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Freedom of Religion or Belief - An International Law Commentary by Bielefeldt, Prof Heiner; Ghanea, Nazila, Dr; Wiener, Michael, Dr (21st January 2016)

Part 1 Freedom of Religion or Belief, 1.3.5 Appointing Clergy

Heiner Bielefeldt, Nazila Ghanea, Michael Wiener

From: Freedom of Religion or Belief: An International Law Commentary

Prof Heiner Bielefeldt, Nazila Ghanea, Michael Wiener

Subject(s):
Religion — Freedom of association — Freedom of expression — Freedom of thought, conscience, and religion — Minorities — Right to work

1.3.5.  Appointing Clergy

  1. I.  International Standards 180

  2. II.  Introduction 180

  3. III.  Historical Background 181

  4. IV.  Mandate Practice of UN Special Procedures and Treaty Bodies 182

    1. 1.  Direct State Interference in the Appointment Procedure 182

    2. 2.  Management Measures for the Reincarnation of Living Buddhas 184

    3. 3.  Abduction and Imprisonment of the Religious Leadership 186

  5. V.  Issues of Interpretation 187

    1. 1.  Indirect Impediments to the Appointment of Religious Leaders 187

    2. 2.  Religious Autonomy vs Equality between Men and Women? 188

I.  International Standards

  • 1981 Declaration of the General Assembly

  • Article 6(g): The right to freedom of thought, conscience, religion or belief includes the freedom ‘[t]o train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief’.

  • Human Rights Committee general comment no. 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 […].’

II.  Introduction

Article 18 of the UDHR and article 18 of the ICCPR both refer to the freedom to manifest one’s religion or belief in ‘teaching’ and ‘practice’, albeit without giving further details on the scope of protected manifestations in the context of appointing religious leaders. Article 6(g) of the 1981 Declaration provides some more guidance by stipulating the freedom ‘to train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief’. This clarifies that both the religious training and the subsequent designation procedures, including by appointment, election, or succession, are covered. In this context, obviously not only the formal act of appointing religious leaders is protected, but also their selection, which was underlined by the Human Rights Committee’s reference in its general comment no. 22 to the ‘freedom to choose their religious leaders, priests and teachers’ (emphasis added).

In practice, the freedom to train, choose, appoint, elect, or designate by succession religious leaders, priests, and teachers is of vital importance for the continued existence of religious or belief communities. If a State systematically abducts, arrests, or imprisons religious leaders this may jeopardize the very survival of this community. Likewise, direct State interference in the appointment procedure has led to divisions within communities and poisoned the relationship between different sub-groups. A famous historical example (p. 181) is the medieval Investiture Contest over the appointment of bishops in the context of which the motto ‘libertas ecclesiae’ (freedom of the Church) was coined. Such conflicts are not a matter of the past though, but continue to cause political and religious strife, which may tear communities apart. Government interferences even include management measures for the recognition of ‘reincarnations’ of living Buddhas, which have led to deep divisions in the religious community concerned, with some believers following the State-appointed leader and others following the leader who has not been officially recognized. As the result, the survival of communities may be in serious peril.

In addition, even legal requirements which on the surface seem to be ‘neutral’ and unrelated to religious issues, for example the domestic regulation of surnames, may have implications on the training and appointment of religious leaders if there are specific religious rules which stipulate certain requirements, e.g. to adopt a religious name for someone who wishes to become a priest. However, the precise threshold for finding a violation of freedom of religion or belief in such cases of indirect impediments to the appointment of religious leaders is disputed, especially with regard to religious rules that are imposed by religious leaders abroad. There seems to be a particular suspicion against foreign rules and interventions, which in the travaux préparatoires of the 1981 Declaration ultimately led to the deletion of a specific reference in article 6(g) to training and having contacts abroad with communities belonging to the same religion or belief. Yet, article 6(i) explicitly protects the freedom to ‘establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels’ (emphasis added).

Another issue of interpretation is whether the autonomy of religious communities in selecting and appointing their religious leaders can—or even must—be curtailed by the State in order to safeguard the equality between men and women. In this regard it is suggested to endeavour reconciling and harmonizing all pertinent human rights and principles on a case-by-case basis with a view to producing ‘practical concordance’ of the legal values involved (see below section V.2.).

