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

Part 1 Freedom of Religion or Belief, 1.3.4 Observance of Holidays and Days of Rest

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

Heiner Bielefeldt, Nazila Ghanea, Michael Wiener

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

1.3.4.  Observance of Holidays and Days of Rest

  1. I.  International Standards 166

  2. II.  Introduction 166

  3. III.  Historical Background 167

  4. IV.  Mandate Practice of UN Special Procedures and Treaty Bodies 169

    1. 1.  Problems Arising in Multi-Religious Societies 169

    2. 2.  Governments’ Replies 170

    3. 3.  Good Practices 171

  5. V.  Issues of Interpretation 172

    1. 1.  ‘Holidays’ vs ‘Holy Days’ 172

    2. 2.  Negative Freedom 173

    3. 3.  Preventing the Abuse of Privileges 174

    4. 4.  Reasonable Accommodation 176

I.  International Standards

  • 1981 Declaration of the General Assembly

  • Article 6(h): The right to freedom of thought, conscience, religion or belief includes the freedom ‘[t]o observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief’.

  • Human Rights Committee general comment no. 22

  • Para 4: ‘The concept of worship extends to […] the observance of holidays and days of rest.’

II.  Introduction

It is of vital importance for many believers, both individually and in community with others, to be able to celebrate holidays and ceremonies as well as to observe days of rest in accordance with the precepts of their religion or belief. Holidays and days of rest provide opportunities for personal reflection and meditation, family reunions, the performance of rituals and ceremonies, and for experiencing the community dimension of religion in a more intensive manner than usual. Knowing that adherents of one’s faith living in different parts of the globe celebrate the same holidays can foster a sense of belonging and solidarity beyond State boundaries. Holidays can also lead to an increased visibility of religion in public life, for instance by holding processions, pilgrimages, and open-air worship. Beyond such functional usefulness, the celebration of holidays may assume a highly symbolic significance for individuals and communities possibly even becoming a decisive marker of particular religious identities. Ample evidence shows that religious pluralism manifests itself visibly not least through diverse liturgical calendars, holidays, and fasting periods. Moreover, many believers feel categorically obliged to cherish holidays in which they may see core elements of their personal and communitarian religious duties. When faced with conflicting religious or societal expectations, some may prefer to honour their holiday obligations even at the expense of suffering serious disadvantages, such as endangering their education or ruining their professional careers. Martyrologies (p. 167) of religious communities furthermore commemorate heroic stories of individuals or groups who were massacred defenceless, as a consequence of refusing to raise arms on holidays.1

Many of the annual public holidays at the domestic level have a religious background and also the weekly day of rest is usually established in line with the traditions of the main religion(s) in each country, mainly Fridays, Saturdays, or Sundays. By designating the weekly day of rest and public holidays for all individuals within its territory, the State inevitably favours the traditions of some religions or beliefs, often to the disadvantage of minority communities, especially for those that are not recognized by the State. Since societies have become increasingly multi-religious, the designation of holidays and days of rest leads in practice to serious problems for individual believers in the context of employment, education, and administration of justice, as evidenced in the cases mentioned below. However, members of religious or belief minorities may also be given special rights to enjoy paid holidays on at least some of their religious festivals, and other privileges or reasonable accommodation of the precepts of their religion or belief. Furthermore, the mandate of the Special Rapporteur on freedom of religion or belief has highlighted that religious holidays may also be a good opportunity to promote interreligious communication and intercultural understanding.

Several issues of interpretation have arisen in connection with holidays and days of rest, which will be discussed further below. For example, the travaux préparatoires of the 1981 Declaration show the divergent views in the Commission on Human Rights as to the appropriate object of protection as well as whether and how the religious character should be explicitly reflected in the text. This debate even came to the point whether it would be more appropriate to speak of ‘holidays’ or of ‘Holy Days’. While the later concept seems to embrace the holy status of particular days, the former formulation remains more careful and neutral.

Moreover, there have been discussions about the existence of a right not to celebrate holidays, i.e. the negative freedom not to be obliged to participate in certain public ceremonies. Furthermore, domestic jurisprudence on how to prevent the abuse of special rights and privileges, e.g. the enjoyment of additional paid holidays for believers of certain religious communities, raises several concerns in terms of the potential impact on the individual’s freedom of religion or belief, including the right to change one’s religion or belief. Finally, the UN Special Procedures and Treaty Bodies seem to be more in favour of promoting ‘reasonable accommodation’ for members of religious or belief minorities than the European Commission/Court of Human Rights in their case law.

