Koninklijke Brill NV, Leiden, 2007DOI: 10.1163/187103107X218911Religion and Human Rights 2 (2007) 317 www.brill.nl/rhrsReligionHumanRights Te Mandate of the Special Rapporteur on Freedom of Religion or BeliefInstitutional, Procedural and Substantive Legal IssuesMichael Wiener*Associate Human Rights O cer, UN O ce of the High Commissioner for Human Rights Abstract Te Role of the UN Special Rapporteur on Freedom of Religion or Belief has already been outlined by Carolyn Evans in the rst issue of Religion and Human Rights on pages I:7596. In the meantime, a doc-toralthesisonthemandateoftheSpecialRapporteurwassubmittedbyMichaelWienertotheLaw FacultyatTrierUniversityinGermany.TefollowingarticleistheannotatedEnglishsummaryof this350pagesstrongthesiswhichhasrecentlybeenpublishedwiththetitleDasMandatdesUN-Sonderberichterstatters ber Religions- oder WeltanschauungsfreiheitInstitutionelle, prozedurale und mate-rielleRechtsfragen(PeterLang,FrankfurtamMain,Berlin,Bern,Bruxelles,New York,Oxford, Wien, 2007). It explores various legal issues of the mandate in terms of institutional, procedural and substantive questions that have arisen in the Special Rapporteurs mandate practice from 1986 to 2006. Keywords UN Human Rights Council; Special Rapporteurs; privileges and immunities of mandate holders; letters of allegation and country visits; customary international law; subsidiary means for the determination of rules of law I.Institutional Issues A.Development of the Mandate Te thematic mandate of the Special Rapporteur on religious intolerance was created by the UN Commission on Human Rights in its resolution 1986/20 on 10March1986andsubsequentlythemandatehasbeengraduallyexpanded. Accordingtotheinitialresolution,theSpecialRapporteurwasappointedfor oneyearinordertoexamineincidentsandgovernmentalactionsinallparts * Dr.MichaelWienerLL.M.(London),Ass.iur.,Dr.iur.(Trier)hasbeenworkingintheSpecial Procedures Branch of the Oce of the High Commissioner for Human Rights (OHCHR) in Geneva since November 2006. Te research of his doctoral thesis on the mandate of the UN Special Rapporteur on freedom of religion or belief was supervised by Prof. Dr. Gerhard Robbers at Trier University in Ger-many. Te views expressed in the present English summary of this thesis (October 2006) are those of the author and do not necessarily reect the views of the United Nations. RHRS 2,1-2_f2_3-17.indd 3 9/21/07 2:08:37 PM4M. Wiener / Religion and Human Rights 2 (2007) 317oftheworldandtorecommendremedialmeasuresagainstintoleranceand discrimination based on religion or belief. In carrying out his mandate the Spe-cialRapporteurwasrequestedtoseekcredibleandreliableinformationfrom Governments, as well as specialized agencies, intergovernmental organizations and non-governmental organizations, including communities of religion or belief .1 Duringtherstreportingstage(from1986to1987),theinitialmandate holder Mr. Angelo Vidal dAlmeida Ribeiro from Portugal managed to clear up the fundamental objections against the mandate which had been raised by some member states of the UN Commission on Human Rights. Having secured the continuationofthemandate,Mr.dAlmeidaRibeirointhesecondreporting stage (from 1988 to 1993) started reproducing his correspondence with the Gov-ernments, thus reporting on individual cases and naming the countries concerned. Tis approach had to be temporarily abandoned due to nancial constraints and duetotheintroductionofpagelimitsduringthethirdreportingstage(from 1994 to 1999), but the second mandate holder Mr. Abdelfattah Amor from Tuni-sia successfully introduced new working methods such as urgent appeals, in situ visits and interim reports to the UN General Assembly. In addition to the tradi-tional task of combating all forms of religious intolerance, Mr. Amor focussed on the promotion of the freedom of religion or belief and on prevention activities. Te gradual enlargement of the mandate through resolutions by the Commission on Human Rights and the General Assembly was manifested in the year 2000, whenthetitlewasrenamedasSpecialRapporteuronfreedomofreligionor belief .2Takingupthisdevelopmentduringthefourthreportingstage(from 2000to2003),Mr.Amorenrichedthemandatewithnewapproachessuchas drafting thematic studies and initiating an international consultative conference on School Education in Relation with Freedom of Religion and Belief, Tolerance and Non-Discrimination, which adopted the 2001 Madrid nal document.3 Te current mandate holder, Ms. Asma Jahangir from Pakistan, took this acquis as the starting point during the fth reporting stage (from 2004 to 2005), introducing adetailedreproductionofthecorrespondencewiththeGovernmentstogether with legal observations in a separate addendum to her annual reports to the Com-mission on Human Rights. Te current reporting stage (since 2006) is marked by 1 CommissiononHumanRightsresolution1986/20of10March1986,operativepara.4.For adetaileddiscussionofthewordingofthisresolutionseeMichaelWiener,DasMandatdesUN-Sonderberichterstatters ber Religions- oder WeltanschauungsfreiheitInstitutionelle, prozedurale und mate-rielleRechtsfragen(PeterLang,FrankfurtamMain,Berlin,Bern,Bruxelles,New York,Oxford, Wien, 2007), pp. 2028. 2 SeeCommissiononHumanRightsresolution2000/33of20April2000,operativepara.11, approved by Economic and Social Council decision 2000/261 of 28 July 2000; General Assembly resolu-tion 55/97 of 4 December 2000, operative para. 11. 