III.  Historical Background

In 1959, the Sub-Commission’s Special Rapporteur Arcot Krishnaswami provided in his Rule 11 that ‘1. No group professing a religion or belief should be prevented from training the personnel required for the performance of practices or observances prescribed by that religion or belief. 2. When such training is available only outside the country, no permanent limitations should be placed upon travel abroad for the purpose of undergoing such training.’1 In January 1964, the Sub-Commission slightly changed this formulation in article VI(4) of its preliminary draft declaration, which states that every religious group or community ‘shall be permitted to train the personnel required for the performance of its practices or rites’, while they should not ‘be prevented from bringing teachers from abroad for this purpose’.2 However, two months later, the Commission’s Working Group condensed this into ‘(b) freedom to teach, to disseminate [at home and abroad], and to learn their religion or belief, and also its sacred languages or traditions’.3 In 1973, the (p. 182) Netherlands suggested to delete in draft article VI(b) the words placed between square brackets (‘at home and abroad’) and to add in a separate draft article VII that ‘[r]eligious congregations have the right to train ministers and teachers and to have contacts with communities and institutions belonging to the same religion or belief both within the country and abroad.’4 In 1981, the Commission’s Working Group considered another proposal submitted by the United States of America, which in the Cold War context led to lengthy discussions and a counter-proposal by the USSR.5 While the Commission’s Working Group ultimately adopted a compromise text in draft article VI (‘(g) To train, to appoint, to elect or to designate by succession appropriate leaders called for by the requirements and standards of any religion or belief’), the representatives of the Byelorussian SSR and the USSR did not support this decision, criticizing that there was no explicit reference to ‘leaders of atheist organizations’. However, the Working Group’s text was subsequently not changed by the Commission on Human Rights, the Economic and Social Council, and the General Assembly and ultimately became article 6(g) of the 1981 Declaration.

In July 1992, the initial draft of the general comment no. 22 had referred to the freedom of religious groups to appoint their leaders, priests, and teachers, but upon suggestion of Human Rights Committee member Mr Sadi the word ‘appoint’ was replaced by ‘choose’, supposedly to clarify that not only the formal act of appointing religious leaders is protected but also their selection.6 Furthermore, there were proposals to add the words ‘in particular’ or ‘inter alia’ before giving the examples of acts that are integral to the conduct by religious groups of their basic affairs. However, the formulation of the general comment as adopted on 20 July 1993 (‘such as’) also implies that the list of examples is not meant to be exhaustive.

IV.  Mandate Practice of UN Special Procedures and Treaty Bodies

1.  Direct State Interference in the Appointment Procedure

In early reports of the Special Rapporteur on freedom of religion or belief, the right to train, appoint, elect, or designate religious leaders was raised mainly in a Cold War context. For example, Special Rapporteur d’Almeida Ribeiro noted in his first report to the Commission on Human Rights that ‘in one country, no priest has been ordained for 40 years’ and that in another (again undisclosed) country ‘clergymen must obtain a licence issued by the State to be able to officiate’, leading to serious shortage of clergymen and increased dependence on ‘lay brothers’ for taking charge of individual parishes.7 (p. 183) Furthermore, after the end of the Soviet Union, Special Rapporteur Jahangir expressed concern at the State’s interference in religious affairs of the different belief communities in Turkmenistan, e.g. the fact that local and regional imams are appointed by the Council on Religious Affairs only if they have graduated from the Magtymuly Turkmen State University and the fact that no training institutions exist in Turkmenistan for non-Muslim religious communities, compelling them to rely on clergy trained abroad.8

