Religion

Human
Rights

Religion and Human Rights 2 (2007) 317

www.brill.nl/rhrs

The Mandate of the Special Rapporteur on Freedom of

Religion or BeliefInstitutional, Procedural and
Substantive Legal Issues
Michael Wiener*
Associate Human Rights Ocer, UN Oce of the High Commissioner for Human Rights

Abstract
The Role of the UN Special Rapporteur on Freedom of Religion or Belief has already been outlined by
Carolyn Evans in the rst issue of Religion and Human Rights on pages I:7596. In the meantime, a doctoral thesis on the mandate of the Special Rapporteur was submitted by Michael Wiener to the Law
Faculty at Trier University in Germany. The following article is the annotated English summary of
this 350 pages strong thesis which has recently been published with the title Das Mandat des UNSonderberichterstatters ber Religions- oder WeltanschauungsfreiheitInstitutionelle, prozedurale und materielle Rechtsfragen (Peter Lang, Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien,
2007). It explores various legal issues of the mandate in terms of institutional, procedural and substantive
questions that have arisen in the Special Rapporteurs mandate practice from 1986 to 2006.
Keywords
UN Human Rights Council; Special Rapporteurs; privileges and immunities of mandate holders; letters
of allegation and country visits; customary international law; subsidiary means for the determination of
rules of law

I. Institutional Issues
A. Development of the Mandate
The thematic mandate of the Special Rapporteur on religious intolerance was
created by the UN Commission on Human Rights in its resolution 1986/20 on
10 March 1986 and subsequently the mandate has been gradually expanded.
According to the initial resolution, the Special Rapporteur was appointed for
one year in order to examine incidents and governmental actions in all parts

* Dr. Michael Wiener LL.M. (London), Ass. iur., Dr. iur. (Trier) has been working in the Special
Procedures Branch of the Oce of the High Commissioner for Human Rights (OHCHR) in Geneva
since November 2006. The research of his doctoral thesis on the mandate of the UN Special Rapporteur
on freedom of religion or belief was supervised by Prof. Dr. Gerhard Robbers at Trier University in Germany. The views expressed in the present English summary of this thesis (October 2006) are those of the
author and do not necessarily reect the views of the United Nations.
Koninklijke Brill NV, Leiden, 2007

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DOI: 10.1163/187103107X218911

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M. Wiener / Religion and Human Rights 2 (2007) 317

of the world and to recommend remedial measures against intolerance and

discrimination based on religion or belief. In carrying out his mandate the Special Rapporteur was requested to seek credible and reliable information from
Governments, as well as specialized agencies, intergovernmental organizations and
non-governmental organizations, including communities of religion or belief .1
During the rst reporting stage (from 1986 to 1987), the initial mandate
holder Mr. Angelo Vidal dAlmeida Ribeiro from Portugal managed to clear up
the fundamental objections against the mandate which had been raised by some
member states of the UN Commission on Human Rights. Having secured the
continuation of the mandate, Mr. dAlmeida Ribeiro in the second reporting
stage (from 1988 to 1993) started reproducing his correspondence with the Governments, thus reporting on individual cases and naming the countries concerned.
This approach had to be temporarily abandoned due to nancial constraints and
due to the introduction of page limits during the third reporting stage (from
1994 to 1999), but the second mandate holder Mr. Abdelfattah Amor from Tunisia successfully introduced new working methods such as urgent appeals, in situ
visits and interim reports to the UN General Assembly. In addition to the traditional task of combating all forms of religious intolerance, Mr. Amor focussed on
the promotion of the freedom of religion or belief and on prevention activities.
The gradual enlargement of the mandate through resolutions by the Commission
on Human Rights and the General Assembly was manifested in the year 2000,
when the title was renamed as Special Rapporteur on freedom of religion or
belief .2 Taking up this development during the fourth reporting stage (from
2000 to 2003), Mr. Amor enriched the mandate with new approaches such as
drafting thematic studies and initiating an international consultative conference
on School Education in Relation with Freedom of Religion and Belief, Tolerance
and Non-Discrimination, which adopted the 2001 Madrid nal document.3 The
current mandate holder, Ms. Asma Jahangir from Pakistan, took this acquis as the
starting point during the fth reporting stage (from 2004 to 2005), introducing
a detailed reproduction of the correspondence with the Governments together
with legal observations in a separate addendum to her annual reports to the Commission on Human Rights. The current reporting stage (since 2006) is marked by
1
Commission on Human Rights resolution 1986/20 of 10 March 1986, operative para. 4. For
a detailed discussion of the wording of this resolution see Michael Wiener, Das Mandat des UNSonderberichterstatters ber Religions- oder WeltanschauungsfreiheitInstitutionelle, prozedurale und materielle Rechtsfragen (Peter Lang, Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien,
2007), pp. 2028.
2
See Commission on Human Rights resolution 2000/33 of 20 April 2000, operative para. 11,
approved by Economic and Social Council decision 2000/261 of 28 July 2000; General Assembly resolution 55/97 of 4 December 2000, operative para. 11.
3
The Madrid Final Document is published in the Appendix of the Report submitted by Mr. Abdelfattah
Amor, Special Rapporteur on freedom of religion or belief, in accordance with Commission on Human Rights
resolution 2000/33 (UN Doc. E/CN.4/2002/73), Appendix.

