Religion

Human
Rights

Religion and Human Rights 3 (2008) 113

www.brill.nl/rhrs

The Legal Obligations of State and Non-State Actors

in Respect of the Protection of Freedom of Thought,
Conscience and Religion or Belief
Dennis de Jong*
Advisor on Human Rights and Peacebuilding in the Netherlands Ministry of Foreign Aairs

Abstract
In this article, the author examines the consequences of the recent recognition of the idea that not only
States but also non-State actors can violate human rights. While this development can help in dening
the positive obligations of States concerning the protection of freedom of religion or belief, it can also
undermine its protection. In particular, the author warns against implications for State interference
with what used to be the internal aairs of religious communities. Whereas positive State obligations
concerning the acts of non-State actors can be relatively easily established in the case of clear criminal offences, it is much more dicult to establish these in the case of conicts between various human rights.
The author therefore concludes that a new comment by the Human Rights Committee is called for to
clarify the implications of these new legal developments.
Keywords
Freedom of religion or belief; Non-State actors; Positive State obligations

I. Introduction
Traditionally, international human rights law has been codied with a view of
protecting citizens against arbitrary acts by the State. Individuals thus became the
holders of rights and the State and those acting on behalf of the State the bearers
of duties. More recently, this picture has become more complicated. It has been
generally recognised that the State has a positive obligation to ensure the enjoyment
of human rights not only in respect of unlawful interferences by its own representatives, but also against certain interferences by non-State actors. Moreover,

* Dr. Dennis de Jong currently serves as Advisor on Human Rights and Peacebuilding in the Netherlands Ministry of Foreign Aairs and in this capacity deals, inter alia, with the protection of freedom of
religion or belief and the promotion of intercultural and inter-religious dialogue. He obtained his doctorate in international law in 2000 at the University of Maastricht. His thesis has been published as The
Freedom of Thought, Conscience and Religion or Belief in the United Nations (19461992) (Intersentia and
Hart, 2000). He is member of the OSCE Advisory Panel on Freedom of Religion or Belief and of the
Board of the academic think tank Focus on Freedom of Religion or Belief (FoFoRB). This is the lightly
revised text of the paper he presented on 10 December 2007 at a seminar organised by FoFoRB.
Koninklijke Brill NV, Leiden, 2008

DOI: 10.1163/187103108X286537

D. de Jong / Religion and Human Rights 3 (2008) 113

there is a denite trend towards the acceptance of the notion of human rights
violations committed by non-State actors, inter alia, in the elds of combating
tracking in human beings, womens rights and business and human rights.
In this article, the author examines how these developments aect the protection of the freedom of thought, conscience and religion or belief.1 He concludes
that they oer opportunities for the promotion of tolerance in matters relating to
religion or belief and for the protection of especially minority religious belief
communities. Nevertheless, the notion of obligations for non-State actors can
lend itself to abuse and to reducing the scope of the freedom of religion or belief,
if not applied scrupulously.

II. The Positive Obligations of State and Non-State Actors

A. The Positive Obligations of States
Both the UN Human Rights Committee and the European Court of Human
Rights have explicitly recognised the notion of positive State obligations.
The Human Rights Committee included a number of such observations in its
General Comment No. 31 on The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant.2 It bases itself primarily on article 2,
paragraph 1 of the ICCPR which reads as follows:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

On this basis, the Committee states that the positive obligations on States Parties
to ensure Covenant rights will only be fully discharged if individuals are protected
by the State, not just against violations of Covenant rights by its agents, but also
against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between
private persons or entities. There may be circumstances in which a failure to
ensure Covenant rights as required by article 2 would give rise to violations by
States Parties of those rights, as a result of States Parties permitting or failing to
take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States

1
During the remainder of the article, for practical purposes the term freedom of religion or belief is
used instead of the ocial reference to freedom of thought, conscience and religion (or belief ) as included
in art. 18 of the ICCPR.
2
UN Doc. CCPR/C/21/Rev.1/Add.13. See, in particular, paragraphs 6, 8 and 10.

