifying themselves through the display of religious symbols, while on the other hand the reports and activities of the mandate have revealed the practice in some countries of requiring people to identify themselves through the display of religious symbols, including religious dress in public. The Special Rapporteur refers to the former as positive freedom of religion or belief, and to the latter as negative freedom of religion. The following paragraphs examine, from an international human rights perspective, both positive and negative freedom of religion or belief of individuals with regard to the wearing of religious symbols such as garments and ornaments. A different, albeit related, issue is the display of religious symbols in public locations such as courthouses, polling stations, classrooms, public squares, etc. Some aspects of these situations have been the subject of several national legal judgements at the highest level, [Cf. US Supreme Court, judgements of 27 June 2005 on posting the Ten Commandments in courthouses and on monuments (McCreary County v. American Civil Liberties Union of KY and Van Orden v. Perry); Italian Corte costituzionale, judgement of 13 December 2004 on crucifixes in schools (Ordinanza N.389 Anno 2004); Swiss Tribunal fédéral suisse/Schweizerisches Bundesgericht/Tribunale federale svizzero, judgement of 18 January 1995 on crucifixes in courtrooms (see official collection of jurisprudence, ATF 121 I 42) and judgement of 26 September 1990 on crucifixes in classrooms (ATF 116 Ia 252); German Bundesverfassungsgericht, judgement of 16 May 1995 on crucifixes in classrooms (see official collection of jurisprudence, BVerfGE 93, 1) and judgement of 17 July 1973 on crucifixes in courtrooms (BVerfGE 35, 366).] but the question will not be covered in this section.
37. A comparative analysis of the factual aspects reveals a set of regulations or prohibitions on wearing religious symbols in more than 25 countries all over the world. [Cf. the comparative table on prohibitions of wearing religious symbols, available at http://www.uni-trier.de/~ievr/kopftuch/ReligiousSymbols.pdf.] Several religions are affected and religious symbols remain a subject of controversy in a number of countries. Examples of affected believers and their religious garments or ornaments include Muslims wearing headscarves, Jews wearing yarmulkes, Christians wearing crucifixes, collars and nuns' habits, Hindus displaying a bindi, Buddhists wearing saffron robes, Sikhs wearing turbans or kirpans as well as followers of Bhagwan (Osho) wearing reddish-coloured clothing. There are different levels of regulation or prohibition on the wearing of religious symbols including constitutional provisions, legislative acts at the national level, regulations and mandatory directives of regional or local authorities, rules in public or private organizations or institutions (e.g. school rules) and court judgements. The intensity of possible adverse effects for individuals who do not abide by the regulations or prohibitions also depends on the respective field of application. Pupils in primary and secondary schools run the risk of being expelled from the public school system, whereas teachers are in danger of reprimands, suspension and, ultimately, dismissal from their jobs. At the university level, students also run the risk of being expelled or of not being awarded their degrees unless they abide by prescriptions concerning religious symbols. University lecturers are likely not to be employed in the first place. In the work environment in general there is a risk of reprimands, suspension and dismissal directly connected to the wearing of religious symbols. This may affect both employees in private enterprises and civil servants, as well as members of Parliament and military personnel. When certain dress codes are applicable for ID photographs, e.g. on permanent resident cards, visas, passports and driving licences, individuals run the risk of not receiving the official ID or of being forced to wear the required head covering on ID photographs for deportation purposes. In public, individuals may either be prevented (positive aspect of freedom of religion or belief) or coerced to wear religious symbols that they consider not essential to their convictions (negative freedom of religion or belief).
38. The obligation to wear religious dress in public in certain countries was particularly criticized by Special Rapporteur Amor, who stated that "women are among those who suffer most because of severe restrictions on their education and employment, and the obligation to wear what is described as Islamic dress" (E/CN.4/1998/6, para. 60). There were reports of punishment by whipping and/or a fine (A/51/542/Add.2, para. 51) and a growing number of women being attacked in the streets (E/CN.4/2003/66/Add.1, para. 59), or even killed after being threatened for failing to wear religious symbols (E/CN.4/1995/91, p. 36). After in situ visits, Special Rapporteur Amor addressed possible solutions by urging that dress should not be the subject of political regulation and by calling for flexible and tolerant attitudes in this regard. At the same time he emphasized that traditions and customs were worthy of respect (E/CN.4/1996/95/Add.2, para. 97 and A/51/542/Add.2, para. 140). In his thematic studies he also referred to the different possible meanings of religious symbols (E/CN.4/2002/73/Add.2, paras. 101-102) and in particular to the situation of pupils in the public school system (A/CONF.189/PC.2/22, paras. 56-59).