3 Te Madrid Final Document is published in the Appendix of the Report submitted by Mr. Abdelfattah Amor, Special Rapporteur on freedom of religion or belief, in accordance with Commission on Human Rights resolution 2000/33 (UN Doc. E/CN.4/2002/73), Appendix. RHRS 2,1-2_f2_3-17.indd 4 9/21/07 2:08:37 PMM. Wiener / Religion and Human Rights 2 (2007) 3175the transition from the Commission on Human Rights to the new UN Human RightsCouncil,whichhasbeenestablishedon15March2006asasubsidiary organoftheGeneralAssembly.4Itremainstobeseeninwhichdirectionthe mandateoftheSpecialRapporteuronfreedomofreligionorbeliefwillevolve withinthisnewinstitutionalframework,especiallybecausetheHumanRights Council is requested to review and, where necessary, to improve and to rationalize all mandates by June 2007. Tisdevelopmentfrom1986to2006illustrateshowmuchthemandate depends on the commitment and the establishing of priorities by the individual mandate holder. Each of the Special Rapporteurs dAlmeida Ribeiro, Amor and Jahangirhavelefthisorherimprintonthemandate,graduallyenlargingitin cooperation with the Commission on Human Rights, the Economic and Social Council (ECOSOC) and the General Assembly. Te reporting practice has shown that Special Rapporteurs can play a role as eyes and ears5 of the Commission on Human Rights, and that they can also function as its brain and mouth within the limits of their mandate. B.Legal Status of Mandate Holders Te selection of mandate holders is traditionally left to the chairman of the Com-mission on Human Rights, who is only supposed to consult within the Bureau before appointing a Special Rapporteur. Tis non-transparent and politicized selec-tionprocesshasbeencriticizedanditistobereformedbytheHumanRights Council. Initially, there was no time limit for mandates but in 1999 any individu-als tenure in a given mandate, whether thematic or country-specic, was restricted to six years.6 At the renewal of the mandate of the Special Rapporteur on freedom of religion or belief in 2001, however, Mr. Amor fell under a transitional provi-sion and consequently he could stay in his mandate until 2004 for a total period ofelevenyears.Teoptiontodiscontinueormergecertainspecialprocedures mightariseintheframeworkofthemandatereviewprocessin2007bythe Human Rights Council. Mandateholdersmaybesusceptibletolegalrisksintermsofnationalcivil actions (e.g. defamation law suits) or penal prosecution (e.g. charges of blasphemy or proselytism) as well as personal attacks. In respect of words spoken and acts done by them in the course of the performance of their mission, these experts are 4 SeeGeneralAssemblyresolution60/251of15March2006andEconomicandSocialCouncil resolution 2006/2 of 22 March 2006. 5 For examples of this description as eyes and ears see the summary records of the Commission on Human Rights (UN Doc. E/CN.4/1994/SR.33, para. 26 and UN Doc. E/CN.4/1994/SR.59, para. 45) and of the Economic and Social Council (UN Doc. E/1995/SR.51, p. 12). 6 See Commission on Human Rights Chairpersons Statement of 29 April 1999 (UN Doc. E/1999/23, para. 552). RHRS 2,1-2_f2_3-17.indd 5 9/21/07 2:08:37 PM6M. Wiener / Religion and Human Rights 2 (2007) 317accorded immunity from legal process of any kind which continues to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations according to Article VI Section 22 (b) of the Convention onthePrivilegesandImmunitiesoftheUnitedNations.7However,underthe conditions of its Article VI Section 23, the Secretary-General shall have the right and the duty to waive the immunity of any expert. Even if the Secretary-General has conrmed that the expert acted within the scope of his or her functions and has consequently informed the government of the member State in question, the mandateholdersimmunitydoesnotseemtobeadequatelyprotectedbecause several national courts have not accepted the Secretary-Generals nding as bind-ing or because they ordered a mandate holder to bear the legal expenses. Although Mr. Dato Param Cumaraswamy, the Special Rapporteur on the independence of judges and lawyers from 1994 to 2003, was indemnied by the United Nations for any costs, expenses or damages arising out of the proceedings in Malaysia8 it does not seem to be a satisfying solution that the United Nations should need to submit a claim for reimbursement to the Government. Te two pertinent advisory opinions, delivered by the International Court of Justice in 1989 (Mazilu case9) and 1999 (Cumaraswamy case10), have elucidated certain aspects and notions of the Convention on the Privileges and Immunities of the United Nations, but carrying out a mandate still lacks sucient legal secu-rity. A potential lacuna of the protection is triggered by the ICJ statement that national courts may set asidealbeit only for the most compelling reasons11the nding by the Secretary-General concerning the experts immunity. Te UN Secretariats reasoning of an exclusive authority of the Secretary-General in mat-ters of assertion and waiver of immunity would have oered a higher standard of protection for the Special Rapporteurs, leaving it up to the Government to refer the dierence to the ICJ according to Article VIII Section 30 of the 1946 Con-vention. Furthermore, the two advisory opinions of the ICJ have not developed transparent criteria, which could be used by national or international courts in order to scrutinize the Secretary-Generals nding or to evaluate themselves the adherence to the limits of the mandate. In this regard the set of criteria used in 7 Convention on the Privileges and Immunities of the United Nations, adopted on 13 February 1946. 