III.  Historical Background

In 1948, the Government of the Netherlands had already suggested to include in article 16 of the draft International Covenant on Human Rights a new paragraph, according to which freedom of religion, thought, conscience, and belief shall also include the freedom for religious denominations or similar communities (including missionary societies) ‘to observe the religious holy-days and days of commemoration which observance shall be (p. 168) respected by the Government’.2 However, this suggested text was never seriously considered in the context of the subsequent travaux préparatoires of the ICCPR.3

In 1959, the Sub-Commission’s Special Rapporteur Krishnaswami dealt with religious holidays and days of rest in one of his sixteen Basic Rules, which were intended to show how the goals proclaimed in the Universal Declaration of Human Rights may be reached. Krishnaswami’s Rule 7 reads as follows: ‘The prescriptions of each religion or belief relating to holidays and days of rest should be taken into account, subject to the overriding consideration of the interest of society as a whole.’4

In January 1964, the Sub-Commission slightly changed this suggested wording in article VI, section 8, of its preliminary draft, notably by referring to ‘holy days’ rather than ‘holidays’, and by adding that ‘all discrimination in this regard between persons of different religions or beliefs shall be prohibited’.5 However, the draft prepared by the Commission’s Working Group two months later did not include any reference to religious holidays or days of rest, but only mentioned in article VI, section (d), of its draft more generally the ‘freedom to observe the rites and customs of their religion or belief’.6 Due to lack of time, the Commission’s Working Group could not discuss all proposals, including the following one by the United States of America: ‘II. Everyone shall be free to observe the Holy Days associated with his religion or belief.’7 Finally, the Working Group considered in February and March 1981 another proposal by the representative of the United States of America (‘To celebrate holidays in accordance with the customs of religion or beliefs’) and, upon proposals submitted by France, the Philippines, and Nigeria, added references to ‘ceremonies’ and to the observance of ‘days of rest’ as well as replaced the initial word ‘customs’ by ‘precepts’.8 The Commission on Human Rights and the General Assembly retained this wording and consequently article 6(h) of the 1981 Declaration, as adopted, provides for the freedom ‘to observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief’.

During the discussion of draft general comment no. 22 in 1992, the Human Rights Committee in its first draft included a reference to practices that are integral to ceremonial acts giving direct expression of belief, including ‘the observance of holidays’.9 Upon suggestion of Mr Dimitrijevic, the then Chairman/Rapporteur of the Working Group under article 40 of the ICCPR, the words ‘and days of rest’ were added after the word ‘holidays’, as he argued ‘in order to cover the various possibilities’.10 Interestingly, the French version of the summary records indicates ‘et des jours chômés’ as Mr Dimitrijevic’s suggestion, whereas the second draft and the final version of general comment no. 22 both (p. 169) refer to ‘et des jours de repos’.11 As the Working Group had worked in English, Mr Dimitrijevic at the introduction of the first draft requested the Committee members who used another language to draw attention to any points of translation, indicating that one member had already commented on the term ‘holidays’.12 In this context, the Spanish version is more explicit in referring to the religious character of the protected holidays by using the terms ‘las fiestas religiosas y los días de asueto’. Furthermore, the first and second drafts in Russian only included a reference to ‘?????????? ??????????’, whereas in the final version the words ‘? ???? ??????’ were added (thus also referring to ‘days of rest’ rather than simply to holidays).13 Subtle though these differences in wording seem to be at first glance, they still may have rather far-reaching implications for the conceptualization of the specific nature, status, and functions of the designed days, particularly when used in legal documents. While some of the formulations display functional understandings, others may be perceived as directly endorsing the religious perspectives within certain days or periods that have been designated as ‘holy’ or ‘sacred’.

IV.  Mandate Practice of UN Special Procedures and Treaty Bodies

1.  Problems Arising in Multi-Religious Societies

Given the vital importance which the celebration of religious holidays and days of rest has for many believers from diverse backgrounds, manifestations of disrespect or a general lack of sensitivity in this regard can lead to serious human rights violations. In 1959, the Sub-Commission’s Special Rapporteur Krishnaswami in his Study of Discrimination in the Matter of Religious Rights and Practices mentioned problems that arise in a multi-religious society in connection with the observance of holidays and days of rest. While acknowledging that these play an important part in the lives of members of every religion, he stressed that ‘various faiths attach differing degrees of importance to holidays and days of rest; while for some, strict observance of such days is a categorical imperative, for others it involves only a limited prohibition of certain activities or a prescription to attend services or to perform certain ceremonies.’14 This aspect was emphasized in 1987 by the Commission’s Special Rapporteur d’Almeida Ribeiro, who stated that ‘[t]he freedom to observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief (art. 6(h)) is particularly significant since it allows the faithful to perform a series of ceremonies and religious customs that often have cultural and traditional connotations.’15

Mandate-holders have also alleged that religious holidays had been banned in Cuba since 1961,16 and that the Tibet Autonomous Region’s Committee for Discipline Inspection and Supervision Department had issued a notification banning Party members, cadres, Government officials, and students from participating in religious activities (p. 170) such as the Saka Dawa, with the threat of severe punishment, including immediate dismissal from their posts.17 Special Rapporteur Jahangir raised in a communication to Indonesia that a proposed bill drawn up by the Religious Affairs Ministry reportedly only recognized five religions as official religions in Indonesia, thus excluding Confucianism, ‘which seemed to contradict the 2002 presidential decree that included Lunar New Year—a Confucian religious day—as an official religious holiday’.18 In a report on recognition issues, Special Rapporteur Bielefeldt noted that if communities do not enjoy legal personality status this may negatively affect their opportunities to celebrate holidays and ceremonies pursuant to article 6(h) of the 1981 Declaration.19

2.  Governments’ Replies

The replies of Governments to allegation letters and questionnaires sent by the mandate of the Special Rapporteur on freedom of religion or belief refer to the State practice with regard to holidays and days of rest, while some follow-up letters or subsequent comments by the Special Rapporteur show that the situation for members of religious or belief minorities may perhaps not be as rosy as portrayed in the Governments’ replies.