D. de Jong / Religion and Human Rights 3 (2008) 113

are reminded of the interrelationship between the positive obligations imposed

under article 2 and the need to provide eective remedies in the event of breach
under article 2, paragraph 3. The Committee continues that a State Party must
respect and ensure the rights laid down in the Covenant to anyone within the
power of eective control of that State Party, even if not situated within the territory of the State Party.
The key notion in the Committees comments is the duty to exercise due diligence to prevent, punish, investigate or redress the harm caused by private persons or entities. The legal concept of due diligence describes the minimum eort
a state must undertake in order to fulll its responsibility to protect individuals
from abuses of their rights.3 It does not, however, provide individuals or communities with an absolute guarantee that their rights will never be violated by nonState actors, since although the State has to take preventive measures, there is no
obligation for States to provide fool-proof preventive measures. It is even questionable if such fool-proof measures could ever be possible in a democratic society. However, if non-State actors do violate the rights of others, the government
will certainly have to investigate and punish the oenders and provide an eective
right to remedy to the victims.
In the case of 97 members of the Gldani Congregation of Jehovahs Witnesses and 4
Others v. Georgia4 the European Court of Human Rights examined a case of religious believers who had been attacked and humiliated during one of their religious
meetings by non-State actors. Although primarily concerned with article 3 (torture
and inhuman or degrading treatment), the Court had previously elaborated the
notion of positive State obligations. However, in this judgement such positive obligations were explicitly recognised with respect to freedom of religion or belief, as
included in article 9 of the European Convention on Human Rights.
The main considerations of the Court are the following:
The Court wishes to emphasise that, in the name of freedom of religion, it is not authorised to apply
improper pressure on others from a wish to promote ones religious convictions. However, the role

3
In his report to the Commission on Human Rights (later: Human Rights Council), of 20 January
2006 (E/CN.4/2006/61), the UN Special Rapporteur on Violence against Women, its Causes and Consequences, prof. Yakin Ertrk included an extensive analysis of the concept of due diligence. In her
address to the HRC, in September 2006, Ertrk states that It is now a rmly established principle of
international law that states have a duty to take positive action to prevent and protect women from violence, to punish perpetrators and to assure compensation for victims. Failure to fulll this duty constitutes a breach of international law. Although Ertrk certainly emphasises the importance of preventive
policies, the Special Rapporteur does not automatically condemn States, where violence against women
occurs, but rather focuses on the scope and seriousness of the measures taken by the State. If a State has
done everything that one could reasonably expect from it, it has met the criterion of due diligence, even
if violence against women has not been completely eliminated.
4
Application no. 71156/01, Judgement of 3 May 2007. <http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=62134&session
Id=4595366&skin=hudoc-en&attachment=true>.

D. de Jong / Religion and Human Rights 3 (2008) 113

of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. This State role is conducive to
public order, religious harmony and tolerance in a democratic society and can hardly be conceived
as being likely to diminish the role of a faith or a Church with which the population of a specic
country has historically and culturally been associated.
In the instant case, on account of their religious beliefs, which were considered unacceptable, the
96 applicants were attacked, humiliated and severely beaten during their congregations meeting on
17 October 1999. Their religious literature was conscated and burnt, and the applicants themselves
were forced to look at the re. One of the applicants, Mr A. Khitarishvili, had his head shaved to the
sound of prayers, by way of religious punishment. Having been treated in this way, the applicants
were subsequently confronted with total indierence and a failure to act on the part of the authorities, who, on account of the applicants adherence to a religious community perceived as a threat to
Christian orthodoxy, took no action in respect of their complaints. Deprived of any remedy, the
applicants could not enforce their rights to freedom of religion before the domestic courts. As the
attack against the applicants on 17 October 1999 constituted the rst act of large-scale aggression
against the Jehovahs Witnesses, the authorities negligence opened the doors to a generalisation of
religious violence throughout Georgia by the same group of attackers. The applicants were thus led
to fear that they would be subjected to renewed violence on each fresh manifestation of their faith.
Having regard to those circumstances, the Court considers that, through their inactivity, the
relevant authorities failed in their duty to take the necessary measures to ensure that the group of
Orthodox extremists led by Father Basil tolerated the existence of the applicants religious community and enabled them to exercise freely their rights to freedom of religion.
There has accordingly been a violation of Article 9 of the Convention in respect of all 96
applicants.

