Abstract
There are over 300 million indigenous people in the world and they are in every continent. The United Nations, regional human rights systems, and numerous countries have already recognized that indigenous people are specifically entitled to several rights, which include the right to freedom of religion or belief, and at least some dimensions of the collective right to self-determination. According to the United Nations Declaration on the Rights of Indigenous Peoples of 2007, the latter ensures that indigenous peoples may freely determine their political status and pursue their economic, social and cultural development. In relation to the former, freedom of religion or belief is a human right that might be exercised individually or collectively with others, comprising the right of indigenous people to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies, the protection of their religious sites and ceremonial objects, and the right to the repatriation of their human remains. This paper provides a critical evaluation of the potential normative collisions between the right to self-determination, minority rights and freedom of religion or belief, and concludes that self-determination advances freedom of religion or belief and, at the same time, self-determination is limited by freedom of religion or belief. At the intersection of these norms lies the right of indigenous groups to maintain their own religious and cultural traditions without external coercive intervention (freedom for religion), their protection against cultural assimilation by the majority religion (external freedom from religion), the individual right to leave or not to practice the community’s religion (internal freedom from religion), and the freedom against religious internal oppression and persecution (freedom within religion).
A draft version of this chapter was presented at the Fourth ICLARS Conference “Freedom of/for/from/in Religion: Differing Dimensions of a Common Right” of the International Consortium for Law and Religion Studies, which was held at St. Hugh’s College, University of Oxford, United Kingdom, September 8–11, 2016.
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Notes
- 1.
UN Doc.E/CN.4/Sub.2/1986/7/Add.1-4.
- 2.
UN Doc. E/CN.4/Sub.2/AC.5/2005/2, 4—Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, April 2005, para. 16.
- 3.
- 4.
“Article 4. Nothing in this Declaration may be interpreted as implying for any State, people, group, or person any right to engage in any activity or to perform any act contrary to the Charter of the Organization of American States or the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.”
- 5.
Article 18.
- 6.
See International Standards on Freedom of Religion or Belief—Digest on Freedom of Religion or Belief. Available at http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx. For a comment on this catalogue, see Bielefeldt, Ghanea and Wiener (2016).
- 7.
Universal Declaration, Article 18. “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief […].”
International Covenant on Civil and Political Rights, Article 18.1: “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 […].”
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 1.1: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice […].”
Human Rights Committee general comment 22, para. 3: “Article 18 does not permit any limitations whatsoever on the freedom of thought and conscience or the freedom to have or adopt a religion or belief of one’s choice”; para. 5: “The Committee observes that the freedom to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief.”
- 8.
Universal Declaration, Article 18. “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom […] either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
International Covenant on Civil and Political Rights, Article 18.2: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 1.2: “No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.”
General Comment n. 22, para. 5: “Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by Article 25 and other provisions of the Covenant, are similarly inconsistent with Article 18.2. The same protection is enjoyed by holders of all beliefs of a non-religious nature.”
- 9.
International Covenant on Civil and Political Rights, Article 18.1: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include 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.”; Article 18.3: “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.”
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 1.1: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever 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”; Article 1.3: “Freedom to manifest one’s religion or belief 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.”
General Comment n. 22, para. 4: “The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae, and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language, customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.”
- 10.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.a: “In accordance with Article 1 of the present Declaration, and subject to the provisions of Article 1, para. 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: To worship or assemble in connection with a religion or belief […]”; Article 6.c: “To make, acquire and use the necessary articles and materials related to the rites or customs of a religion or belief.”
Commission on Human Rights resolution 2005/40 (para. 4.d), Human Rights Council resolution 6/37 (para. 9.g) and General Assembly resolution 65/211 (para. 12.g) urges States “To ensure, in particular, the right of all persons to worship or assemble in connection with a religion or belief […].”
General Comment n. 22, para. 4: “The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including […] the use of ritual formulae, and objects […].”
- 11.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.1: “To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes.”
Human Rights Council Resolution 6/37, Article 9.e: “The Human Rights Council urges States […] To exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights and humanitarian law, to ensure that religious places, sites, shrines and symbols are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction;” 9.g: “To ensure, in particular, the right of all persons to worship or assemble in connection with a religion or belief and to establish and maintain places for these purposes […].”