(a)  Examples on holidays

In 1989, the Permanent Mission of the Republic of Iraq implicitly confirmed the link between official recognition of a religion and the designation of public holidays by stating that ‘although Iraq is an Islamic State, it declared the beginning of the new Christian year a public holiday for all and Christmas is celebrated by all communities, since Christianity is recognized as a divinely revealed religion.’20

Similarly, the Permanent Mission of the Union of Myanmar indicated that ‘Christmas, Dipawali, and Idd ul Athwaha days are observed as official holidays in the Union of Myanmar in order that citizens of different faiths may also be able to celebrate their own feast days.’21

Sri Lanka replied that ‘[d]ays of significance to Buddhists, Hindus, Christians and followers of Islam have all been declared public holidays. […] In fact, even in the prisons in Sri Lanka provision has been made from the early 1930s for practice of all the major religions.’22

Tunisia stated that ‘article 292 of the Tunisian Code of Civil and Commercial Procedure prohibits any act of enforcement of a judgment on religious holidays or in religious ceremonies, either for Muslims, or for Jews or Christians.’23

(p. 171) (b)  Examples on days of rest

National practice shows that either Friday, Saturday, or Sunday is usually designated as the weekly day of rest, but some leeway may be given to members of religious minorities. For example, Sudan indicated that ‘Friday is a day of rest for Muslims, whereas Christians get Sunday and other holidays.’24

The Pakistani authorities stated that following the switch-over of the weekly day of rest from Sunday to Friday in government and semi-government offices and corporations in 1977, Christian employees are granted time off on Sunday after 11 a.m. and ‘employees belonging to minority communities are granted optional holidays liberally, to enable them to celebrate their religious holidays’.25

In Israel, the Hours of Work and Rest Law provides that the weekly rest includes ‘in the case of a Jew, the Sabbath day; in the case of a person other than a Jew, the Sabbath day or Sunday or Friday, whichever is acceptable for him and his weekly day of rest’.26

Furthermore, Muslims in Nigeria gave as an example of the tolerance shown by their community that ‘Sunday rather than Friday had since time immemorial been accepted as the weekly national day of rest.’27

3.  Good Practices

The mandate-holders noted with satisfaction several good examples of legislation granting recognition to the religious holidays of various communities and allowing exemptions on religious grounds in schools, e.g. in the country reports on Argentina28 and Bangladesh.29 In addition, they highlighted that ‘religious holidays are often an opportunity to invite the leaders of other communities and get to know them, their cultures and their religions, as well as to promote [interfaith] dialogue’30 and welcomed the publication in Germany of (p. 172) an intercultural calendar which includes Muslim holidays.31 In 1991, Special Rapporteur d’Almeida Ribeiro was pleased to note a ‘new climate of religious freedom’, referring to the development that ‘[a] number of countries in Eastern Europe have reintroduced Christmas as a public holiday or are in the process of doing so’.32 Special Rapporteur Bielefeldt acknowledged the high degree of cross-religious and cross-denominational open-heartedness which he had encountered throughout his visit to Sierra Leone.33 This also included the widespread practice of celebrating religious holidays across religious boundaries without thereby blurring the distinct features of different denominations.

V.  Issues of Interpretation

1.  ‘Holidays’ vs ‘Holy Days’

As indicated above, the travaux préparatoires of article 6(h) of the 1981 Declaration reveal a back-and-forth concerning the terminology of ‘holidays’ or ‘holy days’ (or even written with capital letters in order to emphasize the sacred character of the ‘Holy Days’). To some extent this issue was also linked to the divergent views during the Cold War with regard to the appropriate object of protection. On the one hand, in 1962 the representative of the Netherlands in the Commission on Human Rights argued that ‘religion could not, in principle be put on the same footing with agnosticism, free thought, atheism and rationalism’ and the French representative emphasized that it was hard to see the justification for the words ‘or belief’ concerning days of rest.34 On the other hand, the representative of the Union of Soviet Socialist Republics regretted that ‘some representatives appeared to have tried to convert the Commission to their own beliefs’ and he pointed out that ‘non-believers were equally entitled to regard their convictions as sacred’.35 Furthermore, the various language versions of the Human Rights Committee’s general comment no. 22 show a difference in how explicit the religious character of the protected holidays is referred to.

Some reports by the Special Rapporteur on freedom of religion or belief include references to Bahá’í, Hoa Hao, Jewish, and Muslim ‘holy days’ (i.e. written in two words), usually in the context of allegation letters sent to Governments or when summarizing domestic legislation and practice in country reports.36 However, the Special Rapporteur mainly uses the term ‘holidays’ (i.e. one word without explicit reference to ‘holy’), which is considered to be more neutral as it does not take a position on the sacred nature to these days. While State party reports37 and NGO submissions38 to Treaty Bodies occasionally refer to ‘holy days’ or ‘Holy Day’, the Human Rights Committee and (p. 173) the Committee on Economic, Social and Cultural Rights have so far avoided these terms in their list of issues and concluding observations.

