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FREEDOM OF RELIGION OR BELIEF

The right of parents to ensure the religious and moral education of their children

ICCPR

Art. 18 (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."

CRC

Art. 14 (2): "States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child [...] (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;".

ICESCR

Art. 13 (3): "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."

Migrant Workers Convention

Art. 12 (4): "States Parties to the present Convention undertake to have respect for the liberty of parents, at least one of whom is a migrant worker, and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions."

1981 Declaration of the General Assembly

Art. 5:

1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.

2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle. [...]

4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle.

[Go back to the Framework for communications]

Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

A/HRC/16/53, paras. 47-62:

“D.          Religious instruction in schools

47.          As elaborated above (see paras. 27-40), it is crucial to distinguish conceptually between information about religions or beliefs on the one hand and religious instruction on the other. On a practical level there are a number of overlaps which pose problems in the actual application of that distinction. [One example would be a school subject that “combines education on religious knowledge with practising a particular religious belief, e.g. learning by heart of prayers, singing religious hymns or attendance at religious services”. See Human Rights Committee, communication No. 1155/2003, Leirvåg v. Norway, Views adopted on 3 November 2004, para. 14.6.]  In addition, different pedagogical approaches may add nuances, for example if teaching methods encourage pupils to “learn about religions” [“‘Learning about religion’ includes enquiry into, and investigation of, the nature of religions, their beliefs, teachings and ways of life, sources, practices and forms of expression. It covers students’ knowledge and understanding of individual religions and how they relate to each other as well as the study of the nature and characteristics of religion. It includes the skills of interpretation, analysis and explanation. Pupils learn to communicate their knowledge and understanding using specialist vocabulary.” (Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, pp. 45-46, footnote 52).] or to “learn from religion” [“‘Learning from religion’ is concerned with developing students’ reflection on and response to their own and others’ experiences in the light of their learning about religion. It develops pupils’ skills of application, interpretation and evaluation of what they learn about religion.” (Ibid.).]. At any rate, on a normative level conceptual clarity remains of strategic importance to pursue a human rights approach and to do justice to the ambivalence of the school being a place of learning, social development and communicative interaction but also a place in which situations of particular vulnerability can occur.

48.          Religious instruction, i.e. instruction in a particular religion or belief based on its tenets, can take place in different constellations. The following paragraphs will primarily focus on religious instruction given in the public school system, i.e. the system of public education provided by the State. While the role of private schools, including denominational schools, will also be mentioned, the Special Rapporteur will leave aside in this chapter those forms of religious instruction that are organized in religious institutions – such as churches, mosques, pagodas, synagogues or temples – and attended by students outside of school.

49.          In many countries religious instruction in the above defined sense constitutes an integral part of public school teaching and maybe even of the mandatory school curriculum. Such practice may reflect the interests and demands of large parts of the population. Many parents may wish that their children be familiarized with the basic doctrines and rules of their own religion or belief and that the school take an active role in that endeavour. In the understanding of many parents, the development of knowledge and social skills of their children through school education would be incomplete unless it includes a sense of religious awareness and familiarity with their own religion or belief. Hence the provision of religious instruction in the public school system may be based on the explicit or implicit wishes of considerable currents within the country’s population.

50.          However, given the ambivalence of the school situation – including possible situations of particular vulnerability for some persons or groups – religious instruction in the public school system must always go hand in hand with specific safeguards on behalf of members of religious or belief minorities. The Human Rights Committee has also emphasized that instruction in a religious context should “respect the convictions of parents and guardians who do not believe in any religion” [See Human Rights Committee, communications  No. 40/1978, Hartikainen v. Finland, Views adopted on 9 April 1981, para. 10.4, and Leirvåg v. Norway, para. 14.2.]. A minimum requirement would be that members of minorities have the possibility of “opting out” of a religious instruction that goes against their own convictions. Such exemptions should also be available for persons adhering to the very same faith on which instruction is given, whenever they feel that their personal convictions – including maybe dissenting convictions – are not respected. Moreover, the possibility of opting out should not be linked to onerous bureaucratic procedures and must never carry with it de jure or de facto penalties. Finally, wherever possible, students not participating in religious instruction due to their different faith should have access to alternative courses provided by the school.