8 See the letter dated 22 May 2003 from the Secretary-General to the President of the Economic and SocialCouncil(UNDoc.E/2003/78):TeUnitedNationsthereforemaintains,inordertofullits obligations to hold Dato Param Cumaraswamy nancially harmless, that the Government of Malaysia should reimburse the Organization in the amount of US$ 118,145.91 for the legal expenses it paid on behalf of Dato Param Cumaraswamy in connection with the four lawsuits. 9 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, 15 December 1989, International Court of Justice, Advisory Opinion, I.C.J. Reports 1989, p. 177. 10 Dierence relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rights, 29 April 1999, International Court of Justice, Advisory Opinion, I.C.J. Reports 1999, p. 62. 11 Ibid., p. 87 (para. 61). RHRS 2,1-2_f2_3-17.indd 6 9/21/07 2:08:38 PMM. Wiener / Religion and Human Rights 2 (2007) 3177theUS-AmericanprecedentcaseofGerritsenv.EscobarYCordova12mightbe transferred to the interpretation of the Convention on the Privileges and Immu-nities of the United Nations. Several UN regulations which have been passed since the ICJ advisory opin-ion in 1999 serve to clarify the limits of the mandates and thus they may partly prevent the emergence of disputes.13 At the same time, they restrict the carrying outofamandateandconsequentlyanyguidelinesshouldonlybeintroduced to the extent that they are imperative. It should not be overlooked that the Spe-cialRapporteursmonitoringrolealsoinvolvesaskingawkwardquestionsand denouncinghumanrightsviolationsincertaincountries.Ofcourseitisan important factor for the discussion that the criticized Governments, enterprises, religious communities or individuals may defend themselves against allegations. However, this should not lead to an intimidation of the mandate holders or to their self-censorship and ultimately to a dilution of the special procedures con-trolling function. Special procedures were established as subsidiary organs of the Commission on Human Rights according to article 7 section 2 UN Charter and thus they used to belinkedtotheprincipleorganECOSOC.AstheCommissiononHuman Rights was replaced in June 2006 with the Human Rights Council, the latter is nowasubsidiaryorganoftheGeneralAssembly.Althoughspecialprocedures holders are appointed as independent experts in their individual capacity it has been the practice of the Commission on Human Rights to be able to instruct the mandate holders and to correct their reports. In view of this potential inuence it is possible to attribute the reports and the acts done by them in the course of their mandate to the United Nations. Apart from these internal instructions from the Commission on Human Rights, however, mandate holders are not subject to any external orders, neither from their home Governments nor from any other UN member state. Considering the universal nature of their mandates, the thematic specialproceduresareallowedandevenobligedtocarryoutmandaterelated investigations also in their home countries if there are pertinent allegations. Te mandate holders risk of being sued or prosecuted appears to be increased in his orhercountryoforiginorplaceofresidence.Duringtheirmandateandeven after its termination they are accorded immunity from legal process of any kind in respect of words spoken or written and acts done by them in the course of the performance of their mission. As Special Rapporteurs are appointed in their per-sonal capacity, a potential change of nationality does not inuence their position as mandate holders. 12 Gerritsen v. Escobar Y Cordova, 721 F.Supp. 253259 (C.D.Cal. 1988). 13 Regulations Governing the Status, Basic Rights and Duties of Ocials other than Secretariat Ocials, and Experts on Mission, adopted by General Assembly resolution 56/280 of 27 March 2002 (see also the commentary in UN Doc. ST/SGB/2002/9). RHRS 2,1-2_f2_3-17.indd 7 9/21/07 2:08:38 PM8M. Wiener / Religion and Human Rights 2 (2007) 317 II.Procedural Issues Te resolutions by the Commission on Human Rights, ECOSOC and the Gen-eral Assembly have only occasionally instructed the Special Rapporteur on free-domofreligionorbeliefwithregardtoproceduralmatters.Consequently,the three mandate holders dAlmeida Ribeiro, Amor and Jahangir have been able to develop throughout the past twenty years a proper set of activities for their man-date. As a result, a specic procedural framework has emerged within the scope of their letters of allegation, urgent appeals, in situ visits and thematic studies. A.Letters of Allegation/Urgent Appeals Te essential fact nding instrument of the Special Rapporteur consists in letters ofallegationrespectivelyurgentappeals.Havingevaluatedthereceivedallega-tions and further information, the mandate holder may decide to send either a letter of allegation or an urgent appeal concerning pressing issues to the Govern-mentconcerned.SincetheassumptionofmandateholderAmorin1993,itis standard practice that the non-exhaustion of domestic remedies does not prevent the Special Rapporteur from dealing with a case. Furthermore, the Special Rap-porteur may send letters of allegation or urgent appeals even when the matter has alreadybeensubmittedtoanotherprocedureofinternationalinvestigationor settlement.Contrarytotheenumerationoflegitimatesourcesforthecarrying out of the mandate in the initial resolution of the Commission on Human Rights, theSpecialRapporteurshavealsoconsideredinformationfromindividualper-sons who are not aliated with a non-governmental organization. Subsequently, this practice of the mandate since 1989 has been implicitly approved by the Com-missiononHumanRights.Withregardtotheevaluationofallegationsitis