The positive obligation of States to ensure the enjoyment of the freedom of religion or belief has therefore been clearly recognised by the Court. It follows a
similar pattern to the UN Human Rights Committee: States have the duty to
ensure that the competing groups tolerate each other, they should investigate and
punish oenders and provide the victims with eective remedies. In a way, especially the obligation with regard to preventive measures has been formulated even
more strongly by referring to the duty to ensure instead of referring to the term
due diligence: this seems to apply that the Court does not only consider the
extent to which the State has made an eort to prevent violations of the freedom
of religion or belief but also looks at the nal results and requires from the State
to ensure that such violations do not occur within their territory. In practice,
however, I doubt it if the Courts statement in this case is to be interpreted literally. In another case, i.e. the case of Z and Others v the United Kingdom,5 relating
to the level of protection to which individual children are entitled against torture
and ill-treatment (in accordance with article 3 ECHR), the Court states that the
States measures should provide reasonable steps to prevent ill-treatment of which
the authorities had or ought to have had knowledge. This already qualies the

Application no. 29392/95, Judgement of 10 May 2001. <http://cmiskp.echr.coe.int////tkp197/

viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=2036&sessio
nId=4595377&skin=hudoc-en&attachment=true>

D. de Jong / Religion and Human Rights 3 (2008) 113

States obligation. In the case of E and Others v the United Kingdom6 the Court
explains that:
the test does not require it to be shown that but for the failing or mission of the public authority
ill-treatment would not have happened. A failure to take reasonably available measures which could
have had a real prospect of altering the outcome or mitigating the harm is sucient to engage the
responsibility of the state.

Based on these judgements a State is therefore bound to take reasonably available

preventive measures to prevent interferences of which the authorities had or
ought to have had knowledge. A State does not have to take preventive measures
against theobjectivelyunknown and preventive measures will not necessarily have to prove fully eective.
B. The Obligations of Non-State Actors
Whereas the recognition of positive obligations of States in ensuring the enjoyment of human rights against interferences by non-State actors has been a gradual
development originating in article 2 of the ICCPR itself, the idea that non-State
actors can also violate human rights is much more recent. During the Cold War
communist States had used the concept of duties of non-State actors in the context of human rights as a strategy for reducing the impact of human rights themselves. Thus, in the main UN human rights instruments, duties are very carefully
and narrowly dened. Reference can be made to article 29, paragraph 1 and article 30 of the Universal Declaration of Human Rights. Article 29, paragraph 1
stipulates that everyone has duties to the community in which alone the free and
full development of his personality is possible. This is a very vague formula that
does not lead to enforceable obligations. Article 30 states that nothing in this
Declaration may be interpreted as implying for any State, group or person any
right to engage in any activity or to perform any act aimed at the destruction of
any of the rights and freedoms set forth herein. This formula recognises the possibility of interference by non-State actors, but strictly speaking only relates to the
interpretation of the Declaration itself, i.e. to the scope of the human rights and
fundamental freedoms dened therein. It does not go as far as to state that human
rights can also be violated by non-State actors.
More recently, however, the role of non-State actors has become more distinctly recognised. One example of this is in the realm of the activities of business
enterprises. The Commission on Human Rights and later the Human Rights

Application no. 33218/96, Judgement of 26 November 2002. <http://cmiskp.echr.coe.int////

tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=3361
&sessionId=4595390&skin=hudoc-en&attachment=true>.

D. de Jong / Religion and Human Rights 3 (2008) 113

Council did not adopt the norms drafted by the Sub-Commission7 where it is
stated in paragraph 1 that:
Within their respective spheres of activity and inuence, transnational corporations and other business enterprises have the obligation to promote, secure the fullment of, respect, ensure respect of
and protect human rights recognized in international as well as national law, including the rights
and interests of indigenous peoples and other vulnerable groups.