As a universal human right held by all human beings, freedom of thought, conscience, religion, or belief does not presuppose a particular religious world-view or belief. In short, it protects believers rather than beliefs. Although certainly dealing with the full range of religious or belief issues, it does so in a deliberately ‘indirect’ manner by always taking the various and possibly conflicting self-understandings of human beings as their systematic starting point. In this sense, it seems more appropriate to use the neutral language of ‘holidays’ which is less likely to cause misunderstandings.

2.  Negative Freedom

The question may also arise whether there is a right not to celebrate holidays, i.e. the negative freedom not to be forced to participate in certain public ceremonies against one’s will and conviction. In 1959, the Sub-Commission’s Special Rapporteur Krishnaswami had approached this issue from a non-discrimination angle in his Rule 14, which provides that ‘[i]n a country where exemptions from participation in certain or all public ceremonies are granted to individuals who object to such participation on the ground that it is contrary to a prescription of their religion or belief, such exemptions should be granted in such a manner that no adverse distinction based upon religion or belief may result.’39

In 1996, in his country report on Greece, the Commission’s Special Rapporteur Amor referred to allegations that ‘Jehovah’s Witness children who refuse to take part in events contrary to their religious beliefs, including national holidays and public parades organized in the schools, have been punished and even expelled’.40 Special Rapporteur Amor seemed to consider this to be a direct violation of the child’s and the parents’ religious freedom, whereas the majority of the European Court of Human Rights in the related cases Valsamis v Greece and Efstratiou v Greece subsequently held that ‘the obligation to take part in the school parade was not such as to offend her parents’ religious convictions’ and ‘did not amount to an interference with her right to freedom of religion either’.41 At the same time, the European Court of Human Rights unanimously held that the applicants did not have an effective remedy before a national authority in order to raise the complaints they later submitted at Strasbourg and that there has consequently been a breach of article 13 of the ECHR taken together with its article 9 on freedom of religion or belief and with article 2 of Protocol No. 1 on the right to education. Interestingly, the judges Mr Thór Vilhjálmsson and Mr Jambrek in their joint dissenting opinions explained that they found a violation of article 9 itself, as the applicant had ‘stated that the parade she did not participate in had a character and symbolism that were clearly contrary to her neutralist, pacifist, and thus religious, beliefs’, which in their opinion the Court would have to accept.42

The dissenting opinions expressed by the Strasbourg judges and Special Rapporteur Amor’s approach support the existence of a right to the negative freedom not to manifest, by gestures of support, any convictions or opinions contrary to one’s own. This right was (p. 174) also reaffirmed by Special Rapporteur Bielefeldt in his country report on Cyprus, where he stressed that ‘freedom of religion or belief also includes the “negative” right not to be pressured, especially by the State or in State institutions, to participate in religious practices’, further explaining that ‘the purpose of the “negative” side of freedom of religion or belief is to make sure that no one is exposed to any pressure, especially by the State, to confess or practice a religion or belief against one’s own convictions.’43 While the parents or legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief, children themselves also enjoy in their own right the freedom of religion or belief, thus their views should be given due weight in accordance with their age and maturity, in line with article 12(1) of the CRC.44

Although the mere societal confrontation with other persons’ religious practices does not in itself amount to a violation of one’s negative freedom of religion or belief, the significance of religious holidays in public life can lead to situations that may even reach the threshold of coercion. States have a responsibility to provide appropriate safeguards against such risks. They should pay specific attention concerning institutions which expose persons to increased dangers of pressure exercised by superiors or peers, such as in the context of the military, police forces, or compulsory school education.

3.  Preventing the Abuse of Privileges

As some domestic laws provide for additional paid holidays for believers of certain religious communities, the question has arisen how abuses of such special rights and privileges, for example through recurrent ‘religious forum shopping’, could be prevented.45 In her country report on the former Yugoslav Republic of Macedonia, Special Rapporteur Jahangir referred to a case where an individual—Vasko Kosteski—had been fined for his absence from work at a public utility company on two days, which were public holidays only for the citizens of the Muslim faith.46 The Bitola Municipal Court held that the applicant was a self-proclaimed Muslim in order to justify his unjustified absence from work, noting that it transpired from his employment contract and insurance that he had been registered as Macedonian without any mention of being a Muslim. The Bitola Appellate Court dismissed his appeal because it did not see any evidence that the applicant was truly of Muslim faith as he had been absent from work during the previous Christian religious holidays and had celebrated them. On the basis of a public hearing and three consultative discussions, the Constitutional Court held that the contents of the applicant’s ‘religious belief (even their form) objectively did not correspond to those of the Muslim faith (and its form) on several grounds (for example: a lack of knowledge of the basic most important tenets of the religion through which its essence is expressed…or of the way in which one “joins” the Muslim faith, etc.)’.47 The European Court of Human Rights also did not find a violation of freedom of religion or belief, stressing that ‘[w]hile the notion of the State sitting in judgment on the state of a citizen’s inner and (p. 175) personal beliefs is abhorrent and may smack unhappily of past infamous persecutions, the Court observes that this is a case where the applicant sought to enjoy a special right bestowed by Macedonian law which provided that Muslims could take holiday on particular days’.48 Since the applicant was not prepared to produce any evidence that could substantiate his claim to be a Muslim, the European Court of Human Rights concluded unanimously that there had been no violation of articles 9 and 14 of the ECHR.49 While the circumstances of this specific case arguably gave rise to doubts as to Mr Kosteski’s entitlement to the privilege of additional paid holidays for Muslim citizens in the former Yugoslav Republic of Macedonia, the reasoning of the domestic court judgments and the Government’s arguments50 also raise several concerns that are worth exploring in terms of their potential impact on the individual’s freedom of religion or belief, including the right to change one’s religion or belief:

  • •  Why should an ethnic Macedonian, even if his parents were Christians and if he had been absent from work during previous Christian holidays, not be allowed to change his or her religion? Mr Kosteski convincingly argued that his name had been given to him at birth and that beliefs could legitimately vary afterwards; furthermore, he claimed not having celebrated Orthodox holidays, but as businesses were closed on such days he could not go to work.51

  • •  Does every convert need to know the ‘basic most important tenets of the religion through which its essence is expressed’, as alluded to by the Constitutional Court? With regard to similar challenges to the genuineness of a religious conversion in the context of asylum claims, Special Rapporteur Jahangir questioned the practice of adjudicators asking ‘faith-testing questions with doubtful validity, for example when asylum-seekers were interrogated about the number of books in the Bible or how to prepare a turkey for Christmas’.52

  • •  Should the viewpoints of the representatives of the Christian and Islamic religions that there are objective criteria to determine whether a citizen holds Christian or Islamic religious beliefs be decisive for the legal assessment? In the context of recognition issues, Special Rapporteur Bielefeldt stressed that ‘the right holders are “all members of the human family” whose most diverse self-understandings in the area of religion or belief constitute the starting point for the conceptualization and implementation of freedom of religion or belief as a universal human right.’53

  • •  In order to prove one’s adherence to the Islamic religion, would it be necessary to publicly and regularly carry out acts such as the prayer five times a day, distributing charity, fasting during Ramadan and pilgrimage to Mecca? Again in his thematic report on recognition issues, Special Rapporteur Bielefeldt emphasized the possibly diverse ‘self-understanding of human beings—all of them—in the field of religion or belief’.54

  • •  Can the individual’s responses to census questions on religious affiliation cast doubt on a claimed conversion, and if yes, is changing one’s belief twice in a period of eight years (p. 176) to be considered excessive? Special Rapporteur Jahangir stressed that any indication of one’s religious affiliation should be undertaken on a voluntary basis and furthermore she sent an allegation letter to the United States of America concerning restrictions on the number of permitted changes of religious designation for inmates in the State of New York, inter alia referring to the right to practise freely one’s religion, including the right to change one’s religion or belief.55

In conclusion, while it may be legitimate to ask for some substantiation of an individual’s religious affiliation in order to prevent the abuse of privileges, any evaluation of the genuineness of the conversion should take into account the individual’s past and present circumstances on a case-by-case basis, and the domestic authorities should fully respect everyone’s right to conversion as a forum internum component within freedom of religion or belief, for example by removing any administrative obstacles.56

4.  Reasonable Accommodation

Days of rest and holidays often lead to situations where public authorities have to deal with questions of reasonable accommodation for members of religious or belief minorities and their possible implications for society at large. However, public authorities sometimes justify restrictive administrative practices by invoking narrow concepts of ‘public order’, possibly driven by fear that acts of accommodation would privilege minorities or open the floodgates to all sorts of unreasonable demands. Obstacles to the possibility of honouring important holidays often also exist in the private sector. Employers may show reluctance towards reasonable accommodation, because they lack necessary information or for fear of creating problematic precedents.

In this context, it is instructive to refer to pertinent standards adopted by the International Labour Organization (ILO) shortly after its creation in 1919. Article 2 of the 1921 ILO Weekly Rest (Industry) Convention (No. 14) provides for a weekly period of rest comprising at least twenty-four consecutive hours, which shall, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district. Article 6(4) of the 1957 ILO Weekly Rest (Commerce and Offices) Convention (No. 106) goes further by stating that the traditions and customs of religious minorities shall, as far as possible, be respected.

In 1959, the Sub-Commission’s Special Rapporteur Krishnaswami noted that ‘[i]n many areas special permission is granted to persons of certain faiths to observe a weekly day of rest different from that of the majority, but this is not always possible, since public convenience usually requires some standardization of working days. When occasional holidays other than the weekly day of rest are considered, the situation may be different. Public authorities are usually in a position to declare holidays for institutions under their control, such as public schools, government offices and defence establishments. But even here, in a multireligious society, the occasional holidays of all faiths when put together may reach a total which is prohibitive. This may not only preclude the granting of all religious holidays to members of all faiths, but may even lead to a reduction in the number of holidays granted to the members of each group, including the predominant one. However, public authorities must take care to mete out approximately equal treatment (p. 177) to all faiths. As a general rule the prescriptions of each religion or belief relating to holidays and days of rest should be taken into account, subject to the overriding consideration of the interest of society as a whole.’57