39. Furthermore, in resolution 1464 (2005) on "Women and religion in Europe", the Parliamentary Assembly of the Council of Europe has recently called on its member States to "ensure that freedom of religion and respect for culture and tradition are not accepted as pretexts to justify violations of women's rights, including when underage girls are forced to submit to religious codes (including dress codes)". [Parliamentary Assembly of the Council of Europe, resolution 1464 (2005), para. 7.4, adopted on 4 October 2005.]
B. Legal framework at the international level
40. As mentioned in the Special Rapporteur's previous annual report (E/CN.4/2005/61, para. 65), most international judicial or quasi-judicial bodies consider the display of religious symbols as a manifestation of religion or belief (forum externum) rather than being part of internal conviction (forum internum), which is not subject to limitation. Several universal and regional human rights instruments refer to the freedom "to manifest his religion or belief in worship, observance, practice and teaching" [See the wording - with a slightly differing order of the list of possible manifestations of religion or belief - in article 18 Universal Declaration of Human Rights (UDHR), in article 18 (1) International Covenant on Civil and Political Rights (ICCPR), in article 12 (1) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC), in article 1 (1) of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981 Declaration) and in article 9 (1) European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).] (emphasis added). The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief more specifically enumerates the freedom to "make, acquire and use to an adequate extent the necessary articles and materials related to rites or customs of a religion or belief". [Article 6 (c) of the 1981 Declaration. Cf. also Principle 16 of the Concluding Document of the 1989 Vienna Meeting of Representatives of the Participating States of the CSCE Conference: "In order to ensure the freedom of the individual to profess and practice religion or belief, the participating State will, inter alia, [...] (16.9) respect the right of individual believers and communities of believers to acquire, possess, and use sacred books, religious publications in the language of their choice and other articles and materials related to the practice of religion or belief;".] According to the Human Rights Committee's general comment No. 22 on article 18 of the Covenant, "[t]he observance and practice of religion or belief may include not only ceremonial acts but also such customs as [...] the wearing of distinctive clothing or head coverings" (para. 4).
41. It is not clear whether the wearing of religious symbols falls under the category of "practice" or "observance". In listing the features that required protection, the Committee does not seem to distinguish clearly between these two categories. However, some commentators have suggested that observance refers to "prescriptions that are inevitably connected with a religion or belief and protects both the right to perform certain acts and the right to refrain from doing certain things", whereas practice concerns manifestations which are "not prescribed, but only authorized by a religion or belief". [For further discussion see Cornelis D. de Jong, The Freedom of Thought, Conscience and Religion or Belief in the United Nations (1946-1992), Antwerpen/Groningen/Oxford 2000, p. 105.] Such a distinction between compulsory prescriptions and mere authorizations may ultimately lead to problems when trying to determine who should be competent to consider this aspect of the individual's freedom of religion or belief. During the elaboration of general comment No. 22, Human Rights Committee member Rosalind Higgins stated that "[...] it was not the Committee's responsibility to decide what should constitute a manifestation of religion". She resolutely opposed the idea that "States could have complete latitude to decide what was and what was not a genuine religious belief. The contents of a religion should be defined by the worshippers themselves". [See the Human Rights Committee discussion on 24 July 1992, Summary Records of the 1166th meeting of the forty-fifth session, para. 48.] A certain appearance or exhibition of a symbol may or may not be linked to any religious sentiment or belief. It would therefore be most inappropriate for the State to determine whether the symbol in question was indeed a manifestation of religious belief. The Special Rapporteur therefore shares the approach of the Human Rights Committee in dealing with the wearing of religious symbols under the headings of "practice and observance" together.
42. The controversy under international human rights law tends to centre on possible limitations on the freedom to manifest one's religion or belief, e.g. according to article 29 (2) of the Universal Declaration on Human Rights, article 18 (3) of the International Covenant on Civil and Political Rights, article 1 (3) of the Declaration, article 9 (2) of the European Convention on Human Rights (ECHR) and article 12 (3) of the American Convention on Human Rights (AmCHR). Generally speaking, these clauses only accept such limitations as are prescribed or determined by law and are necessary - in a democratic society - to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The list of permissible reasons for intervention notably does not include additional grounds stipulated for different human rights, e.g. national security or the reputations of others. Furthermore, article 4 (2) of the Covenant and article 27 (2) of AmCHR prescribe that, even in time of public emergency or war, no derogation from the freedom of conscience and religion is permissible. That this right is non-derogable again underlines the importance of the freedom of religion or belief.