In his country report and follow-up table on Greece, Special Rapporteur Amor noted serious problems and international ramifications relating to the methods of appointing muftis of the Muslim community in Thrace, stating that ‘the Muslims who favour the method of appointing muftis that was established in 1990—and there do not seem to be too many of them—reportedly are being or have been subjected to pressure from Turkey, which actively favours the unofficial muftis, and are apparently prohibited from entering Turkey; while Turkish theologians invited by the unofficial muftis are said to be denied entry to Greece.’9 While the 1913 Treaty of Athens detailed the protection of the religious privileges of Muslims residing in Greece, the Greek Government considers that the provisions of the Treaty of Athens related to minority protection (including its Article 11, stating that ‘[t]he muftis, each within his own community, shall be elected by Mussulman electors’) have been superseded by the 1923 Treaty of Lausanne.10 A Decree of 24 December 1990 replaced the previous election procedure by a nomination procedure and the Greek Government asserts that muftis must be appointed by the State, since they exercise judicial functions in family and inheritance law matters of the Muslim minority in Thrace. The Greek Government stresses in its 2014 report to the Human Rights Committee that it is involved only after the selection has been made and that it is ‘examining possible ways that would further improve the process for the selection of the Mufti’.11 In her mission report on Greece, the Independent Expert on minority issues Gay McDougall held in 2009 that the ‘appointment by government of religious officials, such as Muftis, infringes on the right of persons belonging to the Muslim minority to effectively participate in the decision-making processes that affect their daily lives’ and also constituted ‘an infringement on freedom of religion’.12 Her successor, Special Rapporteur Rita Izsák, stressed in her 2013 thematic report on the rights of religious minorities the necessary respect for the autonomy of religious institutions by noting that ‘[r]espect for the appointment and election of leaders requires non-interference on the part of the State and some recognition of the relevant leader(s) or spokesperson(s) as a representative of that community’.13 Yet, Mr Mehmet Agga and Mr Ibraim Serif, who had acted as muftis despite not being recognized by the Greek authorities, were convicted of the offence of usurping the title and signing illegal documents. This had already been taken (p. 184) up in an allegation letter by Special Rapporteur d’Almeida Ribeiro in 1991, and Special Rapporteur Amor in his 1996 mission report on Greece also noted a deep division of the Muslim community as a consequence of these events.14 In addition, the European Court of Human Rights found violations of the freedom to manifest their religion in worship and teaching as it had not been shown that Mr Serif’s and Mr Agga’s convictions for usurping the functions of a minister of a ‘known religion’ were justified by a pressing social need.15

2.  Management Measures for the Reincarnation of Living Buddhas

Furthermore, Special Procedures and Treaty Bodies have addressed the Chinese management measures for the reincarnation of living Buddhas in Tibetan Buddhism, in particular with regard to the contentious recognition of the eleventh reincarnation of the Panchen Lama, i.e. the second highest ranking religious figure of the Gelugpa school of Tibetan Buddhism. In a communication of 31 October 1991, Special Rapporteur d’Almeida Ribeiro alleged that ‘the procedures for finding reincarnations of monks in Tibet will be conducted by a committee organized by the authorities’, which ‘would violate an ancient religious tradition and are said to directly affect the search for the reincarnation of the Panchen Lama whose successor would have to be approved by the State Council.’16 In its reply letter of 6 February 1992, the Chinese Government rejected the claimed violation and argued that it ‘treats the religious ritual, tradition and historical convention associated with the present-day identification of reincarnations of Tibetan living Buddhas, and the activities of the various monasteries and temples involved, with the utmost respect’.17 On 14 November 1995, Special Rapporteur Amor sent an urgent appeal concerning the arrest of Chadrel Rimpoché, the head of the committee to seek to identify the successor to the Panchen Lama; however, the Chinese Government attributed Chadrel Rimpoché’s resignation from that committee to health reasons and ‘considered illegal the proclamation by the Dalai Lama of a child as reincarnation of the Panchen Lama’.18 While the Chinese Government argued that security measures for the boy and his parents had been adopted at their request following an abduction attempt by exiled Tibetan separatists,19 Special Rapporteur Jahangir referred to Gedhun Choekyi Nyima’s disappearance three days after having been recognized as the eleventh reincarnation of the Panchen Lama by the Dalai Lama and she expressed ‘concern about the grave interference with the freedom of belief of the Tibetan Buddhists who have the right to determine their clergy in (p. 185) accordance with their own rites and who have been deprived of their religious leader.’20 The Committee on the Rights of the Child was also deeply disturbed by ‘the situation of Gedhun Choekyi Nyima, who disappeared at the age of 6 years in 1995, and the fact that, while the State party has provided some information, it has not allowed any independent expert to visit and confirm his whereabouts, the fulfilment of his rights and his well-being’ and recommended China to allow an independent expert to visit him and verify his health and living conditions.21 The Committee against Torture called on China to ‘adopt all necessary measures to prohibit and prevent enforced disappearances, to shed light on the fate of missing persons, including Genden Choekyi Nyima’.22 The Working Group on Enforced or Involuntary Disappearances has also monitored the case of Gedhun Choekyi Nyima, stating in a press release of 8 April 2011 that ‘[w]hile the Chinese authorities have admitted taking him, they have continually refused to divulge any information about him or his whereabouts, making his case an enforced disappearance.’23 Yet in 2013, the Chinese Government still maintained that Gedhun Choekyi Nyima had been living a normal life for many years, was in good health and had received a good education.24