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the transition from the Commission on Human Rights to the new UN Human
Rights Council, which has been established on 15 March 2006 as a subsidiary
organ of the General Assembly.4 It remains to be seen in which direction the
mandate of the Special Rapporteur on freedom of religion or belief will evolve
within this new institutional framework, especially because the Human Rights
Council is requested to review and, where necessary, to improve and to rationalize
all mandates by June 2007.
This development from 1986 to 2006 illustrates how much the mandate
depends on the commitment and the establishing of priorities by the individual
mandate holder. Each of the Special Rapporteurs dAlmeida Ribeiro, Amor and
Jahangir have left his or her imprint on the mandate, gradually enlarging it in
cooperation with the Commission on Human Rights, the Economic and Social
Council (ECOSOC) and the General Assembly. The reporting practice has shown
that Special Rapporteurs can play a role as eyes and ears5 of the Commission on
Human Rights, and that they can also function as its brain and mouth within
the limits of their mandate.
B. Legal Status of Mandate Holders
The selection of mandate holders is traditionally left to the chairman of the Commission on Human Rights, who is only supposed to consult within the Bureau
before appointing a Special Rapporteur. This non-transparent and politicized selection process has been criticized and it is to be reformed by the Human Rights
Council. Initially, there was no time limit for mandates but in 1999 any individuals tenure in a given mandate, whether thematic or country-specic, was restricted
to six years.6 At the renewal of the mandate of the Special Rapporteur on freedom
of religion or belief in 2001, however, Mr. Amor fell under a transitional provision and consequently he could stay in his mandate until 2004 for a total period
of eleven years. The option to discontinue or merge certain special procedures
might arise in the framework of the mandate review process in 2007 by the
Human Rights Council.
Mandate holders may be susceptible to legal risks in terms of national civil
actions (e.g. defamation law suits) or penal prosecution (e.g. charges of blasphemy
or proselytism) as well as personal attacks. In respect of words spoken and acts
done by them in the course of the performance of their mission, these experts are

4
See General Assembly resolution 60/251 of 15 March 2006 and Economic and Social Council
resolution 2006/2 of 22 March 2006.
5
For examples of this description as eyes and ears see the summary records of the Commission on
Human Rights (UN Doc. E/CN.4/1994/SR.33, para. 26 and UN Doc. E/CN.4/1994/SR.59, para. 45)
and of the Economic and Social Council (UN Doc. E/1995/SR.51, p. 12).
6
See Commission on Human Rights Chairpersons Statement of 29 April 1999 (UN Doc. E/1999/23,
para. 552).

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accorded immunity from legal process of any kind which continues to be accorded
notwithstanding that the persons concerned are no longer employed on missions
for the United Nations according to Article VI Section 22 (b) of the Convention
on the Privileges and Immunities of the United Nations.7 However, under the
conditions of its Article VI Section 23, the Secretary-General shall have the right
and the duty to waive the immunity of any expert. Even if the Secretary-General
has conrmed that the expert acted within the scope of his or her functions and
has consequently informed the government of the member State in question, the
mandate holders immunity does not seem to be adequately protected because
several national courts have not accepted the Secretary-Generals nding as binding or because they ordered a mandate holder to bear the legal expenses. Although
Mr. Dato Param Cumaraswamy, the Special Rapporteur on the independence of
judges and lawyers from 1994 to 2003, was indemnied by the United Nations
for any costs, expenses or damages arising out of the proceedings in Malaysia8 it
does not seem to be a satisfying solution that the United Nations should need to
submit a claim for reimbursement to the Government.
The two pertinent advisory opinions, delivered by the International Court of
Justice in 1989 (Mazilu case9) and 1999 (Cumaraswamy case10), have elucidated
certain aspects and notions of the Convention on the Privileges and Immunities
of the United Nations, but carrying out a mandate still lacks sucient legal security. A potential lacuna of the protection is triggered by the ICJ statement that
national courts may set asidealbeit only for the most compelling reasons11
the nding by the Secretary-General concerning the experts immunity. The UN
Secretariats reasoning of an exclusive authority of the Secretary-General in matters of assertion and waiver of immunity would have oered a higher standard of
protection for the Special Rapporteurs, leaving it up to the Government to refer
the dierence to the ICJ according to Article VIII Section 30 of the 1946 Convention. Furthermore, the two advisory opinions of the ICJ have not developed
transparent criteria, which could be used by national or international courts in
order to scrutinize the Secretary-Generals nding or to evaluate themselves the
adherence to the limits of the mandate. In this regard the set of criteria used in