C. International case law
43. When discussing the wording of its general comment No. 22, the Human Rights Committee also took account of the "need to avoid rivalry or provocation" [Id., para. 27 (Human Rights Committee member Mr. Sadi).] with regard to the wearing of clothing in accordance with religious practice. The following cases illustrate typical contentious situations and the respective findings of the relevant international judicial or quasi-judicial body. Two cases before the Human Rights Committee as well as concluding observations of the Committee on the Rights of the Child appear to be pertinent to the issue of religious symbols. Furthermore, there are a number of precedents, including the most recent Grand Chamber decision of 10 November 2005, in the case law of the European Court of Human Rights and of the European Commission on Human Rights.
44. Communication No. 931/2000, Hudoyberganova v. Uzbekistan, concerned a female Muslim student of the Tashkent State Institute for Eastern Languages who allegedly had been suspended for wearing a headscarf. On 5 November 2004, the majority of the Human Rights Committee concluded, in the absence of any justification provided by the State party, that there had been a violation of article 18, paragraph 2, of the Covenant. It also confirmed that "the freedom to manifest one's religion encompasses the right to wear clothes or attire in public which is in conformity with the individual's faith or religion. Furthermore, it considers that to prevent a person from wearing religious clothing in public or private may constitute a violation of article 18, paragraph 2, which prohibits any coercion that would impair the individual's freedom to have or adopt a religion." [CCPR/C/82/D/931/2000, para. 6.2.] Three Committee members, however, decided to append individual opinions, referring to the uncertain state of the record and to more complex causes for Ms. Hudoyberganova's exclusion from the institute, based on her own statements.
45. In communication No. 208/1986, Bhinder v. Canada, the Human Rights Committee held on 9 November 1989 that the requirement for Sikhs to wear safety headgear during work was justified under article 18 (3) of the Covenant, without further specifying which of the grounds for limitation it thought to be in question. In addition, the Committee did not find de facto discrimination against persons of the Sikh religion violating article 26 of the Covenant because the legislation was to be "regarded as reasonable and directed towards objective purposes that are compatible with the Covenant". [CCPR/C/37/D/208/1986, para. 6.2.]
46. The Committee on the Rights of the Child in its concluding observations on the second periodic report of France was concerned at the alleged rise in discrimination, including that based on religion, and that the new legislation on wearing religious symbols and clothing in public schools may neglect the principle of the best interests of the child and the right of the child to access to education. It recommended that the State party "consider alternative means, including mediation, of ensuring the secular character of public schools, while guaranteeing that individual rights are not infringed upon and that children are not excluded or marginalized from the school system and other settings as a result of such legislation. The dress code of schools may be better addressed within the public schools themselves, encouraging participation of children". The Committee further recommended that "the State party continue to closely monitor the situation of girls being expelled from schools as a result of the new legislation and ensure that they enjoy the right of access to education." [CRC/C/15/Add.240, paras. 25-26; see also Committee on the Rights of the Child discussion on 2 June 2004, Summary Records of the 968th meeting of the thirty-sixth session, CRC/C/SR.968, paras. 33, 43 and 83. Concerning the ban on schoolteachers wearing headscarves see the Committee's Concluding Observations on the second periodic report of Germany, CRC/C/15/Add.226, paras. 30-31.]
47. At the regional level, the European Court of Human Rights and, previously, the European Commission on Human Rights appear to be more inclined to allow States to limit individuals' positive freedom of religion or belief. The Court case Sahin v. Turkey concerned the refusal of admission to lectures and examinations at Istanbul University for students whose heads were covered. Both the Court Chamber and the recent Grand Chamber judgements held the notion of secularism to be consistent with the values underpinning the European Convention on Human Rights. With regard to article 9 of ECHR, "the Court considered that, when examining the question of the Islamic headscarf in the Turkish context, there had to be borne in mind the impact which wearing such a symbol, which was presented or perceived as a compulsory religious duty, may have on those who chose not to wear it". [Sahin v. Turkey, application No. 44774/98, ECtHR Chamber judgement of 29 June 2004, para. 108 and ECtHR Grand Chamber judgement of 10 November 2005, para. 115.] In her dissenting opinion, however, Judge Tulkens disagreed with the manner in which the principles of secularism and equality were applied by the majority of the Grand Chamber. She underlined that not mere worries, but only "indisputable facts and reasons whose legitimacy is beyond doubt" were capable of justifying interference with a right guaranteed by the Convention.