In addition to taking up the specific case of Gedhun Choekyi Nyima, the Special Rapporteurs on freedom of religion or belief have also addressed the wider management measures for the reincarnation of living Buddhas in Tibetan Buddhism. Special Rapporteur Jahangir asked whether the 2007 ‘State Religious Affairs Bureau Order No. 5 establishes or expands Government procedural control of the principal stages of identifying and educating reincarnated Tibetan Buddhist teachers and that such control would allegedly include: a) Determining whether or not a reincarnated teacher who passes away may be reincarnated again and whether a monastery is entitled to have a reincarnated teacher in residence; b) Conducting a search for a reincarnation; c) Recognizing a reincarnation and obtaining government approval of the recognition; d) Installing a reincarnation in a monastery and issuing of approval documents; e) Providing education and religious training for a reincarnation’.25 Furthermore, Special Rapporteur Bielefeldt referred to the 2010 Order No. 8 on a management measure for Tibetan Buddhist monasteries and temples, which ‘reportedly curtails traditional Buddhist practices including the transmission of teachings and traditional practices of Buddhist hierarchy as well as enabling Government authorities to implement policies uniformly across the monastic institutions’.26 As flagged also by non-governmental organizations in their submissions to the Human Rights Council, the above-mentioned measures—such as restrictions on travel for students and teachers as well as on transfer of religious resources between monasteries—adversely affect access to advanced religious education and increase the Chinese authorities’ control over monastic institutions.27

(p. 186) 3.  Abduction and Imprisonment of the Religious Leadership

Formal or informal leaders of religious minorities, especially those that are not recognized by the State, are in a particularly vulnerable situation and may be directly targeted by abduction, arrest, and imprisonment. For example, several Special Procedures mandate-holders have taken up in their opinions, communications, and press statements the treatment of the leadership of the Bahá’í community in the Islamic Republic of Iran. The Working Group on Arbitrary Detention referred to the abduction and disappearance of the nine members of the National Spiritual Assembly of Iran on 21 August 1980, as well as the arrest and imprisonment in 2008 of seven persons who had been managing the Bahá’í community’s religious and administrative affairs in Iran (called the Yaran), stating in its Opinion no. 34/2008 that the detention of these seven Bahá’ís was arbitrary and contrary to articles 9, 10, and 18 of the UDHR as well as articles 9, 14, and 18 of the ICCPR.28 In addition, the Working Group sent several communications jointly with the Special Rapporteur on freedom of religion or belief, the Independent Expert on minority issues, and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance.29 In this context, Special Rapporteurs Jahangir and Bielefeldt observed that they were very concerned by the arrest and detention of members of the Bahá’í community and the continued violations of their freedom of religion or belief.30 Furthermore, the High Commissioner and the Secretary-General also remained ‘concerned that the detention of those individuals may breach the obligations of the Islamic Republic of Iran under the International Covenant on Civil and Political Rights, in particular freedom of religion and belief and freedom of expression and association’.31 In August 2010, each of the seven Bahá’í members received twenty-year prison sentences on charges of espionage, ‘propaganda against the regime’, ‘collusion and collaboration for the purpose of endangering the national security’, and ‘spreading corruption on earth’, which were reportedly reduced to ten years but the court reinstated the original prison sentences of twenty years in March 2011. On the fifth anniversary of the arrest, four thematic and country-specific Special Procedures mandate-holders issued a press statement, stressing that the seven Bahá’ís were ‘imprisoned solely for managing the religious and administrative affairs of their community’ and that the Islamic Republic of Iran must ensure the practice of the beliefs of Bahá’ís and other unrecognized minority faiths ‘without hindrance and fear’.32 This underscores the negative impact of the persecution of religious leaders, i.e. by jeopardizing the management and administration of the religious minority as well as by intimidating the other believers, who ultimately may (p. 187) be deterred from taking up formal or even informal leadership positions within their community.