51.          The decision whether or not to opt out of religious instruction must be left to students or their parents or guardians who are the decisive rights holders in that respect. With regard to article 18, paragraph 4, of the International Covenant on Civil and Political Rights, the Human Rights Committee has noted that “public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians”. [Human Rights Committee, general comment No. 22, para. 6. See also Committee on Economic, Social and Cultural Rights, general comment No. 13 (1999) on the right to education, para. 28.] Moreover, attention must be given to the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right to freedom of thought, conscience and religion in a manner consistent with the evolving capacities of the child. [Art. 14, para. 2, of the Convention on the Rights of the Child.] The concept of “evolving capacities” is crucial since it acknowledges that the child at some point “comes of age” and should be able to make personal choices in matters of religion or belief. Due weight should be given to the views of the child in accordance with his or her age and maturity, which need to be assessed on a case-by-case basis. [See Committee on the Rights of the Child, general comment No. 12 (2009) on the right of the child to be heard, para. 29. With regard to the concept of “evolving capacities” in the context of the child’s right to freedom of religion or belief see A/64/159, paras. 26-28.]

52.          Unfortunately, however, reports from various countries indicate that the above mentioned principles – which constitute an integral part of freedom of religion or belief – are not always respected. In some countries students belonging to minorities allegedly experience formal or informal pressure to attend religious instruction given on the sole basis of the country’s dominant religious tradition. The same can happen to adherents of alternative interpretation of, or dissenting views on, the dominant religion on which school instruction is based. Even worse, incidents have been reported that in some schools members of minorities or persons with dissenting views have to express criticism of their own conviction as a precondition to take their school examinations. Exemptions for students adhering to religions or beliefs other than those instructed in school, if available at all, are sometimes linked to onerous application procedures or stigmatizing practices, with the result that students and parents often refrain from making use of them.

53.          In this context, it is worth emphasizing that practices which forcibly expose students to religious instruction against their own will violate article 18, paragraph 2, of the International Covenant on Civil and Political Rights which states that “no one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice”. This forum internum component of freedom of religion or belief enjoys particularly strong protection under international human rights law as no derogation from article 18 of the Covenant may be made, not even in a time of public emergency which threatens the life of the nation. [International Covenant on Civil and Political Rights, art. 4; see also Human Rights Committee, general comment No. 22, para. 1.]  In addition, coercive practices may also violate the rights of parents “to ensure the religious and moral education of their children in conformity with their own convictions” (art. 18, para. 4, of the Covenant).

54.          The situation of religious instruction in private schools warrants a distinct assessment. The reason is that private schools, depending on their particular rationale and curriculum, might accommodate the more specific educational interests or needs of parents and children, including in questions of religion or belief. Indeed, many private schools have a specific denominational profile which can make them particularly attractive to adherents of the respective denomination, but frequently also for parents and children of other religious or belief orientation. In this sense, private schools constitute a part of the institutionalized diversity within a modern pluralistic society. States are not obliged under international human rights law to fund schools which are established on a religious basis, however, if the State chooses to provide public funding to religious schools, it should make this funding available without any discrimination. [Human Rights Committee, communication No. 694/1996, Waldman v. Canada, Views adopted on 3 November 1999, para. 10.6.]

55.          Furthermore, the existence of private denominational schools – or the possibility of their establishment – cannot serve as an excuse for the State not to pay sufficient attention to religious and belief diversity in public school education. Even though private denominational schools may be one way for parents to ensure a religious and moral education of their children in conformity with their own convictions, the public school system must also respect religious and belief diversity. In this context, the inaugural session of the Forum on Minority Issues, held in December 2008, recommended that “where separate educational institutions are established for minorities for linguistic, religious or cultural reasons, no barriers should be erected to prevent members of minority groups from studying at general educational institutions, should they or their families so wish”. [See the report of the independent expert on minority issues (A/HRC/10/11/Add.1), para. 27.]

56.          Another caveat concerns situations in which private denominational schools have a de facto monopoly in a particular locality or region, with the result that students and parents have no option to avoid school education based on a denomination different from their own religious or belief conviction. In such situations it falls upon the State, as the guarantor of human rights, to ensure that freedom of religion or belief is effectively respected, including the right of students not to be exposed to religious instruction against their will as well the right of parents to ensure a religious and moral education of their children in conformity with their own convictions.