remarkablethatthecommunityofstatesacceptstheuniversalmandateofthe Special Rapporteur ratione loci and ratione temporis even beyond the formal crite-rion of UN membership.14 Giventhefactthatcomplainantsneitherneedtoprovetheirowncurrent injurynorthereasonsforactinginthenameoftheallegedvictim,itmaybe questionable in individual cases whether the alleged victim would actually sup-port the complaint. As far as that goes it seems advisable to develop and docu-mentmandaterulesinordertopreventanabuseofsuchanactiopopularis, especially as the names of alleged victimsbut not those of the complainantsare disclosed to the Governments and published in the reports since 1989. Occa-sionally,thethreemandateholdershavealsopublishedthenamesofalleged perpetrators without giving the concerned individuals or their Governments an 14 Cf. the replies from the Governments of the Republic of Korea, Switzerland and Nauru at a time whentheywerenotyetUNmemberstates(seeUNDoc.E/CN.4/1989/44,paras.5960;UNDoc. E/CN.4/1993/62, paras. 6263; UN Doc. A/50/440, para. 37). RHRS 2,1-2_f2_3-17.indd 8 9/21/07 2:08:38 PMM. Wiener / Religion and Human Rights 2 (2007) 3179opportunity to comment on the allegations. Although private persons tradition-allyonlyhavealimitedstatusunderpublicinternationallaw,theindividuals directly concerned shouldaccording to the principle audiatur et altera parsget a hearing at least on the national level when the Government drafts its response andsubsequentlytheSpecialRapporteurshouldtakethisintoaccountinthe published report. While Special Rapporteur dAlmeida Ribeiro did not x appropriate deadlines for state responses, his mandate successor Amor established in the annual report 1994 a period of two months for letters of allegations and a period of two weeks for urgent appeals. However, the response rate of 38.8 per cent concerning state replies in time and a total response rate of 61.6 per cent during the period from 1988 to 2004 does not reect a satisfactory level of cooperation from a number of Governments. Initially, there was also a limited willingness to react on urgent appealsbuttheresponseraterosegraduallyduringthefollowingyears.Since assuming the mandate in 2004, Special Rapporteur Jahangir has been sending the majority of her urgent appeals jointly with other special procedures holders which hasleadtoaslightlyimprovedresponserate.TwentyGovernments,however, have never reacted to letters of allegations from the Special Rapporteur on free-dom of religion or belief since the beginning of the mandate in 1986. Te most eective leverage, which has been approved by the Commission on Human Rights since 1988, consists in publishing the allegations in the annual reports, even when the Government concerned has not reacted on the Special Rapporteurs letter. B.Country Visits Given the limited fact nding opportunities in the correspondence with the Gov-ernments, the mandate holders have welcomed the suggestion from the Commis-sion on Human Rights to undertake in situ visits and they have developed this approach especially since the mid-1990s. Terms of reference for fact-nding mis-sions by special rapporteurs/representatives of the Commission on Human Rights were adopted during their annual meeting in 1997, thus dening minimum stan-dards for the mandate holders and UN sta accompanying them.15 Tey insist that Governments guarantee these minimum standards for in situ visits which has repeatedlyledtoadenialoftherequiredinvitationfromtheGovernments.A simplication of this invitation procedure consists in issuing a so-called standing invitation to all thematic special procedures.16 From 1987 to May 2006 the man-date holders dAlmeida Ribeiro, Amor and Jahangir have undertaken a total of 22 in situ visits. Furthermore, Special Rapporteur Jahangir in 2006 compiled a joint 15 Terms of reference for fact-nding missions by special rapporteurs/representatives of the Commission on Human Rights (UN Doc. E/CN.4/1998/45, Appendix V). 16 A list of the 56 countries which have extended a standing invitation to thematic procedures as of July 2006 is available at , 30 October 2006. RHRS 2,1-2_f2_3-17.indd 9 9/21/07 2:08:38 PM10M. Wiener / Religion and Human Rights 2 (2007) 317report with four other special procedures holders on the situation in Guantnamo Bayeventhoughtheyhadnotvisitedthedetentionfacilities.17Consequently, mandate holders may apply additional pressure on Governments which either do notissueaninvitationatallorwhichdonotacceptthetermsofreferencefor fact-nding missions by Special Rapporteurs. C.Tematic Studies Te mandate holders Amor and Jahangir have drafted ve thematic studies, thus complementingthetraditionalreportstotheCommissiononHumanRights andtotheGeneralAssemblywithnormativeactivitiesofthemandate.Two ofthesethematicstudiesweredestinedforthepreparatorycommitteeofthe 2001WorldConferenceAgainstRacism,RacialDiscrimination,Xenophobia andRelatedIntoleranceinDurban.18AfurtherstudydealtwithFreedomof Religion or Belief and the Status of Women from the Viewpoint of Religion and Traditions.19 However, despite an explicit request in the 2004 resolution of the Commission on Human Rights, this study has so far not been translated from the French original version into the other ve ocial UN languages. Special rap-porteur Amor also initiated the 2001 International Consultative Conference on SchoolEducationinRelationwithFreedomofReligionandBelief, Tolerance and Non-Discrimination in Madrid which adopted a Final Document by con-sensus.AlthoughtheMadridFinalDocumentisnotlegallybindingperse,its potentialcanbeseenintheinvolvementofnon-governmentalorganizations and religious communities during the deliberations. Finally, Special Rapporteur Jahangir submitted a study on Incitement to racial and religious hatred and the promotion of tolerance upon the request of the Human Rights Council for its second session in September 2006.20 17 Situation of detainees at Guantnamo Bay, Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, LeandroDespouy;theSpecialRapporteurontortureandothercruel,inhumanordegradingtreatmentor punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt (UN Doc. E/CN.4/2006/120). 