General Comment n. 22, para. 4: “The concept of worship extends to […] the building of places of worship.”
- 12.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.c: “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 Resolution 2005/40, Article 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”; Article 4.c “The concept of worship extends to […] the display of symbols […] 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 […].”
- 13.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.h: “To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief.”
General Comment n. 22, para. 4: “The concept of worship extends to […] the observance of holidays and days of rest.”
- 14.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.g: “To train, appoint, elect or designate by succession appropriate leaders […].”
General Comment n. 22, para. 4: “In addition, the practice and teaching of religion or belief 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 […].”
- 15.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.d: “To write, issue and disseminate relevant publications in these areas”; Article 6.e: “To teach a religion or belief in places suitable for these purposes.”
Commission on Human Rights Resolution 2005/40, para. 4.d and Human Rights Council Resolution 6/37, para. 9.g: “Urges States […] To ensure, in particular, […] the right of all persons to write, issue and disseminate relevant publications in these areas.”
General Comment n. 22, para. 4: “In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, […] the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.”
- 16.
International Covenant on Civil and Political Rights, Article 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.”
Convention on the Rights of the Child, Article 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”; Article 29.1.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.”
International Covenant on Economic, Social and Cultural Rights, Article 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.”
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 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.”
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 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 […].”
- 17.
Commission on Human Rights Resolution 2005/40, para. 4.c and 4.e, Human Rights Council Resolution 6/37, para 12.e and 12.h: “Urges States […] To review, whenever relevant, existing registration practices in order to ensure the right of all persons to manifest their religion or belief, alone or in community with others and in public or in private” and “Urges States […] “To ensure that, in accordance with appropriate national legislation and in conformity with international human rights law, the freedom for all persons and members of groups to establish and maintain religious, charitable or humanitarian institutions is fully respected and protected.”
- 18.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.i: “The right to freedom of thought, conscience, religion or belief includes the freedom, “To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.”
- 19.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.b: “To establish and maintain appropriate charitable or humanitarian institutions”; Article 6.f: “To solicit and receive voluntary financial and other contributions from individuals and institutions.”
Commission on Human Rights Resolution 2005/40, para. 4.e and Human Rights Council Resolution 6/37, para. 12.h: “Urges States […] To ensure that, in accordance with appropriate national legislation and in conformity with international human rights law, the freedom for all persons and members of groups to establish and maintain religious, charitable or humanitarian institutions is fully respected and protected.”
- 20.
General Comment n. 22, para. 11: “Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under Article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from Article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The Committee invites States parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under Article 18 and on the nature and length of alternative national service.”
- 21.
General Comment n. 22, para. 3 “Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in Article 19.1. In accordance with Articles 18.2 and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief.”
- 22.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 5.3: “The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men”; Article 5.5: “Practices of a religion or beliefs in which a child is brought up must not be injurious to his physical or mental health or to his full development, taking into account Article 1, para. 3, of the present Declaration.”
- 23.
International Covenant on Civil and Political Rights, Article 20.2: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” See also the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
- 24.
See Alves (2016).
- 25.
- 26.
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
- 27.
“Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.”
- 28.
Recommendations on Guaranteeing the Rights of Religious Minorities (A/HRC/25/66): “16. States should consider, where appropriate, special measures that address discrimination and inequality experienced by persons belonging to religious minorities. Institutional attention to religious minorities should be strengthened as appropriate to facilitate such measures and improve the mainstreaming of minority issues in national-level bodies, including government ministries or departments working on central concerns for minorities, national human rights institutions, consultative bodies and mechanisms, and other relevant national entities.”
- 29.
See also Wheatley (2005).
- 30.
“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”
- 31.
See, for example, the Report submitted by the Special Rapporteur on Freedom of Religion or Belief (Mrs. Asma Jahandir) to the Human Rights Council (A/HRC/13/40 2009, para. 37): “There are also further issues of concern in relation to her mandate, which seem to be more prevalent in particular regions or countries. For example, some domestic registration procedures for religious communities are applied in a discriminatory manner by the authorities, often curbing the freedom of religion or belief of minority communities such as new religious movements or indigenous peoples. In addition, she is concerned about undue State interference in religious teaching and dissemination of related publications, for example when the authorities censor, monitor and write sermons or persecute religious leaders. Furthermore, the Special Rapporteur has noticed a number of restrictions imposed on different forms of religious expression, for example, on the wearing of distinctive clothing or head coverings. At the same time, she is concerned about reports of women who are forced to wear religious dress in public in certain countries.”