V.  Issues of Interpretation

1.  Indirect Impediments to the Appointment of Religious Leaders

The training, appointment, or designation of religious leaders can also be impeded by seemingly neutral legal requirements, such as the domestic regulation of surnames, yet the precise threshold for finding a violation of freedom of religion or belief is disputed.

In the Human Rights Committee case of Coeriel and Aurik v The Netherlands, the authors had claimed that it was mandatory to adopt Hindu names for individuals wishing to study and practise the Hindu religion and to become Hindu priests. However, the highest administrative tribunal in the Netherlands (Raad van State) was not convinced that the authors’ surnames needed to be legally changed to give them the chance to become Hindu priests and also the European Commission of Human Rights found their complaint manifestly ill-founded because they had not established that their religious studies would be impeded by the refusal to modify their surnames.33 Similarly, the Human Rights Committee declared inadmissible the communication’s aspect under article 18 of the ICCPR, considering that the ‘regulation of surnames and the change thereof was eminently a matter of public order and restrictions were therefore permissible under paragraph 3 of article 18’ and that the Netherlands ‘could not be held accountable for restrictions placed upon the exercise of religious offices by religious leaders in another country’.34

In particular, the Human Rights Committee’s latter argument in Coeriel has been rightly criticized in the literature, for instance by Sarah Joseph and Melissa Castan, who contend that the true reason behind this inadmissibility decision seems to be the fact that religious leaders abroad had imposed the relevant religious rules, and that invoking such a principle ‘seriously limits the effectiveness of article 18’ and should not be followed in the future.35 Although the Human Rights Committee referred to its Views in Coeriel when considering the merits of subsequent communications,36 this was only in the context of article 17 of the ICCPR and thus fortunately did not establish a ‘Coeriel principle’ in its jurisprudence with regard to freedom of religion or belief. The mandate practice of Special Procedures also does not confirm such a potentially dangerous principle, since Special Rapporteur Jahangir referred to the Coeriel case only in a thematic report on (p. 188) religious discrimination in administrative procedures, noting the problem that ‘persons who wish to change their name because their religion requires it may find their request denied.’37 In addition, she put a positive and more generic spin to the Views of the Human Rights Committee by arguing that it had ‘implied in Coeriel et al v The Netherlands that a case may fall within the ambit of article 18 of the International Covenant on Civil and Political Rights when a State does not allow a change of family name of a person who claims this is necessary in the context of his or her religion’.38

Thus also indirect impediments to the appointment of religious leaders, e.g. the denial of required name changes, are prohibited if they infringe upon the right to train, appoint, elect, or designate by succession appropriate leaders. Furthermore, despite the above-mentioned Coeriel case, there is no lesser protection for religious rules that are imposed by religious leaders abroad because article 6(g) of the 1981 Declaration explicitly protects the appointment of ‘appropriate leaders called for by the requirements and standards of any religion or belief’.

Other widespread, allegedly ‘indirect’, impediments to the appointment of local religious leaders include those that are posed through immigration restrictions, national security concerns, and linguistic tests that may be demanded before local religious leaders are permitted to operate. Though sometimes falling within legitimate limitations, these may be unduly restrictive, discriminatory, and based on group stereotypes, or constitute control mechanisms for authoritarian States. We should not forget that many States control ‘religious affairs’ very closely under their civil service regulations, screening and censoring sermons, instructing them with the messages they are required to convey, and doing so under the guise of the only authoritatively permitted religious interpretation. At times, these institutions have such significant law and order roles that they could even be understood as arms of the intelligence services.