18 Racialdiscriminationandreligiousdiscrimination:identicationandmeasures,Studypreparedby Mr. Abdelfattah Amor, Special Rapporteur on religious intolerance (UN Doc. A/CONF.189/PC.1/7, Annex); Racial discrimination, religious intolerance and education, Study prepared by Mr. Abdelfattah Amor, Special Rapporteur on religious intolerance (UN Doc. A/CONF.189/PC.2/22, Annex). 19 Rapport soumis par M. Abdelfattah Amor, Rapporteur spcial, conformment la rsolution 2001/42 de la Commission des droits de lhomme, Additif: tude sur la libert de religion ou de conviction et la condition de la femme au regard de la religion et des traditions (UN Doc. E/CN.4/2002/73/Add.2). 20 Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the Special Rap-porteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Dine, further to Human Rights Council decision 1/107 on incitement to racial and religious hatred and the promotion of tolerance (UN Doc. A/HRC/2/3). RHRS 2,1-2_f2_3-17.indd 10 9/21/07 2:08:38 PMM. Wiener / Religion and Human Rights 2 (2007) 31711 III.Substantive Issues A.Legal Norms Governing the Mandate Te mandate practice has changed signicantly throughout the past twenty years in terms of the substantive legal norms taken as a basis by the Special Rappor-teurs. Te 1986 resolution of the Commission on Human Rights did not referunlike its rst draftto article 18 of the Universal Declaration of Human Rights (UDHR21) or to article 18 of the International Covenant on Civil and Political Rights(ICCPR22).Consequently,therstmandateholderdAlmeidaRibeiro took the provisions of the 1981 Declaration on the Elimination of All Forms of IntoleranceandofDiscriminationBasedonReligionorBelief(1981Declara-tion23) as his single point of reference. Step by step, the second mandate holder Amor carefully incorporated further legal normsespecially the pertinent article 18 UDHR, articles 4, 18 and 20 ICCPR and article 13 of the International Cove-nantonEconomic,SocialandCulturalRights(ICESC24)intothemandate. Te current Special Rapporteur Jahangir has enlarged this legal basis even further in referring to General Comments of the UN Human Rights Committee and to a number of Declarations and Guidelines. Te initial mandate practice of quot-ing provisions of the 1981 Declaration has continually declined and only recently the rights enumerated in article 6 of the 1981 Declaration have been resuscitated in Ms. Jahangirs 2006 framework for communications. Tis development has been implicitly approved by the Commission on Human Rights and the General Assembly and since the mid-1990s they have gradually referredthemandatetoarticle18UDHRandarticle18ICCPR.Meanwhile they also quote the 1993 Vienna Declaration and Programme of Action,25 the Millennium Declaration26 and the Durban Declaration27 in their resolutions. Te factthattheprovisionsofthe1981Declarationarenolongertheonlybench-markforthemandateissignicantbecausethe1981Declarationcontainsa 21 Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948. 22International Covenant on Civil and Political Rights, adopted and opened for signature, ratication and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966. 23 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Reli-gion or Belief, proclaimed by General Assembly resolution 36/55 of 25 November 1981. 24 International Covenant on Economic, Social and Cultural Rights, adopted and opened for signa-ture, ratication and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966. 25 ViennaDeclarationandProgrammeofAction,adoptedbytheWorldConferenceonHuman Rights in Vienna on 25 June 1993 (UN Doc. A/CONF.157/23). 26 United Nations Millenium Declaration, adopted by General Assembly resolution 55/2 of 8 Septem-ber 2000. 27 DurbanDeclaration,adoptedbytheWorldConferenceagainstRacism,RacialDiscrimination, Xenophobia and Related Intolerance in Durban on 8 September 2001 (UN Doc. A/CONF.189/12). RHRS 2,1-2_f2_3-17.indd 11 9/21/07 2:08:39 PM12M. Wiener / Religion and Human Rights 2 (2007) 317specicprohibitionofdiscriminationwhereasUDHRandICCPRencompass the broader concept of freedom of religion or belief. Te decision to rename the title of the mandate in 2000 into Special Rapporteur on freedom of religion or belief thus mirrors the evolution of the mandate, i.e. from the management of intol-erance to the role of an educator with a dialogue-oriented preventive approach. B.Customary International Law or Subsidiary Means for the Determination of Rules of Law? Asthepracticeofthemandateholdersisincreasinglycharacterizedbylegal convictionsitisappropriatetoexaminethehypothesisthatthesesubstantive statementsmightbecapableofcontributingtothedevelopmentofcustomary international law in shaping the contents of human rights. Te forming of cus-tomary international law requires a general practice (consuetudo) which is accepted as law (opinio iuris sive necessitatis). Concerning the determination of consuetudo and opinio iuris not only states but also other subjects of international law may be taken into consideration; however, international