IV.          Conclusions and recommendations

57.          Freedom of religion or belief and school education is a multifaceted issue that entails significant opportunities and far-reaching challenges. The school is the most important formal institution for the realization of the right to education. It provides a place of learning, social development and social encounter. At the same time, the school is also a place in which authority is exercised and some persons, including members of religious or belief minorities, may find themselves in situations of vulnerability. Given this ambivalence of the school situation, safeguards to protect the individual’s right to freedom of religion or belief are necessary. Special attention must be given to the forum internum component of freedom of religion or belief which enjoys the status of an absolute guarantee under international human rights law. With regard to the freedom to manifest one’s religion or belief, both the positive and the negative aspects of that freedom must be equally ensured, i.e. the freedom to express one’s conviction as well the freedom not to be exposed to any pressure, especially from State authorities or in the State institution, to practice religious or belief activities against one’s will.

58.          Schools may offer unique possibilities for constructive dialogue among all parts of society and human rights education in particular can contribute to the elimination of negative stereotypes that often adversely affect members of religious minorities. However, freedom of religion or belief and school education has also sparked controversy in many societies, particularly with regard to contentious issues such as religious symbols in the school context and religious instruction (see paras. 20-56 above).

59.          With regard to religious symbols, especially in public schools, the Special Rapporteur would like to reiterate that each case has to be decided according to its own circumstances. If restrictions on the wearing of religious symbols are deemed necessary, these restrictions should not be applied in a discriminatory manner and they must be directly related and proportionate to the specific need on which the restrictions are predicated. At the same time, for example, the rights of the child and their parents or legal guardians may justify limiting the freedom of teachers who wish to manifest their religion or belief by wearing a religious symbol. In all actions concerning children, the “best interests” of the child shall be a primary consideration. With regard to the State-prescribed mandatory display of religious symbols in classrooms, States should uphold confessional neutrality in public education in order to include students of different religions or beliefs on the basis of equality and non-discrimination.

60.          In general, educational policies should aim to strengthen the promotion and protection of human rights, eradicating prejudices and conceptions incompatible with freedom of religion or belief, and ensuring respect for and acceptance of pluralism and diversity in the field of religion or belief as well as the right not to receive religious instruction inconsistent with one’s conviction. Efforts should be made to establish advisory bodies at different levels that take an inclusive approach to involving different stakeholders in the preparation and implementation of school curricula related to issues of religion or belief and in the training of teachers.

61.          The Special Rapporteur would like to refer to his predecessors’ reports on these issues and to their involvement in the elaboration of the final document of the International Consultative Conference on School Education in relation to Freedom of Religion or Belief, Tolerance and Non-discrimination and the Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools. In this context, the Special Rapporteur reiterates that States, at the appropriate level of Government and in accordance with their educational systems, should favourably consider:

(a)           Providing teachers and students with voluntary opportunities for meetings and exchanges with their counterparts of different religions or beliefs;

(b)           Encouraging exchanges of teachers and students and facilitating educational study abroad;

(c)           Strengthening a non-discriminatory perspective in education and of knowledge in relation to freedom of religion or belief at the appropriate levels;

(d)           Ensuring equal rights to women and men in the field of education and freedom of religion or belief, and in particular reinforcing the protection of the right of girls to education, especially for those coming from vulnerable groups;

(e)           Taking appropriate measures against all forms of intolerance and discrimination based on religion or belief which manifest themselves in school curricula, textbooks and teaching methods;

(f)            Evaluating existing curricula being used in public schools that touch upon teaching about religions and beliefs with a view to determining whether they promote respect for freedom of religion or belief and whether they are impartial, balanced, inclusive, age appropriate, free of bias and meet professional standards;

(g)           Assessing the process that leads to the development of curricula on teaching about religions and beliefs to make sure that this process is sensitive to the needs of various religious and belief communities and that all relevant stakeholders have an opportunity to have their voices heard;

(h)           Examining to what extent existing teacher-training institutions are capable of providing the necessary professional training for teaching about religions and beliefs in a way that promotes respect for human rights and, in particular, for freedom of religion or belief;

(i)            Determining the extent to which teacher-training institutions provide sufficient knowledge of human rights issues, an understanding of the diversity of religious and non-religious views in society, a firm grasp of various teaching methodologies (with particular attention to those founded on an intercultural approach) and significant insight into ways that one can teach about religions and beliefs in a respectful, impartial and professional way.

62.          Finally, the Special Rapporteur would like to reiterate that the role of parents, families and legal guardians is an essential factor in the education of children in the field of religion or belief. Consequently, special attention should be paid to encouraging positive attitudes and, in view of the best interest of the child, to supporting parents to exercise their rights and fully play their role in education in the field of tolerance and non-discrimination, taking into account the relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief and the Convention on the Rights of the Child.”

[Go back to the Framework for communications]

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