Convention on the Privileges and Immunities of the United Nations, adopted on 13 February 1946.
See the letter dated 22 May 2003 from the Secretary-General to the President of the Economic and
Social Council (UN Doc. E/2003/78): The United Nations therefore maintains, in order to full its
obligations to hold Dato Param Cumaraswamy nancially harmless, that the Government of Malaysia
should reimburse the Organization in the amount of US$ 118,145.91 for the legal expenses it paid on
behalf of Dato Param Cumaraswamy in connection with the four lawsuits.
9
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations, 15 December 1989, International Court of Justice, Advisory Opinion, I.C.J. Reports 1989, p. 177.
10
Dierence relating to immunity from legal process of a Special Rapporteur of the Commission on Human
Rights, 29 April 1999, International Court of Justice, Advisory Opinion, I.C.J. Reports 1999, p. 62.
11
Ibid., p. 87 (para. 61).
8

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the US-American precedent case of Gerritsen v. Escobar Y Cordova12 might be

transferred to the interpretation of the Convention on the Privileges and Immunities of the United Nations.
Several UN regulations which have been passed since the ICJ advisory opinion in 1999 serve to clarify the limits of the mandates and thus they may partly
prevent the emergence of disputes.13 At the same time, they restrict the carrying
out of a mandate and consequently any guidelines should only be introduced
to the extent that they are imperative. It should not be overlooked that the Special Rapporteurs monitoring role also involves asking awkward questions and
denouncing human rights violations in certain countries. Of course it is an
important factor for the discussion that the criticized Governments, enterprises,
religious communities or individuals may defend themselves against allegations.
However, this should not lead to an intimidation of the mandate holders or to
their self-censorship and ultimately to a dilution of the special procedures controlling function.
Special procedures were established as subsidiary organs of the Commission on
Human Rights according to article 7 section 2 UN Charter and thus they used to
be linked to the principle organ ECOSOC. As the Commission on Human
Rights was replaced in June 2006 with the Human Rights Council, the latter is
now a subsidiary organ of the General Assembly. Although special procedures
holders are appointed as independent experts in their individual capacity it has
been the practice of the Commission on Human Rights to be able to instruct the
mandate holders and to correct their reports. In view of this potential inuence it
is possible to attribute the reports and the acts done by them in the course of their
mandate to the United Nations. Apart from these internal instructions from the
Commission on Human Rights, however, mandate holders are not subject to any
external orders, neither from their home Governments nor from any other UN
member state. Considering the universal nature of their mandates, the thematic
special procedures are allowed and even obliged to carry out mandate related
investigations also in their home countries if there are pertinent allegations. The
mandate holders risk of being sued or prosecuted appears to be increased in his
or her country of origin or place of residence. During their mandate and even
after its termination they are accorded immunity from legal process of any kind
in respect of words spoken or written and acts done by them in the course of the
performance of their mission. As Special Rapporteurs are appointed in their personal capacity, a potential change of nationality does not inuence their position
as mandate holders.

12

Gerritsen v. Escobar Y Cordova, 721 F.Supp. 253259 (C.D.Cal. 1988).

Regulations Governing the Status, Basic Rights and Duties of Ocials other than Secretariat Ocials,
and Experts on Mission, adopted by General Assembly resolution 56/280 of 27 March 2002 (see also the
commentary in UN Doc. ST/SGB/2002/9).
13

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II. Procedural Issues

The resolutions by the Commission on Human Rights, ECOSOC and the General Assembly have only occasionally instructed the Special Rapporteur on freedom of religion or belief with regard to procedural matters. Consequently, the
three mandate holders dAlmeida Ribeiro, Amor and Jahangir have been able to
develop throughout the past twenty years a proper set of activities for their mandate. As a result, a specic procedural framework has emerged within the scope of
their letters of allegation, urgent appeals, in situ visits and thematic studies.
A. Letters of Allegation/Urgent Appeals
The essential fact nding instrument of the Special Rapporteur consists in letters
of allegation respectively urgent appeals. Having evaluated the received allegations and further information, the mandate holder may decide to send either a
letter of allegation or an urgent appeal concerning pressing issues to the Government concerned. Since the assumption of mandate holder Amor in 1993, it is
standard practice that the non-exhaustion of domestic remedies does not prevent
the Special Rapporteur from dealing with a case. Furthermore, the Special Rapporteur may send letters of allegation or urgent appeals even when the matter has
already been submitted to another procedure of international investigation or
settlement. Contrary to the enumeration of legitimate sources for the carrying
out of the mandate in the initial resolution of the Commission on Human Rights,
the Special Rapporteurs have also considered information from individual persons who are not aliated with a non-governmental organization. Subsequently,
this practice of the mandate since 1989 has been implicitly approved by the Commission on Human Rights. With regard to the evaluation of allegations it is
remarkable that the community of states accepts the universal mandate of the
Special Rapporteur ratione loci and ratione temporis even beyond the formal criterion of UN membership.14
Given the fact that complainants neither need to prove their own current
injury nor the reasons for acting in the name of the alleged victim, it may be
questionable in individual cases whether the alleged victim would actually support the complaint. As far as that goes it seems advisable to develop and document mandate rules in order to prevent an abuse of such an actio popularis,
especially as the names of alleged victimsbut not those of the complainants
are disclosed to the Governments and published in the reports since 1989. Occasionally, the three mandate holders have also published the names of alleged
perpetrators without giving the concerned individuals or their Governments an
14
Cf. the replies from the Governments of the Republic of Korea, Switzerland and Nauru at a time
when they were not yet UN member states (see UN Doc. E/CN.4/1989/44, paras. 5960; UN Doc.
E/CN.4/1993/62, paras. 6263; UN Doc. A/50/440, para. 37).