48. In the case Dahlab v. Switzerland, the application of a teacher in a primary school who had been prohibited from wearing a headscarf in the performance of her professional duties was dismissed by the European Court of Human Rights at the admissibility stage. The Court held that a teacher, wearing a "powerful external symbol" such as the headscarf might have some kind of proselytizing effect on young children, who were in this case aged between 4 and 8 years. Thus, the Court concurred with the view of the Swiss Federal Court that the prohibition of wearing a headscarf in the context of the applicant's activities as a teacher was "justified by the potential interference with the religious beliefs of her pupils, other pupils at the school and the pupils' parents, and by the breach of the principle of denominational neutrality in schools". [Dahlab v. Switzerland, application No. 42393/98, ECtHR decision of 15 February 2001 (cf. ECHR 2001-V at p. 462).]
49. The protection of the beliefs of others and of public order was also stressed in the case Refah Partisi (the Welfare Party) and Others v. Turkey, where the Grand Chamber of the European Court stated that "measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under article 9 [paragraph] 2 of the Convention". [Refah Partisi (the Welfare Party) and Others v. Turkey, applications Nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECtHR Grand Chamber judgement of 13 February 2003, para. 95. See also the ECtHR Chamber judgement of 31 July 2001, para. 51.]
50. The European Commission on Human Rights also dealt with two applications, Karaduman v. Turkey (No. 16278/90) and Bulut v. Turkey (No. 18783/91), concerning the university's refusal to issue a diploma because the photographs that the applicants had submitted for their identity documents portrayed them with their heads covered. In its decisions of 3 May 1993, the Commission did not regard the rejection to be an interference with the applicants' freedom of religion or belief as secular universities may regulate manifestation of religious rites and symbols with the aim of ensuring harmonious coexistence between students of various faiths and thus protecting public order and the beliefs of others.
D. Development of a set of general criteria to balance competing human rights
51. In general, contentious situations should be evaluated on a case-by-case basis, e.g. by weighing the right of a teacher to manifest his or her religion against the need to protect pupils by preserving religious harmony according to the circumstances of a given case. However, developing a set of general criteria to balance competing human rights seems to be desirable in order to give some guidance in terms of the applicable international human rights standards and their scope. In a manner similar to the guideline developed in 2004 by the Office for Democratic Institutions and Human Rights (ODIHR) of the OSCE, ["Guidelines for Review of Legislation Pertaining to Religion or Belief", prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief in consultation with the Council of Europe's Commission for Democracy Through Law (Venice Commission), 2004, available at http://www.osce.org/odihr/item_11_13600.html.] the aim of these general criteria is to assist national and international bodies in their analyses and reviews of laws and draft legislation pertaining to the freedom of religion or belief. The Special Rapporteur invites Governments that intend to regulate the wearing of religious symbols to consider seeking advisory services from the Office of the High Commissioner for Human Rights.
52. When developing such a set of general criteria, the competing human rights and public interests put forward in national and international forums need to be borne in mind. Freedom of religion or belief may be invoked both in terms of the positive freedom of persons who wish to wear or display a religious symbol and in terms of the negative freedom of persons who do not want to be confronted with or coerced into it. Another competing human right may be the equal right of men and women to the enjoyment of all civil and political rights, as well as the principle of the right to be protected from discrimination of any kind, including on the basis of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status. The right of everyone to education may be invoked by pupils who have been expelled for wearing religious symbols in accordance with their religion or belief. Furthermore, the rights of parents or legal guardians to organize life within the family in accordance with their religion or belief and bearing in mind the moral education which they believe should inform the child's upbringing (see article 5 (1) of the Declaration) may also be at stake. On the other hand, the State may try to invoke the "denominational neutrality of the school system" and the desire to "[preserve] religious harmony in schools" (see the Swiss Federal Court in the Dahlab case). According to the individual opinion by Human Rights Committee member Ruth Wedgwood in the Hudoyberganova case "a State may be allowed to restrict forms of dress that directly interfere with effective pedagogy". [CCPR/C/82/D/931/2000, op. cit.] Furthermore, the recent European Court Grand Chamber judgement in the Sahin case referred to the need to "preserve public order and to secure civil peace and true religious pluralism, which is vital to the survival of a democratic society".