In his country report on the United States of America, the Commission’s Special Rapporteur Amor referred to Title VII of the Civil Rights Act of 1964, which requires an employer to make reasonable accommodation of an employee’s religious practices if it is possible to do so without imposing undue hardship on the conduct of business; however, he also noted its limited effect and the generally restrictive interpretations by the court in the matter of religion.58 In this context he recommended a strengthened legislation and expressed hope that the announced guidelines for the protection of freedom of religion in the federal workplace and the Religious Freedom in the Workplace Bill, which also provided for accommodation to religious obligations—including observance of the Sabbath—of employees in the private sector, would contribute to that end.59 In his study on ‘Racial discrimination, religious intolerance and education’, Special Rapporteur Amor asked whether pupils not belonging to the majority religious group have the right to a holiday on those days celebrated by their religion; while admitting that ‘the organization of differentiated rest days poses serious problems, particularly when there is a great religious diversity in one and the same school’, he stressed that ‘an answer must be found that is compatible with respect for human rights and takes account of the particularities of pupils from minority groups.’60 Special Rapporteur Bielefeldt highlighted the hidden forms of discrimination facing members of religious minorities, for instance with regard to public holidays and labour regulations: ‘It may be the case that large parts of the population are not even aware of the possibly adverse implications that prima facie neutral rules may have on the rights of persons belonging to religious minorities. To prevent or rectify discriminatory consequences, States should generally consult with representatives of religious minorities before enacting legislation that may infringe on their religious or belief-related convictions and practices, and they should develop and promote policies of “reasonable accommodation” for individual members of minorities to enable them to live in conformity with their convictions.’61 In his thematic report on tackling religious intolerance and discrimination in the workplace, Special Rapporteur Bielefeldt also noted that ‘[p]ublic and private employers have successfully negotiated pragmatic ways of accommodating diverse religious holidays, for instance, by permitting employees to use parts of their annual vacation for this purpose.’62 In the context of positive measures to facilitate the development of religious minorities and their members, including accommodation of religious festivals and ceremonies, he also referred to the added value of article 27 of the ICCPR and article 4(2) of the 1992 Minorities Declaration, arguing that ‘[w]ithout such additional support measures the prospects of the (p. 178) long-term survival of some religious communities may be in serious peril, which, at the same time, would also amount to grave infringements of freedom of religion or belief of their individual members.’63

The Human Rights Committee, in its general comment no. 23 on the rights of minorities, added that State parties are under an obligation to ensure that the existence and the exercise of the right under article 27 of the ICCPR are protected against their denial or violation, hence positive measures of protection are ‘required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party’.64 Furthermore, the Human Rights Committee emphasized that ‘positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to […] practise their religion, in community with the other members of the group’ and while such positive measures should be non-discriminatory, ‘as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.’65

The European Commission of Human Rights dealt with three applications related to holidays and days of rest. However, in the absence of a focus on reasonable accommodation it considered these three applications as manifestly ill-founded and therefore declared them inadmissible. In the case of X v the United Kingdom, which concerned a devout Muslim who complained that he had been forced to resign from his post as a full-time teacher because he was refused permission to attend a mosque for congressional prayer on those Fridays which are school days, the European Commission of Human Rights held that the authorities did not disregard his freedom of religion by refusing a re-arrangement of the school timetable so that he might practise his religion, if he had previously accepted his employment without making any reservations in this respect. It also observed in respect of the general question of religious and public holidays that ‘in most countries, only the religious holidays of the majority of the population are celebrated as public holidays. Thus Protestant holidays are not always public holidays in Catholic countries and vice versa.’66 In the case of Konttinen v Finland, the applicant, who worked for the State Railways and subsequently joined The Seventh-day Adventist Church in Finland, absented himself from work on six occasions before the end of his Friday evening shift in order to keep the Sabbath in accordance with his religious convictions and was consequently dismissed. The European Commission of Human Rights found that he had not been ‘dismissed because of his religious convictions but for having refused to respect his working hours’ and added that ‘having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post’, which was considered ‘as the ultimate guarantee of his right to freedom of religion’.67 In the case of Stedman v the United Kingdom, a Christian woman was dismissed from her employment as an assistant manager in a branch of a travel agency after she had refused to sign an amended (p. 179) contract which included Sunday as a normal working day on a rota basis. The European Commission of Human Rights again noted that ‘the applicant was dismissed for failing to agree certain hours rather than her religious belief as such and was free to resign and did in effect resign from her employment’ and that there was no appearance of any discriminatory treatment of the applicant in comparison to employees of any other religious conviction.68 In sum, the European Commission of Human Rights treated applications relating to restrictions placed by employers on the ability of employees to observe days of rest in a rather restrictive manner, ultimately referring to the employees’ possibility to resign, which would presumably guarantee the manifestation of their religion or belief.

Similarly, the majority of the European Court of Human Rights was not convinced in the case of Francesco Sessa v Italy that the refusal by the judicial authority to adjourn a hearing listed on the date of a Jewish holiday (Yom Kippur) amounted to a restriction of a Jewish lawyer’s right to freely manifest his faith, inter alia because he could have arranged to be replaced at the hearing in order to comply with his professional obligations.69 However, in their joint dissenting opinion, the judges Ms Tulkens, Mr Popovic, and Ms Keller stressed that in light of the proportionality requirement the authorities must opt for the measure that is least restrictive of rights and freedoms, including by seeking a reasonable accommodation; in their view granting the applicant’s request for adjournment of the hearing would not have compromised the proper administration of justice (‘public-service disturbance test’) and any administrative inconvenience seemed ‘to be minimal and should perhaps be seen as the small price to be paid in order to ensure respect for freedom of religion in a multicultural society’.70 Against this background, it remains to be seen how the future jurisprudence of the European Court of Human Rights evolves, particularly with regard to reasonable accommodation cases in the context of religious holidays.