However, by appointing a Special Representative on this issue, the UN did recognise that the role of business enterprises vis--vis the protection of human rights
deserved closer attention.
These developments have been more straightforward in the instruments relating to the ght against tracking in human beings. The annual resolutions
adopted by the General Assembly on this subject contain a preambular paragraph
which explicitly states that sexual violence and tracking in women and girls for
purposes of economic exploitation, sexual exploitation through prostitution and
other forms of sexual exploitation and contemporary forms of slavery are serious
violations of human rights.8 The paragraph does not limit its scope to actions by
or on behalf of States. This does not come as a surprise: as most activities are carried out by criminal individuals and gangs not directly linked to the State, such a
restriction would have deprived the paragraph of its intent.
Resolutions are soft law and in themselves they do not provide a rm basis for
concluding new trends in international law. However, the Council of Europe
Convention on Action against Tracking in Human Beings9 contains a similar
preambular paragraph stating that tracking in human beings constitutes a violation of human rights and an oence to the dignity and the integrity of the
human being. The Explanatory Note shows that the authors of the Convention
did not include this paragraph lightly, but were well aware of a consistent trend
in other instruments. Paragraph 42 of the Explanatory Note states that:
The recognition of tracking in human beings as a violation of human rights appears directly or
indirectly in an important number of international legal instruments and international declarations.
Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection
of women against violence, which denes violence against women as including tracking and states
that violence against women both violates and impairs or nullies the enjoyment of their human
rights and fundamental freedoms. The Inter-American Convention on the Prevention, Punishment
and Eradication of Violence against Women arms, in the Preamble, that violence against women
constitutes a violation of their human rights and fundamental freedoms. The denition of violence
against women in Article 2 of this Convention includes tracking as a form of violence against

7
Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with
Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2.
8
See, for example, GA Res. 55/67 of 31 January 2001.
9
CETS No. 197, 16 May 2005.

D. de Jong / Religion and Human Rights 3 (2008) 113

women. The European Union, in its Council Framework Decision on Combating Tracking in
Human Beings of 19 July 2002 states that tracking in human beings comprises serious violations
of fundamental human rights and human dignity . . .(at para 3). Treaty monitoring bodies of the
United Nations, including the Human Rights Committee and the Committee on the Elimination
of Discrimination against Women, have also identied tracking in human beings as a violation of
human rights.

This new legal development has yet received little attention, but has implications
for the interpretation of all human rights and fundamental freedoms. If it is true
that trackers violate human rights, there is no reason why, for example, people
using other forms of violence against believers are not also violating human
rights.

III. Positive State Obligations in Respect of the Freedom of Religion

or Belief
On the basis of the analysis in paragraph IA, States have to exercise due diligence
to prevent, punish, investigate or redress the harm caused by acts by private persons or entities. I shall now successively look at the meaning of this in the context of the freedom of religion or belief especially in respect of the promotion of
tolerance.
A. Preventive Measures
The promotion of tolerance in matters relating to religion or belief has traditionally been a priority in UN-instruments relating to the freedom of religion or
belief. It gures prominently in article 4 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief 10 which states that all States shall make all eorts . . . to take all appropriate
measures to combat intolerance on the grounds of religion or other beliefs in this
matter. In view of the wider acceptance of positive State obligations, it is only
logical to interpret this provision in a more binding manner. It would then read
that all States have the obligation to exercise due diligence to prevent intolerance
on the grounds of religion or other beliefs.
Whereas there is much international debate on the type of measures that can
be expected from the State in this respect, it is often forgotten that the rst step
to be taken is the full and uncompromising recognition of the freedom of religion
or belief itself. In order to prevent private persons from interfering with the
freedom of religion or belief of others, States have to emphasise the value of
this human right. This implies that governments who question the relevance of
this human right for their societies, are already violating their international
10

Proclaimed by GA Res. 36/55 of 25 November 1981.