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opportunity to comment on the allegations. Although private persons traditionally only have a limited status under public international law, the individuals
directly concerned shouldaccording to the principle audiatur et altera parsget
a hearing at least on the national level when the Government drafts its response
and subsequently the Special Rapporteur should take this into account in the
published report.
While Special Rapporteur dAlmeida Ribeiro did not x appropriate deadlines
for state responses, his mandate successor Amor established in the annual report
1994 a period of two months for letters of allegations and a period of two weeks
for urgent appeals. However, the response rate of 38.8 per cent concerning state
replies in time and a total response rate of 61.6 per cent during the period from
1988 to 2004 does not reect a satisfactory level of cooperation from a number
of Governments. Initially, there was also a limited willingness to react on urgent
appeals but the response rate rose gradually during the following years. Since
assuming the mandate in 2004, Special Rapporteur Jahangir has been sending the
majority of her urgent appeals jointly with other special procedures holders which
has lead to a slightly improved response rate. Twenty Governments, however,
have never reacted to letters of allegations from the Special Rapporteur on freedom of religion or belief since the beginning of the mandate in 1986. The most
eective leverage, which has been approved by the Commission on Human Rights
since 1988, consists in publishing the allegations in the annual reports, even when
the Government concerned has not reacted on the Special Rapporteurs letter.
B. Country Visits
Given the limited fact nding opportunities in the correspondence with the Governments, the mandate holders have welcomed the suggestion from the Commission on Human Rights to undertake in situ visits and they have developed this
approach especially since the mid-1990s. Terms of reference for fact-nding missions by special rapporteurs/representatives of the Commission on Human Rights
were adopted during their annual meeting in 1997, thus dening minimum standards for the mandate holders and UN sta accompanying them.15 They insist
that Governments guarantee these minimum standards for in situ visits which has
repeatedly led to a denial of the required invitation from the Governments. A
simplication of this invitation procedure consists in issuing a so-called standing
invitation to all thematic special procedures.16 From 1987 to May 2006 the mandate holders dAlmeida Ribeiro, Amor and Jahangir have undertaken a total of 22
in situ visits. Furthermore, Special Rapporteur Jahangir in 2006 compiled a joint
15
Terms of reference for fact-nding missions by special rapporteurs/representatives of the Commission on
Human Rights (UN Doc. E/CN.4/1998/45, Appendix V).
16
A list of the 56 countries which have extended a standing invitation to thematic procedures as of
July 2006 is available at <www.ohchr.org/english/bodies/chr/special/invitations.htm>, 30 October 2006.

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report with four other special procedures holders on the situation in Guantnamo
Bay even though they had not visited the detention facilities.17 Consequently,
mandate holders may apply additional pressure on Governments which either do
not issue an invitation at all or which do not accept the terms of reference for
fact-nding missions by Special Rapporteurs.
C. Thematic Studies
The mandate holders Amor and Jahangir have drafted ve thematic studies, thus
complementing the traditional reports to the Commission on Human Rights
and to the General Assembly with normative activities of the mandate. Two
of these thematic studies were destined for the preparatory committee of the
2001 World Conference Against Racism, Racial Discrimination, Xenophobia
and Related Intolerance in Durban.18 A further study dealt with Freedom of
Religion or Belief and the Status of Women from the Viewpoint of Religion and
Traditions.19 However, despite an explicit request in the 2004 resolution of the
Commission on Human Rights, this study has so far not been translated from
the French original version into the other ve ocial UN languages. Special rapporteur Amor also initiated the 2001 International Consultative Conference on
School Education in Relation with Freedom of Religion and Belief, Tolerance
and Non-Discrimination in Madrid which adopted a Final Document by consensus. Although the Madrid Final Document is not legally binding per se, its
potential can be seen in the involvement of non-governmental organizations
and religious communities during the deliberations. Finally, Special Rapporteur
Jahangir submitted a study on Incitement to racial and religious hatred and the
promotion of tolerance upon the request of the Human Rights Council for its
second session in September 2006.20