organizations can only partici-pate in forming customary law within the limits of the exercise of the functions entrustedtothem.ContrarytoBeateRudolf sviewinherdoctoralthesis28a directcontributionofSpecialRapporteurstothedevelopmentofcustomary international law is to be rejected. Te rm positions taken by Governments from dierent world regions give evidence that they explicitly do not share the convic-tion to be legally bound by the Special Rapporteurs statements or by the Com-missiononHumanRightsresolutions.Inaddition,theapproachesofthe mandateholdersdAlmeidaRibeiro,AmorandJahangirasmanifestedinthe practice from 1986 to 2006 also speak against their direct contribution to cus-tomary international law. Since they act as subsidiary organs of the Commission on Human Rightsrespectively now of the Human Rights Councilit is out of question that their acts were attributable to the state practice of their home coun-triesorpotentiallyrelevantasthepracticeofprivateindividuals.Furthermore, the attempt to involve the reports as practice of international organizations into formingcustomaryinternationalhumanrightsisalsoawed.AsGovernments arepotentiallyboundbytheseinternationalcustomaryrules,thestatepractice continuestoplayadecisiverole.Sincetherequiredopinioiurisisanopinion what the law isand not only what the law ought to be29it seems important 28 See Beate Rudolf, Die thematischen Berichterstatter und Arbeitsgruppen der UN-Menschenrechtskom-mission (Springer, Berlin, Heidelberg, New York, Barcelona, Hong Kong, London, Mailand, Paris, Singa-pur,Tokio,2000),pp.48-54and555-556.SeealsoherarticleonTeTematicRapporteursand WorkingGroupsoftheUnitedNationsCommissiononHumanRights(2000)4MaxPlanck Year-bookofUnitedNationsLawpp.297299,, 30 October 2006. 29 See J. S. Watson, Legal Teory, Ecacy and Validity in the Development of Human Rights Norms in International Law (1979) 3 University of Illinois Law Forum, p. 609. RHRS 2,1-2_f2_3-17.indd 12 9/21/07 2:08:39 PMM. Wiener / Religion and Human Rights 2 (2007) 31713to link the creation of custom to the addressee of the reports, i.e. the Governments. It would not be appropriate to regard a Special Rapporteurs legal statement as a concretization of customary international human rights in case the uniform state practice unambiguously conicted with this opinion. During the 25 years of the existence of special procedures, the Commission on Human Rights has only on one occasion formally censored a report30 and there are no ecient control mech-anismswithregardtoSpecialRapporteursstatements.Furthermore,itseems unrealistic to impose a duty on all member states and observer states of the Com-mission/CounciltopermanentlycheckandobjecttothereportsiftheGovern-mentswanttopreventtheSpecialRapporteursstatementsfromenteringthe arena of customary international law. Given these dogmatic and practical concerns it is argued that the reports do not contribute directly to the development or con-cretization of human rights under customary international law. On the other hand, the mandate holders reports may be taken as subsidiary means for the determination of rules of law. Te published reports can neither be subsumed under judicial decisions nor under teachings of the most highly qualied publicists of the various nations according to article 38 section 1 (d) of the Statute of the ICJ but they are typically characterized by elements of both of these alternatives. In the determination of rules of law the ICJ refers in advisory opinions31 and in legal disputes32 to reports of special procedures; likewise several Governments in the course of the written33 and oral34 ICJ proceedings. Reports 30 A quote in para. 27 of the annual report 1997 of Maurice Gll-Ahanhanzo, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance from 1993 to 2002 (UN Doc. E/CN.4/1997/71) was formally censored by Commission on Human Rights decision 1997/125 of 18 April 1997. 31 LegalconsequencesoftheconstructionofawallintheOccupiedPalestinian Territory,9July2004, International Court of Justice, Advisory Opinion, paras. 57 and 133 () as well as the Separate Opinions of Judge Rosalyn Higgins (paras. 23 and 40, )andofJudgeNabilElaraby(para.3.3,). 32 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 Decem-ber 2005, International Court of Justice, paras. 60, 70, 150, 182, 206 and 209, ; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), International Court of Justice, Order of 10 July 2002, Separate Opinion of Judge Jean-Pierre Mavungu, footnote 2, . 33 Land and maritime boundary between Cameroon and Nigeria, Rejoinder of the Federal Republic of Nigeria, January 2001, para. 18.12, . 34 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counsel of the Democratic Republic of the Congo Tshibangu Kalala, Verbatim Record of 25 April 2005, para. 21 as well as footnotes 9 and 32, . See, however, the dierent approachinApplicationoftheConventiononthePreventionandPunishmentoftheCrimeofGenocide (Bosnia and Herzegovina v. Serbia and Montenegro), Counsel of Serbia and Montenegro Xavier de Roux, VerbatimRecordof14March2006,paras.16,61and120,. RHRS 2,1-2_f2_3-17.indd 13 9/21/07 2:08:39 PM14M. Wiener / Religion and Human Rights 2 (2007) 317of mandate holders appear to be particularly suitable as subsidiary means for the determinationofrulesoflawbecausethroughthereproductionofthecorre-spondencewiththeGovernmentstheydocumenttheopinioiurisofthelatter and at the same time the Special Rapporteurs may evaluate the state practice by undertaking in situ visits and by processing information from non-governmental