53. However, any limitation must be based on the grounds of public safety, order, health, or morals, or the fundamental rights and freedoms of others, it must respond to a pressing public or social need, it must pursue a legitimate aim and it must be proportionate to that aim. [See Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, E/CN.4/1985/4, Annex, para. 10.] Furthermore, the burden of justifying a limitation upon the freedom to manifest one's religion or belief lies with the State. Consequently, a prohibition of wearing religious symbols which is based on mere speculation or presumption rather than on demonstrable facts is regarded as a violation of the individual's religious freedom. [See Board of Experts of the International Religious Liberty Association, Guiding Principles Regarding Student Rights to Wear or Display Religious Symbols (15 November 2005), Principles Nos. 6 and 7, available at www.irla.org/documents/reports/symbols.html.]
54. With regard to the scope of permissible limitation clauses, the Human Rights Committee's general comment No. 22 emphasizes that article 18 (3) of the Covenant "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 (para. 8)".
55. On the basis of the above-mentioned factual aspects, the legal framework and international case law, the Special Rapporteur has endeavoured to develop a set of general criteria in order to evaluate - from a human rights law perspective - restrictions and prohibitions on wearing religious symbols. The following "aggravating indicators" show legislative and administrative actions which typically are incompatible with international human rights law whereas the subsequent "neutral indicators" by themselves do not tend to contravene these standards:
(a) Aggravating indicators:
- The limitation amounts to the nullification of the individual's freedom to manifest his or her religion or belief;
- The restriction is intended to or leads to either overt discrimination or camouflaged differentiation depending on the religion or belief involved;
- Limitations on the freedom to manifest a religion or belief for the purpose of protecting morals are based on principles deriving exclusively from a single tradition; [Id. For the travaux préparatoires see the Human Rights Committee discussion on 2 and 5 April 1993, Summary Records of the 1225th and 1226th meetings of the forty-seventh session.]
- Exceptions to the prohibition of wearing religious symbols are, either expressly or tacitly, tailored to the predominant or incumbent religion or belief;
- In practice, State agencies apply an imposed restriction in a discriminatory manner or with a discriminatory purpose, e.g. by arbitrarily targeting certain communities or groups, such as women;
- No due account is taken of specific features of religions or beliefs, e.g. a religion which prescribes wearing religious dress seems to be more deeply affected by a wholesale ban than a different religion or belief which places no particular emphasis on this issue;
- Use of coercive methods and sanctions applied to individuals who do not wish to wear a religious dress or a specific symbol seen as sanctioned by religion. This would include legal provisions or State policies allowing individuals, including parents, to use undue pressure, threats or violence to abide by such rules;
(b) Neutral indicators:
- The language of the restriction or prohibition clause is worded in a neutral and all-embracing way;
- The application of the ban does not reveal inconsistencies or biases vis-à-vis certain religious or other minorities or vulnerable groups;
- As photographs on ID cards require by definition that the wearer might properly be identified, proportionate restrictions on permitted headgear for ID photographs appear to be legitimate, if reasonable accommodation of the individual's religious manifestation are foreseen by the State;
- The interference is crucial to protect the rights of women, religious minorities or vulnerable groups;
- Accommodating different situations according to the perceived vulnerability of the persons involved might in certain situations also be considered legitimate, e.g. in order to protect underage schoolchildren and the liberty of parents or legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
56. In seeking to accommodate different categories of individuals details of permissible limitations will be controversial. In general schoolchildren are generally considered vulnerable in view of their age, immaturity and the compulsory nature of education. In addition, parental rights are also put forward as justification for limiting teachers' positive freedom to manifest their religion or belief. In all actions concerning children, the best interests of the child shall be the primary consideration. University students, however, have normally reached the age of majority and are generally considered to be less easily influenced than schoolchildren, and parental rights are usually no longer involved.
57. The above-mentioned controversy over the peculiarities of certain institutional settings was already alluded to in 1959 by Arcot Krishnaswami, then Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his seminal study of discrimination in the matter of religious rights and practices: "A prohibition of the wearing of religious apparel in certain institutions, such as public schools, may be motivated by the desire to preserve the non-denominational character of these institutions. It would therefore be difficult to formulate a rule of general application as to the right to wear religious apparel, even though it is desirable that persons whose faith prescribes such apparel should not be unreasonably prevented from wearing it." [E/CN.4/Sub.2/200/Rev.1, p. 33.]