D. de Jong / Religion and Human Rights 3 (2008) 113

obligations. In this respect I do not only refer to States with a predominant religion, who may argue that in their country there is no need for freedom of religion
or belief since everyone is belonging to the same religion anyway. I also refer to
the fashionable debate especially in Europe where some authors hold the view
that freedom of religion or belief has become irrelevant since all of its aspects have
been covered by other human rights already.11
In practical terms, the State needs to take a range of preventive measures. Its
obligations are strongest in areas where the State has discretionary power. For
example, in its own ocial publications the government always needs to be aware
of this obligation. The same holds for the development of school curricula, whenever the government regards this as part of its educational policies.
In other areas, it may be more dicult for the government to develop eective
preventive policies. A particularly sensitive issue is the balancing act that is
required between the duty to ensure the freedom of religion or belief and the
freedom of expression. Article 2 of the 1981 UN Declaration requires States to
combat intolerance in general, and does not exclude the media. However, freedom of expression can only be limited on the basis of the carefully dened limitation grounds of article 19 ICCPR. In practice, this conict between two human
rights can best be solved by making it clear in public statements that the government is not in favour of intolerant statements, without going as far as to prohibit
any such statements. This can (also) be based on article 19, paragraph 3, which
states that the exercise of the right to freedom of expression brings with it special
duties and responsibilities.
B. Punitive Measures
Article 2, paragraph 2 ICCPR stipulates that States must adopt such legislative
or other measures as may be necessary to give eect to the rights recognized in the
present Covenant. States should therefore adopt legislative or other measures
protecting the right of freedom of religion or belief for everyone. This goes beyond
the mere inclusion of this freedom in the Constitution. Governments should also
consider what it takes to manifest ones freedom of religion or belief. They will
need to adopt laws or regulations on the building and maintenance of places of
worship, on religious education, e.t.c.
States should also adopt and implement laws and regulations protecting believers manifesting their freedom of religion or belief against interference by others.
11

See, for example, the article (in Dutch only) by Paul de Beer in NRC, 27 October 2007: Staat en
Religie: Godsdienstvrijheid uit de Grondwet. In my thesis (supra, note *) I have tried to demonstrate that
although there are certainly important linkages between the freedom of religion or belief and other
human rights, there are many arguments pointing out that there is additional value in recognising this
freedom. It is rather the opposite: if the freedom of religion or belief is protected, this will to a large extent
ensure the protection of other human rights as well.

D. de Jong / Religion and Human Rights 3 (2008) 113

Special provisions on desecration of holy sites and buildings come under this
category. Of course, also more general provisions on crimes such as murder, manslaughter, burglary and discrimination are of relevance, insofar as the crimes have
been committed against persons because of their religion or belief.
States who do not protect believers against such interferences, are at risk of
violating the freedom of religion or belief. This holds for the legislative requirements but also for the necessary implementation measures. States will need to
make sure that law enforcement agencies give enough priority to such oences.
So far, the examples given have been straightforward, but sometimes governments face dicult dilemmas. One such area is the question of whether the protection of freedom of religion or belief also requires blasphemy laws. In the
Netherlands, for example, blasphemy has been made punishable by law, although
this provision is not used. In Pakistan, blasphemy laws especially target one religious minoritythe Ahmadis. In order to get this right from an international
human rights perspective, rstly we have to conclude that human rights law
addresses the rights of individual persons. When blasphemy is incorporated in the
Dutch criminal code, it is because someone is personally aected not because we
want to protect God or a religion as such. There has to be an identiable victim.
The underlying notion is that believers may be seriously oended by blasphemic
expressions which negatively aects their freedom of religion or belief, and possibly other human rights.
To some extent I can see the merit of more general, non-discriminatory provisions prohibiting blasphemy. Considering the situation in the Netherlands, there
are those who specialise in nding ways of berating the Islamic faith. For adherents of the Islamic faith in the Netherlands, this does aect their freedom of
religion or belief, for they are nding themselves in an increasingly hostile social
climate. In the end, this may put them under pressure to refrain from manifesting
their religion in public. On the other hand, those who express themselves this
way claim that they have the right or even the duty to express their views. I am
inclined to think that the solution is yet again a balancing act: it may not be necessary to restrict freedom of expression but at least the government can make clear
that it disapproves of such insults and that it does not share the opinions concerned. This is also what actually happens today. It may then not be necessary or
even wise to resort to law enforcement measures, as the harm done to the religious
community concerned can to some extent be repaired by such ocial governmental statements.
The example of Pakistan shows that blasphemy laws can lend themselves to a
discriminatory manner of implementation. This holds in particular if blasphemy
is restricted to certain religions or beliefs. In that case other religions or beliefs
may be severely hampered in their freedom to manifest their religion or belief
since the manifestations of these religions or beliefs, especially if they denounce
the protected religions or beliefs, may be seen as blasphemy whereas the opposite