2.  Religious Autonomy vs Equality between Men and Women?

The autonomy of religious communities in selecting and appointing their religious leaders is sometimes juxtaposed with safeguarding the equality between men and women. The Greek Government, for example, argued that ‘elections of Muftis by the community are invalid since they do not allow the participation of women in the electoral process, violating constitutional and international standards’.39

Independent Expert McDougall in her mission report on Greece seemed to agree at least with the Government’s gender concerns as she concluded that it was ‘not an option to impose Shari’a Law in a fashion that violates the right to equality of women guaranteed in the constitution and under international law’.40 In addition, she recommended that ‘[r]eligious leaders should be chosen by their religious communities, but must be (p. 189) restricted to religious duties that do not infringe fundamental rights’ and that the ‘Greek civil courts must exercise effective monitoring of Mufti judicial decisions to guarantee faithful adherence to the guarantees in constitutional and international human rights law.’41

The Human Rights Committee in its 2005 concluding observations on Greece did not go as far as the call by Independent Expert McDougall to monitor the muftis’ decisions, but the Committee also expressed concern ‘about the impediments that Muslim women might face as a result of the non-application of the general law of Greece to the Muslim minority on matters such as marriage and inheritance’ and it urged Greece ‘to increase the awareness of Muslim women of their rights and the availability of remedies and to ensure that they benefit from the provisions of Greek civil law.’42

Special Rapporteur Bielefeldt took a slightly different approach than Independent Expert McDougall, by emphasizing in his thematic report on freedom of religion or belief and equality between men and women the significance of appointment decisions because ‘for many (not all) religious or belief communities, institutional questions, such as the appointment of religious leaders or the rules governing monastic life, directly or indirectly derive from the tenets of their faith.’43 He stressed that ‘[i]t cannot be the business of the State to shape or reshape religious traditions, nor can the State claim any binding authority in the interpretation of religious sources or in the definition of the tenets of faith. […] questions of how to institutionalize community life may significantly affect the religious self-understanding of a community. From this it follows that the State must generally respect the autonomy of religious institutions, also in policies of promoting equality between men and women.’44 At the same time Bielefeldt clarified that ‘freedom of religion or belief includes the right of internal dissidents, including women, to come up with alternative views, provide new readings of religious sources and try to exercise influence on a community’s religious self-understanding, which may change over time’ and that ‘in virtually all religious traditions, reform branches exist in which women may have better opportunities to achieve positions of religious authority.’45 With regard to the gender dimension, Bielefeldt fully shared his predecessor’s quote that ‘[i]t can no longer be taboo to demand that women’s rights take priority over intolerant beliefs used to justify gender discrimination’ and he added that ‘freedom of religion or belief can never serve as a justification for violations of the human rights of women and girls.’46

In sum, religious leaders when exercising judicial functions, for example in family and inheritance law matters, have to abide by human rights standards and principles, including equality between men and women. However, this does not in itself suffice to justify State interference in the appointment procedure of religious leaders because any limitations on the freedom to manifest one’s religion or belief must also have a legal basis, be (p. 190) conducive to pursuing a legitimate purpose, and the State has to demonstrate that no less restrictive means are available.47 There is neither an abstract hierarchy of rights nor a general trumping of the equality principle over religious freedom, or vice versa; instead, the endeavour should be to reconcile and harmonize all pertinent human rights and principles on a case-by-case basis with a view to producing ‘practical concordance’48 of the legal values involved. This should attempt to do justice to the various human rights norms at stake in a particular situation to the maximum possible under difficult circumstances. At the same, this case-by-case approach should not lead to arbitrary or ad hoc decisions by the State. Coherent community-led solutions could include reform movements, promoted inter alia by feminist theologians, which enjoy endorsement by their religious communities. Yet, Special Rapporteur Bielefeldt flagged in this context that ‘it cannot be the business of the State directly or indirectly to initiate such internal developments, which must always be left to believers themselves, since they remain the relevant rights holders in this regard.’49(p. 191)

Footnotes:

1  E/CN.4/Sub.2/200/Rev.1, p 65.

2  E/CN.4/873, para 142.

3  E/CN.4/1145, para 36.

4  A/C.3/L.2027. The German Democratic Republic and Poland subsequently proposed to add the words ‘in accordance with domestic law’ in the amendment suggested by the Netherlands (A/C.3/L.2032) and Oman observed its disagreement with the proposed amendment ‘as this might open doors for foreign interventions which might cause complications to security and order’ (E/CN.4/1146/Add.2, p 2).