58. Where a policy decision has been taken at the national level to interfere with the freedom to manifest one's religion or belief with regard to wearing religious symbols issues of commensurability need to be thoroughly respected both by the administration and during possible legal review. For this purpose, the following questions should be answered in the affirmative:
- Was the interference, which must be capable of protecting the legitimate interest that has been put at risk, appropriate?
- Is the chosen measure the least restrictive of the right or freedom concerned?
- Was the measure proportionate, i.e. balancing of the competing interests?
- Would the chosen measure be likely to promote religious tolerance?
- Does the outcome of the measure avoid stigmatizing any particular religious community?
59. When dealing with the prohibition of religious symbols, two general questions should always be borne in mind: What is the significance of wearing a religious symbol and its relationship with competing public interests, and especially with the principles of secularism and equality? Who is to decide ultimately on these issues, e.g. should it be up to the individuals themselves, religious authorities, the national administration and courts, or international human rights mechanisms? While acknowledging that the doctrine of "margin of appreciation" may accommodate ethnic, cultural or religious peculiarities, this approach should not lead to questioning the international consensus that "[a]ll human rights are universal, indivisible and interdependent and interrelated", as proclaimed in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993.
60. The fundamental objective should be to safeguard both the positive freedom of religion or belief as manifested in observance and practice by voluntarily wearing or displaying religious symbols, and also the negative freedom from being forced to wear or display religious symbols. At the same time, the competing human rights need to be balanced and public interest limitations should be applied restrictively. The Special Rapporteur fully agrees with European Court Judge Tulkens' closing remarks: "Above all, the message that needs to be repeated over and over again is that the best means of preventing and combating fanaticism and extremism is to uphold human rights." [Dissenting opinion of Judge Tulkens in the ECtHR Grand Chamber judgement of 10 November 2005 in the case of Sahin v. Turkey, para. 20.]"
A/65/207, para. 34:
"34. The Special Rapporteur also follows closely the discussions in a number of countries on banning the wearing of specific religious dress and garments. Recently, most related domestic laws or bills were focusing on restrictions with regard to the display in public places of the full head-to-toe Islamic veil. She notes that this discussion on the burka or niqab is not limited to Western States [For example, on 19 May 2010, the Council of Ministers of France approved a bill to ban garments which cover the face in public and to punish those who force someone through threats, violence or misuse of a position of authority to cover her face because of her sex. On 4 May 2010, the Parliament of the Swiss canton of Aargau voted to introduce a motion in the Federal Assembly of Switzerland that would forbid people from wearing the niqab in public places. On 29 April 2010, the Lower House of Parliament of Belgium voted in favour of a bill which bans any clothing that conceals the face in public space, including on the street. Provincial legislation introduced in March 2010 in the Canadian province of Quebec stipulates that Muslim women would need to uncover their faces when dealing with Quebec government services or when they are employees of the province. See also the latest report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (A/HRC/15/53, paras. 46-60).] but that related decisions have also been issued in other regions.[The High Court of Bangladesh, for example, issued a verdict on 8 April 2010, ordering the Ministry of Education to ensure that women who are employed in public institutions are not required to wear the veil against their will. In January 2010, the Indian Supreme Court ordered that burka-clad women cannot be issued with voter identity cards, rejecting the argument that religion prohibits them from lifting their veils. According to a law passed in 2006 in Kuwait, women with covered faces are not allowed to drive cars in Kuwait.] In her 2006 report to the Commission on Human Rights, the Special Rapporteur already analysed some factual aspects, the legal framework and international case law with regard to religious symbols in general. In this regard, she developed a set of general criteria to balance competing human rights, to assist States in reviewing and drafting legislation on the right to freedom of religion or belief.[E/CN.4/2006/5, paras. 51-60.] The Special Rapporteur identified some “aggravating indicators”, i.e. legislative and administrative actions which typically are incompatible with international human rights law, for example if exceptions to the prohibition of wearing religious symbols are tailored to the predominant or incumbent religion or belief. At the same time, the Special Rapporteur also referred to “neutral indicators”, for example if the interference is crucial to protect the rights of women, religious minorities and vulnerable groups or if the wearer must be properly identifiable, e.g. on an identity card photograph or at security checks. She would like to reiterate that the fundamental objective should be to safeguard both the positive freedom of religion or belief, as manifested by voluntarily displaying religious symbols, and also the negative freedom from being forced to display religious symbols. Special attention should be paid to the protection of women’s rights, in particular in the context of wearing the full head-to-toe veil."
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