17
Situation of detainees at Guantnamo Bay, Report of the Chairperson-Rapporteur of the Working Group
on Arbitrary Detention, Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers,
Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir; and the
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health, Paul Hunt (UN Doc. E/CN.4/2006/120).
18
Racial discrimination and religious discrimination: identication and measures, Study prepared by
Mr. Abdelfattah Amor, Special Rapporteur on religious intolerance (UN Doc. A/CONF.189/PC.1/7, Annex);
Racial discrimination, religious intolerance and education, Study prepared by Mr. Abdelfattah Amor, Special
Rapporteur on religious intolerance (UN Doc. A/CONF.189/PC.2/22, Annex).
19
Rapport soumis par M. Abdelfattah Amor, Rapporteur spcial, conformment la rsolution 2001/42 de
la Commission des droits de lhomme, Additif: tude sur la libert de religion ou de conviction et la condition
de la femme au regard de la religion et des traditions (UN Doc. E/CN.4/2002/73/Add.2).
20
Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou
Dine, further to Human Rights Council decision 1/107 on incitement to racial and religious hatred and the
promotion of tolerance (UN Doc. A/HRC/2/3).

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11

III. Substantive Issues

A. Legal Norms Governing the Mandate
The mandate practice has changed signicantly throughout the past twenty years
in terms of the substantive legal norms taken as a basis by the Special Rapporteurs. The 1986 resolution of the Commission on Human Rights did not refer
unlike its rst draftto article 18 of the Universal Declaration of Human Rights
(UDHR21) or to article 18 of the International Covenant on Civil and Political
Rights (ICCPR22). Consequently, the rst mandate holder dAlmeida Ribeiro
took the provisions of the 1981 Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief (1981 Declaration23) as his single point of reference. Step by step, the second mandate holder
Amor carefully incorporated further legal normsespecially the pertinent article 18
UDHR, articles 4, 18 and 20 ICCPR and article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESC24)into the mandate.
The current Special Rapporteur Jahangir has enlarged this legal basis even further
in referring to General Comments of the UN Human Rights Committee and to
a number of Declarations and Guidelines. The initial mandate practice of quoting provisions of the 1981 Declaration has continually declined and only recently
the rights enumerated in article 6 of the 1981 Declaration have been resuscitated
in Ms. Jahangirs 2006 framework for communications.
This development has been implicitly approved by the Commission on Human
Rights and the General Assembly and since the mid-1990s they have gradually
referred the mandate to article 18 UDHR and article 18 ICCPR. Meanwhile
they also quote the 1993 Vienna Declaration and Programme of Action,25 the
Millennium Declaration26 and the Durban Declaration27 in their resolutions. The
fact that the provisions of the 1981 Declaration are no longer the only benchmark for the mandate is signicant because the 1981 Declaration contains a

21
Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution
217 A (III) of 10 December 1948.
22
International Covenant on Civil and Political Rights, adopted and opened for signature, ratication
and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966.
23
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by General Assembly resolution 36/55 of 25 November 1981.
24
International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratication and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966.
25
Vienna Declaration and Programme of Action, adopted by the World Conference on Human
Rights in Vienna on 25 June 1993 (UN Doc. A/CONF.157/23).
26
United Nations Millenium Declaration, adopted by General Assembly resolution 55/2 of 8 September 2000.
27
Durban Declaration, adopted by the World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance in Durban on 8 September 2001 (UN Doc. A/CONF.189/12).

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specic prohibition of discrimination whereas UDHR and ICCPR encompass