Against the still widespread misunderstanding that reasonable accommodation allegedly amounts to privileging minorities at the expense of equal treatment of all, it cannot be emphasized enough that—in the context of human rights—equality always means a diversity-friendly ‘complex equality’ rather than sameness or uniformity. Instead of diluting the principle of equality, reasonable accommodation contributes to a more complex—and thus more appropriate—conceptualization and a more effective implementation of equality based on equal respect and concern for all human beings with their diverse biographies, convictions, identities, and needs. In the area of holidays (as in other areas), measures of reasonable accommodation do not privilege certain groups of people but aim at facilitating a diverse society to the benefit of all.(p. 180)

Footnotes:

1  See e.g. First Book of Maccabees, chapter 2, verses 32–39.

2  E/CN.4/85, pp 78–9.

3  Cornelis D. de Jong, The Freedom of Thought, Conscience and Religion or Belief in the United Nations (1946–1992) (Intersentia Hart 2000) 270.

4  E/CN.4/Sub.2/200/Rev.1, p 64.

5  E/CN.4/873, para 142.

6  E/CN.4/1145, para 36.

7  Ibid., Annex II, p 3.

8  E/CN.4/L.1560/Add.16, paras 81–84. The draft declaration, as reproduced in the annex of E/CN.4/L.1560/Add.16, also adds the word ‘one’s’ before ‘religion or belief’, which emphasizes the necessary link between the individual and the precepts (see also the French version: ‘conformément aux préceptes de sa religion ou de sa conviction’).

9  CCPR/C/45/CRP.2, para 4.

10  CCPR/11, p 346.

11  Compare CCPR/C/SR.1166, para 26 in the original French version with CCPR/C/48/CRP.2/Rev.1, para 4 and CCPR/C/21/Rev.1/Add.4, para 4.

12  CCPR/11, p 339.

13  Compare CCPR/C/48/CRP.2/Rev.1, para 4 in the Russian version with CCPR/C/21/Rev.1/Add.4, para 4.

14  E/CN.4/Sub.2/200/Rev.1, p 35.

15  E/CN.4/1987/35, para 57. See also A/HRC/6/5, para 15 (which refers to ‘spiritual connotations’).

16  E/CN.4/1995/91, para 52.

17  A/HRC/22/67, p 68 (case CHN 8/2012).

18  E/CN.4/2005/61/Add.1, para 132.

19  A/HRC/19/60, para 49.

20  E/CN.4/1990/46, para 53. In 1991, Special Rapporteur d’Almeida Ribeiro followed up with an allegation letter to Iraq, stating that ‘[t]raditional Shia rituals concerning the Iman Hussein are said to have been completely prohibited, both in private and in public, as is also the case with other public manifestations and processions associated with Shia religious holidays, the majority of which are allegedly not officially recognized’ (E/CN.4/1992/52, para 55; no reply received). Please note typographical error of ‘Iman’ instead of ‘Imam’ is in the original.

21  E/CN.4/1990/46, para 85.

22  E/CN.4/1995/91/Add.1, para 47. In 1998, the Government of Sri Lanka also ‘made particular mention of holidays that coincided with the main religious festivals, Muslims’ ability to obtain special leave to participate in Friday prayers […]’ (E/CN.4/1999/58, para 98).

23  E/CN.4/1991/56, para 23.

24  E/CN.4/1992/52, para 82. In 1992, Special Rapporteur d’Almeida Ribeiro followed up with a communication to Sudan, alleging that ‘Christians are reportedly given jobs which require them to work on religious holidays and Sundays and the permission to attend Sunday church services which used to be issued to Christians has been abolished’. ( E/CN.4/1993/62, para 57). Sudan refuted these allegations by responding as follows: ‘Come to the government offices on a Sunday morning and you would find not one single Christian in his office’ ( ibid., para 59).

25  E/CN.4/1996/95/Add.1, paras 48–49. Special Rapporteur Amor, however, noted that ‘[i]n government service, minorities are reported to be under-represented at all levels and especially in the senior ranks, with few exceptions’ ( ibid., para 55).

26  E/CN.4/1992/52, para 89. In 1990, the Government of Israel had indicated that ‘[s]ince the beginning of the intifada, the Israeli police, responsible for public order in the State of Israel, has not restricted or prevented the access of worshippers to the Al-Aqsa Mosque on Fridays or on Islamic holidays’ (E/CN.4/1991/56, para 73). However, Special Rapporteur Jahangir in her mission report referred to difficulties encountered by many Muslims, especially on some Fridays during the religious holiday of Ramadan in 2007, in getting access to al-Haram al-Sharif/Temple Mount in Jerusalem (A/HRC/10/8/Add.2, paras 27–28).