5  Compare the US proposal in E/CN.4/L.1560/Add.16, para 73 (‘To train and appoint in adequate numbers ministers or other appropriate leaders called for by a religion or belief’) with the proposal submitted by the USSR in E/CN.4/L.1560/Add.16, para 78 (‘To train, to appoint, to elect or to designate by succession, in adequate numbers, the leaders, including leaders of atheist organizations, called for by the requirements of a religion or belief’). The Working Group subsequently deleted the references in the US proposal to ‘ministers’ and ‘in adequate numbers’ and reformulated the last part of the sentence to read ‘called for by the requirements and standards of any religion or belief’.

6  CCPR/C/SR.1166, para 39.

7  E/CN.4/1987/35, para 56.

8  A/HRC/10/8/Add.4, paras 45 and 47.

9  See A/51/542/Add.1, paras 120 and 138; A/52/477/Add.1, para 4.

10  A/HRC/10/11/Add.3, para 19 (footnote 5). See also Greece’s position in its first Universal Periodic Review in 2011 (A/HRC/18/13, paras 13, 15–16, and 50), where Greece did not support the UPR recommendation in para 85.4 to ‘[t]ake necessary steps to ensure the election of the muftis by the Turkish Muslim Minority and repeal the relevant articles of the Law No. 3536 regarding the appointment of imams, which the minority has severely opposed (Turkey)’, while supporting the UPR recommendation in para 83.22 to ‘[t]ake action with regard to the impediments that Muslim minority women in Thrace may face when sharia law is applied on family and inheritance law matters (Netherlands)’.

11  CCPR/C/GRC/2, para 205.

12  A/HRC/10/11/Add.3, para 95.

13  A/68/268, para 63.

14  See E/CN.4/1992/52, para 44; and A/51/542/Add.1, para 107.

15  Serif v Greece App no 38178/97 (ECtHR, judgment of 14 December 1999), para 54; and Agga v Greece (No 2) Apps no 50776/99 and 52912/99 (ECtHR, judgment of 17 October 2002), para 61; Agga v Greece (No 3) App no 32186/02 (ECtHR, judgment of 13 July 2006), para 29; Agga v Greece (No 4) App no 33331/02 (ECtHR, judgment of 13 July 2006), para 29.

16  E/CN.4/1992/52, para 22: ‘According to the sources, the following regulations with regard to searching for reincarnations have recently been established: 1. The search must be conducted under the leadership and guidance of the Chinese Communist Party; 2. The reincarnation must be found within Chinese territory, not in a foreign country; 3. The reincarnation must be determined and recognized by Lamas who remain in China. Those who live abroad have no right to either determine or recognize a reincarnation; 4. Reincarnations must not be found in the families of Communist Party Members.’

17  E/CN.4/1993/62, para 21.

18  See Special Rapporteur Amor’s urgent appeal (E/CN.4/1996/95, para 40) and the Chinese Government’s reply (E/CN.4/1997/91, para 43 (e)).

19  E/CN.4/1999/58, para 48.

20  E/CN.4/2006/5/Add.1, paras 94–95.

21  CRC/C/CHN/CO/3-4, paras 41(c) and 42(d). See also CRC/C/CHN/CO/2, paras 44–45.

22  CAT/C/CHN/CO/4, para 23.

23  ‘China: UN Expert Body Concerned About Recent Wave of Enforced Disappearances’ (OHCHR, 8 April 2011) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10928> accessed 22 September 2015.

24  See CAT/C/CHN/5, para 106; and CRC/C/SR.1834, para 31.

25  A/HRC/7/10/Add.1, para 61.

26  A/HRC/18/51, p 92 (case number CHN 9/2011).

27  See the written statements submitted by the Swiss Peace Foundation (A/HRC/16/NGO/28, para 13) and by the Society for Threatened Peoples (A/HRC/16/NGO/133, p 3).

28  Working Group on Arbitrary Detention, Opinion no. 34/2008 (Islamic Republic of Iran), adopted on 20 November 2008, A/HRC/13/30/Add.1, pp 79–81 (see paras 6 and 15). Concerning the events in 1980, see also the note by the Secretary-General on the treatment of Bahá’ís in Iran, E/CN.4/1517 (including in para 7 the section entitled ‘Systematic elimination of the leaders of the Iranian Baha’i community’, submitted by the Bahá’í International Community) as well as Iran Human Rights Documentation Center, A Faith Denied: The Persecution of the Bahá’ís of Iran (Iran Human Rights Documentation Center 2006) <www.iranhrdc.org/files.php?force&file=reports_en/A_Faith_Denied_Dec06_397039411.pdf> accessed 22 September 2015, pp 23–4 and Appendix 2.