- 32.
See, for example, the Report submitted by the Special Rapporteur on Freedom of Religion or Belief (Mr. Abdelfattah Amor) after his country visit to Argentina, presented to the Comission on Human Rights (E/CN.4/2002/73/Add.1, para. 112-113 and 150): “C. Situation of indigenous peoples […] 112. The principal problem regarding freedom of religion and freedom to manifest one’s religion or belief relates to the question of land. Land is the sine qua non for the maintenance and development of an indigenous identity. A Mapuche tenet holds that ‘the land does not belong to the Mapuche, the Mapuche belongs to the land’. The land, the source of identity, thus has a religious dimension and meaning for indigenous peoples. It constitutes the matrix for their beliefs and a support for the manifestation of those beliefs. 113. The claims of the indigenous communities regarding the restitution of property thus implicitly embody a religious dimension, namely, access to sacred sites and to graves. The situation varies widely in practice: some provinces have granted definitive community property title to land, others have recognized indigenous lands without granting property title; disputes involving private property have led to instances of expropriation or have yet to be resolved. Serious disputes remain, particularly involving companies (for example, in Patagonia, the expropriation by multinational companies, including Benetton, of land belonging to the Mapuche community), as well as State institutions (for example, the army). In this connection INAI has been criticized for a lack of consultation with indigenous groups, the meagre results obtained and, above all, in the view of some, a paternalistic approach to indigenous issues. […] 150. […] The process of returning land to indigenous people, as the touchstone of their identity, is thus a precondition for providing access to holy sites and burial grounds and hence for legitimate religious or spiritual activities.”
- 33.
In two cases, the Inter-American Court of Human Rights found violations on the rights of members of indigenous groups to freedom of religion and belief: Plan de Sánchez Massacres vs. Guatemala (2004, para. 36 and 52) and Río Negro Massacres v. Guatemala (2012, para. 153-165). In the latter, the Court considered that Guatemala had violated Article 5.1 of the American Convention, in relation to Articles 12.1 and 1.1 thereof, to the detriment of the members of the community of Río Negro, by failing to protect the right to bury the deceased, to live in their sacred lands and, to freely maintain their social and family structures. In the former, the Court recognized that the state violated Articles 12.2, 12.3, 13.2, and 13.5, since it failed to guarantee freedom to manifest religious, spiritual, and cultural beliefs of the families of the massacre victims and community members. In Río Negro Massacres v. Guatemala, the Court also recognized that farewell rites for the dead in accordance to religious beliefs were an important element for the Mayan religion and culture and that, even if the American Convention does not explicitly establish the right to “bury the dead,” it had to be protected. The Court also reaffirmed that the special relationship of the indigenous peoples with their ancestral lands is not merely because they constitute their main means of subsistence, but also because they are an integral part of their worldview, religious beliefs (“sacred lands”) and, consequently, their cultural identity or integrity, which is a fundamental and collective right of the indigenous communities that must be respected in a multicultural, pluralist, and democratic society.
- 34.
“Article 4.1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from Articles 6, 7, 8 (para. I and 2), 11, 15, 16 and 18 may be made under this provision. […].”
- 35.
Recommendations on Guaranteeing the Rights of Religious Minorities (A/HRC/25/66): “25. Harmful traditional religion- or belief-based practices that violate the human rights of any individual should be prohibited by law and addressed in conformity with international standards. Where appropriate, consultations should be undertaken with leaders and members of religious communities to address such issues and their causes.”
- 36.
See also the General Recommendation n. 32 on The meaning and scope of special measures in the International Convention on the Elimination of All Forms [of] Racial Discrimination of the UN Committee on the Elimination of Racial Discrimination.
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Alves, R.V.S. (2020). Law and Religion in the Encounter of Cultures: The Normative Conflicts Between Freedom of Religion or Belief and the Rights of Indigenous Peoples. In: Souza Alves, R. (eds) Latin American Perspectives on Law and Religion . Law and Religion in a Global Context, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-030-46717-3_2
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