the broader concept of freedom of religion or belief. The decision to rename the
title of the mandate in 2000 into Special Rapporteur on freedom of religion or
belief thus mirrors the evolution of the mandate, i.e. from the management of intolerance to the role of an educator with a dialogue-oriented preventive approach.
B. Customary International Law or Subsidiary Means for the
Determination of Rules of Law?
As the practice of the mandate holders is increasingly characterized by legal
convictions it is appropriate to examine the hypothesis that these substantive
statements might be capable of contributing to the development of customary
international law in shaping the contents of human rights. The forming of customary international law requires a general practice (consuetudo) which is accepted
as law (opinio iuris sive necessitatis). Concerning the determination of consuetudo
and opinio iuris not only states but also other subjects of international law may be
taken into consideration; however, international organizations can only participate in forming customary law within the limits of the exercise of the functions
entrusted to them. Contrary to Beate Rudolf s view in her doctoral thesis28 a
direct contribution of Special Rapporteurs to the development of customary
international law is to be rejected. The rm positions taken by Governments from
dierent world regions give evidence that they explicitly do not share the conviction to be legally bound by the Special Rapporteurs statements or by the Commission on Human Rights resolutions. In addition, the approaches of the
mandate holders dAlmeida Ribeiro, Amor and Jahangir as manifested in the
practice from 1986 to 2006 also speak against their direct contribution to customary international law. Since they act as subsidiary organs of the Commission
on Human Rightsrespectively now of the Human Rights Councilit is out of
question that their acts were attributable to the state practice of their home countries or potentially relevant as the practice of private individuals. Furthermore,
the attempt to involve the reports as practice of international organizations into
forming customary international human rights is also awed. As Governments
are potentially bound by these international customary rules, the state practice
continues to play a decisive role. Since the required opinio iuris is an opinion
what the law isand not only what the law ought to be29it seems important
28
See Beate Rudolf, Die thematischen Berichterstatter und Arbeitsgruppen der UN-Menschenrechtskommission (Springer, Berlin, Heidelberg, New York, Barcelona, Hong Kong, London, Mailand, Paris, Singapur, Tokio, 2000), pp. 48-54 and 555-556. See also her article on The Thematic Rapporteurs and
Working Groups of the United Nations Commission on Human Rights (2000) 4 Max Planck Yearbook of United Nations Law pp. 297299, <www.mpil.de/shared/data/pdf/pdfmpunyb/rudolf_4.pdf>,
30 October 2006.
29
See J. S. Watson, Legal Theory, Ecacy and Validity in the Development of Human Rights Norms
in International Law (1979) 3 University of Illinois Law Forum, p. 609.

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13

to link the creation of custom to the addressee of the reports, i.e. the Governments.
It would not be appropriate to regard a Special Rapporteurs legal statement as a
concretization of customary international human rights in case the uniform state
practice unambiguously conicted with this opinion. During the 25 years of the
existence of special procedures, the Commission on Human Rights has only on
one occasion formally censored a report30 and there are no ecient control mechanisms with regard to Special Rapporteurs statements. Furthermore, it seems
unrealistic to impose a duty on all member states and observer states of the Commission/Council to permanently check and object to the reports if the Governments want to prevent the Special Rapporteurs statements from entering the
arena of customary international law. Given these dogmatic and practical concerns
it is argued that the reports do not contribute directly to the development or concretization of human rights under customary international law.
On the other hand, the mandate holders reports may be taken as subsidiary
means for the determination of rules of law. The published reports can neither
be subsumed under judicial decisions nor under teachings of the most highly
qualied publicists of the various nations according to article 38 section 1 (d) of
the Statute of the ICJ but they are typically characterized by elements of both of
these alternatives. In the determination of rules of law the ICJ refers in advisory
opinions31 and in legal disputes32 to reports of special procedures; likewise several
Governments in the course of the written33 and oral34 ICJ proceedings. Reports

30
A quote in para. 27 of the annual report 1997 of Maurice Gll-Ahanhanzo, Special Rapporteur on
contemporary forms of racism, racial discrimination, xenophobia and related intolerance from 1993 to
2002 (UN Doc. E/CN.4/1997/71) was formally censored by Commission on Human Rights decision
1997/125 of 18 April 1997.
31
Legal consequences of the construction of a wall in the Occupied Palestinian Territory, 9 July 2004,
International Court of Justice, Advisory Opinion, paras. 57 and 133 (<www.icj-cij.org/docket/les/131/
1671.pdf>) as well as the Separate Opinions of Judge Rosalyn Higgins (paras. 23 and 40, <www.icj-cij.
org/docket/les/131/1681.pdf>) and of Judge Nabil Elaraby (para. 3.3, <www.icj-cij.org/docket/les/
131/1689.pdf>).
32
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, International Court of Justice, paras. 60, 70, 150, 182, 206 and 209, <www.icj-cij.org/docket/
les/116/10455.pdf>; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), International Court of Justice, Order of 10 July 2002, Separate Opinion
of Judge Jean-Pierre Mavungu, footnote 2, <www.icj-cij.org/docket/les/126/8170.pdf>.
33
Land and maritime boundary between Cameroon and Nigeria, Rejoinder of the Federal Republic of
Nigeria, January 2001, para. 18.12, <www.icj-cij.org/docket/les/94/8606.pdf>.
34
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counsel
of the Democratic Republic of the Congo Tshibangu Kalala, Verbatim Record of 25 April 2005, para. 21
as well as footnotes 9 and 32, <www.icj-cij.org/docket/les/116/4329.pdf>. See, however, the dierent
approach in Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Counsel of Serbia and Montenegro Xavier de Roux,
Verbatim Record of 14 March 2006, paras. 16, 61 and 120, <www.icj-cij.org/docket/les/91/10582.
pdf>.