27  E/CN.4/2006/5/Add.2, para 41. Special Rapporteur Jahangir, however, referred to grave outbreaks of intercommunal violence and noted ‘that the mere existence of these tensions has created a climate of unease and, for a number of people, a real fear of openly manifesting their religion, for example by […] participating in public religious events’ ( ibid., para 42).

28  E/CN.4/2002/73/Add.1, paras 29–34 and 125. However, Special Rapporteur Amor also cited the concerns raised by representatives of Protestant Churches in Argentina with regard to the ‘[l]imited granting of official recognition for Jewish and Muslim holidays and non-recognition for other communities, in contrast to Catholic holidays’ ( ibid., para 80).

29  A/55/280/Add.2, paras 35, 67, and 92 (distinguishing between Government holidays in general and optional holidays that are only applicable to certain religious groups).

30  E/CN.4/1998/6/Add.1, para 47; and A/HRC/6/5, para 15.

31  E/CN.4/1998/6/Add.2, para 43.

32  E/CN.4/1992/52, para 173.

33  A/HRC/25/58/Add.1, paras 28–29.

34  E/CN.4/SR.711, p 7, and E/CN.4/SR.713, p 7.

35  E/CN.4/SR.712, pp 5–6.

36  E/CN.4/1992/52, para 89 (reply from Israel); E/CN.4/1999/58/Add.1, paras 44 and 68 (country report on the United States of America); E/CN.4/1999/58/Add.2, paras 86 (country report on Viet Nam); E/CN.4/2001/63, para 81 (communication to Italy); E/CN.4/2002/73/Add.1, paras 30–31 and 88 (country report on Argentina); E/CN.4/2006/5/Add.1, paras 162 and 184 (communications to Indonesia and the Islamic Republic of Iran); A/HRC/22/51, para 65 (thematic report on minorities).

37  CCPR/C/UZB/99/1, para 255; CCPR/C/POL/2004/5, para 327; CCPR/C/CAN/2004/5, para 292; CCPR/C/PAN/Q/3/Add.1, p 36; CCPR/C/KHM/2, para 160.

38  E/C.12/2013/SR.2, para 13.

39  E/CN.4/Sub.2/200/Rev.1, pp 44 and 65.

40  A/51/542/Add.1, para 94.

41  Valsamis v Greece App no 21787/93 (ECtHR, judgment of 18 December 1996), para 37; Efstratiou v Greece App no 24095/94 (ECtHR, judgment of 18 December 1996), para 38.

42  Valsamis v Greece and Efstratiou v Greece, annexes.

43  A/HRC/19/60/Add.1, para 31.

44  A/HRC/7/10/Add.3, para 70.

45  See Michael Wiener, ‘Interpretation of the 1981 Declaration through the Mandate Practice of the United Nations Special Rapporteur on Freedom of Religion or Belief’ in Malcolm D. Evans, Peter Petkoff, and Julian Rivers (eds), Changing Nature of Religious Rights under International Law (OUP 2015) 74.

47  See Kosteski v the Former Yugoslav Republic of Macedonia, para 23.

48  Ibid., para 39.

49  Ibid., paras 39–40 and 46–47; see also A/HRC/13/40/Add.2, para 16.

50  See Kosteski v the Former Yugoslav Republic of Macedonia, paras 19–20, 23, and 36.

51  Ibid., para 33.

52  A/HRC/7/10/Add.3, para 56.

53  A/HRC/19/60, para 34.

54  Ibid., para 31.

55  See A/63/161, para 73; A/HRC/16/53/Add.1, paras 408–413.

56  See A/HRC/6/5, para 31; A/62/280, para 63; A/67/303, para 21.

57  E/CN.4/Sub.2/200/Rev.1, pp 35–6.

58  E/CN.4/1999/58/Add.1, paras 24 and 72.

59  Ibid., paras 44 and 72. For a subsequent explanation of the concept of ‘reasonable religious accommodation’ see the reply of the Government of the United States of America, dated 25 March 2003, as summarized in E/CN.4/2005/61/Add.1, para 313; see also the explanations below in chapter 2.1. on religious discrimination.

60  A/CONF.189/PC.2/22, Annex, para 84. The link in endnote 95 to the website of the Ministry of Education of Quebec should now read as follows: Ministry of Education of Quebec, ‘Communautés Culturelles’ <http://www.mels.gouv.qc.ca/dscc/forma8a.htm> accessed 22 September 2015.

61  A/HRC/22/51, para 29.

62  A/69/261, para 52. See also below chapter 2.1. (under IV.5. on reasonable accommodation).

63  A/HRC/22/51, para 25.

64  HRI/GEN/1/Rev.9, p 209, para 6.1.

65  Ibid., para 6.2; and A/CONF.189/PC.2/14, para 31.

66  X v the United Kingdom App no 8160/78 (European Commission of Human Rights, decision of 12 March 1981).

67  Konttinen v Finland App no 24949/94 (European Commission of Human Rights, decision of 3 December 1996).

68  Stedman v the United Kingdom App no 29107/95 (European Commission of Human Rights, decision of 9 April 1997).

69  Francesco Sessa v Italy App no 28790/08 (ECtHR, judgment of 3 April 2012), para 37.

70  Ibid., joint dissenting opinion of judges Tulkens, Popovic, and Keller, paras 9–13.