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D. de Jong / Religion and Human Rights 3 (2008) 113

is then not true. If the protected religion manifests itself in blasphemous expressions, that is not punishable by law. In conclusion: blasphemy laws are not in
themselves necessary to protect freedom of religion or belief, but can be useful,
provided that the following conditions are met:
they should be formulated in such a way that they relate to the rights of individual persons and not to abstract concepts like God or religion;
they have to protect adherents of all religions or beliefs in a non-discriminatory
manner;
they have to be applied restrictively, i.e., only if there are no other ways of
reducing the harm brought to believers.
C. Remedial Measures
In the UN, the right to remedy has been elaborated by the Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, which the General Assembly adopted in 2005.12 Elements of
this right can also be found in the Articles on Responsibility of States for internationally wrongful acts, which were taken note of by the General Assembly in
2001.13 Several elements have been distinguished:
cessation and non-repetition: the State will have to make sure that it has taken
enough precautionary measures so that it is unlikely that interferences will reoccur (e.g., punishment of the oender, but also educational and other measures);
reparation: e.g. nancial and other forms of reparation by the perpetrator (restitution, compensation, satisfaction).
I shall refrain from going into any detail here, since the acceptance of positive
State obligations lies at the heart of these detailed instruments and does not therefore add new insights to existing obligations in this regard.

IV. Violation of the Freedom of Religion or Belief by Non-State Actors

At rst, the acceptance of the insight that non-State actors can violate human
rights may seem to help in further clarifying and extending the positive State
obligations referred to in the previous section regarding the protection of freedom
of religion or belief.
12
13

GA Res. 60/147.
GA Res 56/83 of 12 December 2001.

D. de Jong / Religion and Human Rights 3 (2008) 113

11

For example, preventive policies are now not only necessary to promote tolerance but also to prevent violations of the freedom of religion or belief by nonState actors. In practice, State policies will not have to dier much from the way
they have been described in section IIIA. However, whereas the promotion of
tolerance is still a vague concept, the number of incidents interfering with the
enjoyment of freedom of religion or belief is not. Governments who are incapable
of providing enough protection against such interferences are in danger of being
found to be violating international human rights law themselves.
The same holds true for enforcement measures: violations of human rights
have to be punishable by law. Making it a criminal oence to interfere with the
freedom of religion or belief becomes a legal obligation for the State and ineective
enforcement policies may lead to the conclusion that the State itself violates
human rights law. Except in cases of crimes against humanity, no provision has
been made for enforcement by the international community; and even the jurisdiction of the International Criminal Court with respect to such crimes only
arises if the State concerned cannot or does not want to prosecute the oender
itself. The idea that non-State actors can also violate human rights, has not yet
crept into the mandates of the UN human rights bodies. It is to be expected,
however, that in future the Human Rights Council and the Human Rights Committee may have to look into such violations. In that case, the easiest and probably
least controversial way of doing so is by putting more emphasis on the (lack of )
enforcement measures by the State.
Perhaps the most important eects of the recognition of the possibility of
human rights violations by non-State actors are to be found in the eld of remedy. When the Basic Principles were drafted, the generally held view was that they
were to apply to violations by States themselves. However, I cannot see why these
principles would not also apply in respect of non-State actors: many aspects are
common practice under the rule of law. This holds for the enforcement measures
and for the compensation of the victims, be it by the perpetrator or by the State.
At this stage it is yet dicult to grasp the full range of possible implications of
this new legal development, but it is fair to say that if applied in respect of the
freedom of religion or belief there may also be unforeseen negative consequences
for religious communities. Whereas in the past States generally were not required
to interfere with the internal aairs of religious communities, this may well have
to change, if the idea of human rights violations by non-State actors becomes
more dominant.
There are many examples to be given concerning the dilemmas for governments. One could think of, for example, the position of women in religious
organisations. If non-State actors can violate human rights, is it then not a violation of the right to non-discrimination based on sex, if the right to celebrate mass
is conned to men? The general jurisprudence in these cases used to be based on
the consideration of whether there are alternative institutions for believers to