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M. Wiener / Religion and Human Rights 2 (2007) 317

of mandate holders appear to be particularly suitable as subsidiary means for the

determination of rules of law because through the reproduction of the correspondence with the Governments they document the opinio iuris of the latter
and at the same time the Special Rapporteurs may evaluate the state practice by
undertaking in situ visits and by processing information from non-governmental
organizations.
C. The Special Rapporteurs Framework for Communications
Finally, the substantive legal statements of the three mandate holders as Special
Rapporteur on freedom of religion or belief from 1986 to 2006 are presented
according to the categories of Ms. Jahangirs framework for communications (see
UN Doc. E/CN.4/2006/5, Annex and the layout below) in order to make transparent their potential as subsidiary means for the determination of rules of law.

Freedom of religion or belief

Framework for
communications
(E/CN.4/2006/5, Annex)

Freedom to adopt, change or renounce a religion or belief

Freedom from coercion
Freedom to worship
Places of worship
Religious symbols
Observance of holidays and days of rest
Appointing clergy
Teaching and disseminating materials
The right to manifest
(including missionary activity)
one's religion or belief
The right of parents to ensure the religious
and moral education of their children
Registration
Communicate with individuals and communities on
religious matters at the national and international level
Establish and maintain charitable and humanitarian
institutions/solicit and receive funding
Conscientious objection

Discrimination

Vulnerable groups

Discrimination on the basis of religion or belief/

inter-religious discrimination/tolerance
State religion

Women
Persons deprived of their liberty
Refugees
Children
Minorities
Migrant workers

Intersection of freedom of religion

or belief with other human rights

Cross-cutting issues

Freedom of expression including questions related to

religious conf licts, religious intolerance and extremism
Right to life, right to liberty
Prohibition on torture and other cruel, inhuman or
degrading treatment or punishment

Derogation
Limitation
Legislative issues
Defenders of freedom of religion or belief and non-governmental organizations

Concerning the notions of religion and belief the mandate holders did not
formulate a nal denition but they tended to interpret the scope of application
of the freedom of religion or belief in line with the principle in dubio pro libertate.
The forum internum comprises the freedom to adopt, to change and to replace
ones religion or belief, i.e. the Special Rapporteurs explicitly recognize a right to

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15

conversion. The liberty of parents or legal guardians to ensure that their children
receive a religious or moral education in conformity with their own convictions
must be respected but the right to change ones religion devolves upon the children at the point at which they are capable to take such a decision themselves.
The freedom from coercion bars both physical coercion and certain forms of
state-sponsored incentives or pressure; however, non-state missionary activities
such as unethical conversions should not be criminalized in abstract terms.35
With regard to the freedom to worship, the mandate holders discussed, inter
alia, the religious use of the narcotic drug peyote during a traditional ceremony
of the Native American Church and they warned of potential adverse consequences when religious rites were prohibited. Restrictions imposed by the state
on places of worship and attacks by non-state actors do not only violate the right
of a single individual but also the rights of the community attached to the place
in question. Special rapporteur Jahangir developed a set of general indicators in
order to evaluate whether national laws regulating the wearing of religious symbols are in conformity with the applicable international human rights standards.36
National provisions on religious holidays and days of rest may lead to problems
in multi-religious societies which could be solved by applying exemptions for
religious minorities. The state should not restrict the right to appoint appropriate
religious leaders and clergy beyond the permissible limitations. The right to freedom of thought, conscience, religion or belief includes the freedom to teach and
disseminate relevant publications as well as missionary activities, particularly as
proselytism is itself inherent in religion. Although the Madrid Final Document of
the international consultative conference on School Education in Relation with
Freedom of Religion and Belief, Tolerance and Non-Discrimination can only be
regarded so far as soft law, the Special Rapporteur used it as a yardstick for desirable non-discriminatory contents of school textbooks.37 Concerning the procedure for registration of religious communities, Special Rapporteur Jahangir
referred to the 2004 guidelines prepared by the Organization for Security and
Cooperation in Europe in consultation with the Council of Europes Venice
Commission.38 The contentious issue whether the freedom of religion or belief
also comprises the right to entry for foreign missionaries has so far been dealt with
only supercially. The Special Rapporteurs have criticized various national restrictions on charitable institutions and their funding through contributions but they
35
Elimination of all forms of religious intolerance, Report of the Special Rapporteur of the Commission on
Human Rights on freedom of religion or belief, Asma Jahangir (UN Doc. A/60/399), paras. 4068.
36
Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir (UN Doc. E/CN.4/
2006/5), paras. 5160.
37
Elimination of all forms of religious intolerance, Interim report prepared by Abdelfattah Amor, Special
Rapporteur of the Commission on Human Rights on freedom of religion or belief (UN Doc. A/58/296), paras.
5152.
38
Report submitted by Asma Jahangir, Special Rapporteur on freedom of religion or belief (UN Doc.
E/CN.4/2005/61), paras. 5758.