organizations. C.Te Special Rapporteurs Framework for Communications Finally, the substantive legal statements of the three mandate holders as Special Rapporteuronfreedomofreligionorbelieffrom1986to2006arepresented according to the categories of Ms. Jahangirs framework for communications (see UN Doc. E/CN.4/2006/5, Annex and the layout below) in order to make trans-parent their potential as subsidiary means for the determination of rules of law. Concerningthenotionsofreligionandbelief themandateholdersdidnot formulate a nal denition but they tended to interpret the scope of application of the freedom of religion or belief in line with the principle in dubio pro libertate. Teforuminternumcomprisesthefreedomtoadopt,tochangeandtoreplace ones religion or belief, i.e. the Special Rapporteurs explicitly recognize a right to Freedom of religion or beliefFreedom to adopt, change or renounce a religion or beliefFreedom from coercionFreedom to worshipPlaces of worshipReligious symbolsObservance of holidays and days of restAppointing clergyTeaching and disseminating materials(including missionary activity)Te right of parents to ensure the religiousand moral education of their childrenRegistrationCommunicate with individuals and communities onreligious matters at the national and international levelEstablish and maintain charitable and humanitarianinstitutions/solicit and receive fundingConscientious objectionDiscrimination on the basis of religion or belief/inter-religious discrimination/toleranceTe right to manifestone's religion or beliefState religionWomenPersons deprived of their libertyRefugeesChildrenMinoritiesMigrant workersFreedom of expression including questions related toreligious conflicts, religious intolerance and extremismRight to life, right to libertyProhibition on torture and other cruel, inhuman ordegrading treatment or punishmentDerogationLimitationLegislative issuesDefenders of freedom of religion or belief and non-governmental organizationsDiscriminationVulnerable groupsIntersection of freedom of religionor belief with other human rightsCross-cutting issuesFramework forcommunications(E/CN.4/2006/5, Annex)RHRS 2,1-2_f2_3-17.indd 14 9/21/07 2:08:39 PMM. Wiener / Religion and Human Rights 2 (2007) 3171535 Elimination of all forms of religious intolerance, Report of the Special Rapporteur of the Commission on Human Rights on freedom of religion or belief, Asma Jahangir (UN Doc. A/60/399), paras. 4068. 36 ReportoftheSpecialRapporteuronfreedomofreligionorbelief,AsmaJahangir(UNDoc.E/CN.4/2006/5), paras. 5160. 37 Elimination of all forms of religious intolerance, Interim report prepared by Abdelfattah Amor, Special Rapporteur of the Commission on Human Rights on freedom of religion or belief (UN Doc. A/58/296), paras. 5152. 38 ReportsubmittedbyAsmaJahangir,SpecialRapporteuronfreedomofreligionorbelief(UNDoc. E/CN.4/2005/61), paras. 5758. conversion. Te liberty of parents or legal guardians to ensure that their children receive a religious or moral education in conformity with their own convictions must be respected but the right to change ones religion devolves upon the chil-dren at the point at which they are capable to take such a decision themselves. Tefreedomfromcoercionbarsbothphysicalcoercionandcertainformsof state-sponsoredincentivesorpressure;however,non-statemissionaryactivities such as unethical conversions should not be criminalized in abstract terms.35 With regard to the freedom to worship, the mandate holders discussed, inter alia, the religious use of the narcotic drug peyote during a traditional ceremony oftheNativeAmericanChurchandtheywarnedofpotentialadverseconse-quences when religious rites were prohibited. Restrictions imposed by the state on places of worship and attacks by non-state actors do not only violate the right of a single individual but also the rights of the community attached to the place in question. Special rapporteur Jahangir developed a set of general indicators in order to evaluate whether national laws regulating the wearing of religious sym-bols are in conformity with the applicable international human rights standards.36 National provisions on religious holidays and days of rest may lead to problems inmulti-religioussocietieswhichcouldbesolvedbyapplyingexemptionsfor religious minorities. Te state should not restrict the right to appoint appropriate religious leaders and clergy beyond the permissible limitations. Te right to free-dom of thought, conscience, religion or belief includes the freedom to teach and disseminate relevant publications as well as missionary activities, particularly as proselytism is itself inherent in religion. Although the Madrid Final Document of the international consultative conference on School Education in Relation with Freedom of Religion and Belief, Tolerance and Non-Discrimination can only be regarded so far as soft law, the Special Rapporteur used it as a yardstick for desir-ablenon-discriminatorycontentsofschooltextbooks.37Concerningtheproce-dureforregistrationofreligiouscommunities,SpecialRapporteurJahangir referredtothe2004guidelinespreparedbytheOrganizationforSecurityand CooperationinEuropeinconsultationwiththeCouncilofEuropesVenice Commission.38Tecontentiousissuewhetherthefreedomofreligionorbelief also comprises the right to entry for foreign missionaries has so far been dealt with only supercially. Te Special Rapporteurs have criticized various national restric-tions on charitable institutions and their funding through contributions but they RHRS 2,1-2_f2_3-17.indd 15 9/21/07 2:08:39 PM16M. Wiener / Religion