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which they can turn: the idea is that you do not have to belong to a religious
organisation with this policy. It remains to be seen, however, if this jurisprudence
can be maintained in future.
In my opinion, the ease with which the international community has accepted
that tracking in human beings is a violation of human rights, is remarkable. The
consequences of this step for what used to be the internal aairs of religious
communities have yet to be identied, but a State who wants to restrict the freedom to manifest ones religion or belief in public or in private, alone or in community with others, can now argue that it is simply implementing its policies to
prevent human rights violations from taking place. Although the argument holds
both ways, and can also help in strengthening the position of religious and belief
communities to be protected from interference by other non-State actors, I am
afraid that at times when the freedom of religion or belief is under attack, the net
eect of this development will be to diminish this freedom rather than to
strengthen it.

V. Conclusion
The recent developments concerning positive State obligations, also in respect of
non-State actors can help in providing guidance in dicult matters such as the
relationship between freedom of expression and freedom of religion or belief.
Instead of seeking refuge to article 20 ICCPR which prohibits advocacy of, inter
alia, religious hatred that constitutes incitement to discrimination, hostility or
violence, States can now refer to a policy aimed at the prevention of violations of
human rights by non-State actors. However, the bottom line remains the same:
even if certain expressions may undermine and in the longer term violate the
freedom to manifest ones religion or belief States also have to protect freedom of
expression.
From the outset it is important to realise that what can help in defending the
freedom of religion or belief, may also be used against it. Whereas many religious
communities may welcome the additional protection against interference by nonState actors, at the same time they may also become exposed to State interference
with matters which thus far were considered their own internal aairs. Even religious expressions may come under scrutiny, as we already witness with regard to
sermons that are deemed to support violence or terrorism, because they are seen
as violating the human rights of others.
The danger exists that in the end it may well depend on the power of the various lobbies, which human right will prevail: in a secularised society, the voice of
the free media may prove to be more powerful than the voice of religious minorities. If society is unfamiliar with the religious precepts of those minorities, the
prevailing trend may well be to ask the State to interfere with their religious prac-

D. de Jong / Religion and Human Rights 3 (2008) 113

13

tices instead of protecting the rights of these minorities. The international community therefore has to remain vigilant to these new developments, and stand
ready to condemn violations of the freedom of religion or belief and to accept
limitations only insofar as the limitation grounds of article 18, paragraph 3
ICCPR have been met.
Ever since it proved so dicult to reach agreement on the 1981 UN Declaration, both States and academics have argued that it is too risky an enterprise to
elaborate a Convention on the Freedom of Religion or Belief. That may still be
true, but in view of the new legal developments discussed in this article more
guidance on the scope of this freedom, not only vis--vis the State but also towards
non-State actors is quickly proving necessary. More generally, the implications of
the idea that non-State actors can violate human rights, have to be examined by
the international community. In the case of what are generally considered criminal oences, such as tracking, this may be relatively straightforward, but especially in cases where more than one human right is involved, further guidance by,
for example, the Human Rights Committee is called for.