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also pointed to possible implications of a nancial dependency on foreign sources

and to pertinent codes of conduct for humanitarian NGOs. Although neither
article 18 UDHR nor article 18 ICCPR explicitly refer to conscientious objection, the mandate holders assume that it represents a (fundamental) right as part
of the freedom of religion or belief and they request the states provision of procedural and substantive guarantees.39
In addition, the mandate practice has dealt with a number of discriminatory
acts both from the states and from non-state actors, thus arming an obligation
for states to protect against private discrimination and working on the assumption that there are indirect horizontal eects. The fact that a religion is recognized
as a State religion or that it is established as ocial or traditional is not per se
contrary to international human rights but it shall not result in any impairment
of the rights of religious minorities.
Special rapporteur Amor thoroughly examined the issue of vulnerability of
women in his 2002 thematic study on Freedom of Religion or Belief and the
Status of Women from the Viewpoint of Religion and Traditions. Concerning
persons deprived of their liberty the mandate holders Amor and Jahangir called
for the compliance with the 1955 Standard Minimum Rules for the Treatment
of Prisoners.40 Refugees and migrant workers may also nd themselves in a situation of specic vulnerability with regard to their freedom of religion or belief.
The Special Rapporteurs repeatedly referred to the primary consideration of the
best interests of the child as well as to their freedom of religion or belief. Religious minorities should not only be granted privileges by the states but they
rather dispose of inherent rights which have to be ensured and protected by the
Governments.
There may be intersections of freedom of religion or belief with other human
rights, i.e. when dierent human rights are simultaneously violated by an act or
when there is a potential conict between freedom of religion or belief and
another human right. In the context of the controversy subsequent to the publications of caricatures of the prophet Mohammed, the Special Rapporteur Jahangir emphasized the importance both of the freedom of expression and of the
freedom of religion or belief that should be equally respected and protected.
The mandate holder dAlmeida Ribeiro dealt with the fatwa against the author

39
Report submitted by Mr. Angelo Vidal dAlmeida Ribeiro, Special Rapporteur appointed in accordance
with Commission on Human Rights resolution 1986/20 of 10 March 1986 (UN Doc. E/CN.4/1992/52),
paras. 132139 and 185; Interim report on the elimination of all forms of religious intolerance, prepared by
Mr. Abdelfattah Amor, Special Rapporteur of the Commission on Human Rights, in accordance with General
Assembly resolution 50/183 of 22 December 1995 (UN Doc. A/51/542), paras. 5354; Summary of cases
transmitted to Governments and replies received [by Ms. Asma Jahangir] (UN Doc. E/CN.4/2006/5/Add.1),
paras. 1011, 2526, 138, 305 and 364.
40
Elimination of all forms of religious intolerance, Report of the Special Rapporteur of the Commission on
Human Rights on freedom of religion or belief, Asma Jahangir (UN Doc. A/60/399), paras. 6991.

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17

Salman Rushdie in terms of the latters right to life and the Special Rapporteur
referred to the requirements concerning the imposition of the death penalty
under article 6 ICCPR.41 In Ms. Jahangirs opinion, the punishments of amputation or stoning contained in certain sharia penal codes constitute treatment that
is contrary to universally recognized norms prohibiting torture and other degrading, cruel and inhuman treatment or punishment.42
The provision in article 4 section 2 ICCPR, according to which no derogation
from article 18 ICCPR may be made even in time of public emergency, was taken
by the mandate holders Amor and Jahangir as evidence of the fundamental
importance of the freedom of religion or belief. Furthermore, they voiced their
concerns against vague legal provisions which were liable to permit interference
by the authorities, granting them excessive discretionary powers. Even when distinctions are provided for in the national constitution, international human rights
such as the prohibition of discrimination according to article 26 ICCPR take
precedence. Finally, the Special Rapporteurs dAlmeida Ribeiro, Amor and Jahangir emphasized the important role that non-governmental organizations play
within the framework of the mandate practice, particularly as sources of information and due to their support during in situ visits.43

41
Report submitted by Mr. Angelo Vidal dAlmeida Ribeiro, Special Rapporteur appointed in accordance
with Commission on Human Rights resolution 1986/20 of 10 March 1986 (UN Doc. E/CN.4/1993/62),
para. 79.
42
Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, Mission to Nigeria (UN
Doc. E/CN.4/2006/5/Add.2), paras. 6768 and 100.
43
Report submitted by Mr. Angelo Vidal dAlmeida Ribeiro, Special Rapporteur appointed in accordance
with Commission on Human Rights resolution 1986/20 of 10 March 1986 (UN Doc. E/CN.4/1993/62),
para. 73; Interim report of the Special Rapporteur of the Commission on Human Rights on the elimination of
all forms of intolerance and of discrimination based on religion or belief [Mr. Abdelfattah Amor] (UN Doc.
A/56/253), paras. 151156; Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir,
Mission to Nigeria (UN Doc. E/CN.4/2006/5/Add.2), para. 7.

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