and Human Rights 2 (2007) 317also pointed to possible implications of a nancial dependency on foreign sources andtopertinentcodesofconductforhumanitarianNGOs.Althoughneither article 18 UDHR nor article 18 ICCPR explicitly refer to conscientious objec-tion, the mandate holders assume that it represents a (fundamental) right as part of the freedom of religion or belief and they request the states provision of pro-cedural and substantive guarantees.39 In addition, the mandate practice has dealt with a number of discriminatory acts both from the states and from non-state actors, thus arming an obligation for states to protect against private discrimination and working on the assump-tion that there are indirect horizontal eects. Te fact that a religion is recognized asaStatereligionorthatitisestablishedasocialortraditionalisnotperse contrary to international human rights but it shall not result in any impairment of the rights of religious minorities. Special rapporteur Amor thoroughly examined the issue of vulnerability of women in his 2002 thematic study on Freedom of Religion or Belief and the Status of Women from the Viewpoint of Religion and Traditions. Concerning persons deprived of their liberty the mandate holders Amor and Jahangir called for the compliance with the 1955 Standard Minimum Rules for the Treatment of Prisoners.40 Refugees and migrant workers may also nd themselves in a situ-ation of specic vulnerability with regard to their freedom of religion or belief. Te Special Rapporteurs repeatedly referred to the primary consideration of the best interests of the child as well as to their freedom of religion or belief. Reli-giousminoritiesshouldnotonlybegrantedprivilegesbythestatesbutthey rather dispose of inherent rights which have to be ensured and protected by the Governments. Tere may be intersections of freedom of religion or belief with other human rights, i.e. when dierent human rights are simultaneously violated by an act or whenthereisapotentialconictbetweenfreedomofreligionorbeliefand another human right. In the context of the controversy subsequent to the publi-cations of caricatures of the prophet Mohammed, the Special Rapporteur Jahan-giremphasizedtheimportancebothofthefreedomofexpressionandofthe freedomofreligionorbeliefthatshouldbeequallyrespectedandprotected. Te mandate holder dAlmeida Ribeiro dealt with the fatwa against the author 39 Report submitted by Mr. Angelo Vidal dAlmeida Ribeiro, Special Rapporteur appointed in accordance with Commission on Human Rights resolution 1986/20 of 10 March 1986 (UN Doc. E/CN.4/1992/52), paras. 132139 and 185; Interim report on the elimination of all forms of religious intolerance, prepared by Mr. Abdelfattah Amor, Special Rapporteur of the Commission on Human Rights, in accordance with General Assembly resolution 50/183 of 22 December 1995 (UN Doc. A/51/542), paras. 5354; Summary of cases transmitted to Governments and replies received [by Ms. Asma Jahangir] (UN Doc. E/CN.4/2006/5/Add.1), paras. 1011, 2526, 138, 305 and 364. 40 Elimination of all forms of religious intolerance, Report of the Special Rapporteur of the Commission on Human Rights on freedom of religion or belief, Asma Jahangir (UN Doc. A/60/399), paras. 6991. RHRS 2,1-2_f2_3-17.indd 16 9/21/07 2:08:40 PMM. Wiener / Religion and Human Rights 2 (2007) 31717Salman Rushdie in terms of the latters right to life and the Special Rapporteur referredtotherequirementsconcerningtheimpositionofthedeathpenalty under article 6 ICCPR.41 In Ms. Jahangirs opinion, the punishments of amputa-tion or stoning contained in certain sharia penal codes constitute treatment that is contrary to universally recognized norms prohibiting torture and other degrad-ing, cruel and inhuman treatment or punishment.42 Te provision in article 4 section 2 ICCPR, according to which no derogation from article 18 ICCPR may be made even in time of public emergency, was taken bythemandateholdersAmorandJahangirasevidenceofthefundamental importance of the freedom of religion or belief. Furthermore, they voiced their concerns against vague legal provisions which were liable to permit interference by the authorities, granting them excessive discretionary powers. Even when dis-tinctions are provided for in the national constitution, international human rights suchastheprohibitionofdiscriminationaccordingtoarticle26ICCPRtake precedence. Finally, the Special Rapporteurs dAlmeida Ribeiro, Amor and Jahan-giremphasizedtheimportantrolethatnon-governmentalorganizationsplay within the framework of the mandate practice, particularly as sources of informa-tion and due to their support during in situ visits.43 41 Report submitted by Mr. Angelo Vidal dAlmeida Ribeiro, Special Rapporteur appointed in accordance with Commission on Human Rights resolution 1986/20 of 10 March 1986 (UN Doc. E/CN.4/1993/62), para. 79. 42 Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, Mission to Nigeria (UN Doc. E/CN.4/2006/5/Add.2), paras. 6768 and 100. 43 Report submitted by Mr. Angelo Vidal dAlmeida Ribeiro, Special Rapporteur appointed in accordance with Commission on Human Rights resolution 1986/20 of 10 March 1986 (UN Doc. E/CN.4/1993/62), para. 73; Interim report of the Special Rapporteur of the Commission on Human Rights on the elimination of all forms of intolerance and of discrimination based on religion or belief [Mr. Abdelfattah Amor] (UN Doc. A/56/253), paras. 151156; Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, Mission to Nigeria (UN Doc. E/CN.4/2006/5/Add.2), para. 7. RHRS 2,1-2_f2_3-17.indd 17 9/21/07 2:08:40 PM