29  A/HRC/10/8/Add.1, paras 93–94 and 105; A/HRC/13/40/Add.1, paras 130–135 and 137; A/HRC/16/53/Add.1, paras 186 and 194; A/HRC/18/51, p 57 (case IRN 4/2011).

30  A/HRC/10/8/Add.1, para 94; A/HRC/16/53/Add.1, para 193.

31  A/64/357, para 48.

32  ‘UN Human Rights Experts Urge Iran to Release Baha’i Community Leaders’ (OHCHR, 13 May 2013) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13321> accessed 22 September 2015.

33  Coeriel and Aurik v the Netherlands App no 18050/91 (European Commission on Human Rights, decision of 2 July 1992); see also the references in Coeriel and Aurik v the Netherlands Comm no 453/1991 (Human Rights Committee, views of 31 October 1994) CCPR/C/52/D/453/1991, paras 2.3 and 2.4.

34  Coeriel and Aurik v the Netherlands, CCPR/C/52/D/453/1991, para 6.1. However, with regard to privacy, the majority of the Human Rights Committee held that in the circumstances of the instant case the refusal of the authors’ request was arbitrary within the meaning of article 17(1) of the ICCPR, since the grounds for limiting the authors’ rights were not deemed reasonable ( ibid., para 10.5).

35  Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, OUP 2013) 576–7. See also above (section III.) on the discussion during the travaux préparatoires of the 1981 Declaration concerning the suggested wording about ‘teachers from abroad’.

36  See Raihman v Latvia Comm no 1621/2007 (Human Rights Committee, views of 28 October 2010) CCPR/C/100/D/1621/2007, para 8.2; Bulgakov v Ukraine Comm no 1803/2008 (Human Rights Committee, decision of 29 October 2012) CCPR/C/106/D/1803/2008, para 7.2.

37  A/63/161, para 37.

38  Ibid., para 61.

39  See the summary in Independent Expert McDougall’s country report on Greece (A/HRC/10/11/Add.3, para 19). However, in an earlier reply letter to Special Rapporteur d’Almeida Ribeiro on 30 November 1991 (E/CN.4/1992/52, para 45), the Greek Government did not refer to the lack of women’s participation in the electoral process but rather argued altogether against the designation of muftis through popular election, because this allegedly harmed ‘their independence, as it would, inevitably, create and enhance a situation of political clientele. Such a designation would also jeopardize the principle of the functional and personal independence of the judge, a principle respected by most modern States.’

40  A/HRC/10/11/Add.3, para 95.

41  Ibid., paras 95 and 101.

42  CCPR/CO/83/GRC, para 8. See also the 2014 concluding observations on Chad, in which the Human Rights Committee recommended the State party to ‘abolish polygamy and the right of repudiation and consider measures to be taken to prevent those practices’ as well as to ‘organize awareness-raising programmes and campaigns among women, local chiefs and religious leaders to change traditional attitudes detrimental to women’s enjoyment of their human rights’ (CCPR/C/TCD/CO/2, para 8).

43  A/68/290, para 57.

44  Ibid., para 59.

45  Ibid., paras 60 and 61.

46  Special Rapporteur Jahangir’s statement (A/65/207, para 69) was quoted by Special Rapporteur Bielefeldt in A/HRC/16/53, para 16; A/HRC/19/60/Add.1, para 44; A/66/156, para 16; and A/68/290, para 30.

47  See A/68/290, para 31.

48  The doctrine of ‘praktische Konkordanz’ was developed by Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (20th edn reprint, C. F. Müller 1999) para 72. In their periodic State party reports to treaty bodies, Austria (CCPR/C/83/Add.3, para 208) and Switzerland (CEDAW/C/CHE/3, para 142) also referred to the principle of ‘practical concordance’.

49  A/68/290, para 61. See also below chapter 3.1. (under IV.2.(d) on ‘Autonomy of religious institutions and their limits’).