The Questionable Grounds of Objections to Proselytism and Certain Other Forms of Religious Expression

I. INTRODUCTION Proselytism seems to attract singular antagonism in many parts of the world. In some countries, the concern is for the maintenance of traditional state religion, especially where the influx of new religious movements that proselytize is seen to threaten the process of rebuilding or reigniting national identity.2 In some countries, national law is inseparable from religious law, and preservation of the orthodoxy of state religion is paramount. In other countries, for example Communist countries, proselytism conflicts with an ideology that does not easily accommodate the assertion of rights of the individual over the interests of the State. The clearest objections to proselytism have been expressed in the link between extreme forms of proselytism and coercion to change religion. These objections were voiced in the drafting of Article 18 of the Universal Declaration on Human Rights3 ("Universal Declaration") and Article 18 of the International Covenant on Civil and Political Rights4 ("International Covenant"), although not extensively in the preparation of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief ("the 1981 Declaration").5 The issue received little attention in the development of the equivalent provision in Article 9 of the European Convention,6 since Article 9 simply drew its text from Article 18 of the Universal Declaration in pursuance of the express aim of the European Convention in taking "the first steps for collective enforcement of certain of the Rights stated in the Universal Declaration."7 Article 9 was to be based as much as possible on Article 18 of the Universal Declaration to reduce the risk of devising definitions that were at odds with those in U.N. instruments. Nevertheless, objections to coercive forms of proselytism also have been aired in the European Court's analysis of Article 9 in the concept of "improper" proselytism first developed in Kokkinakis v. Greece.8 However, the basis of objections to non-coercive forms of proselytism and religious expression are less clear; but recent decisions of the European Court in such cases as Otto-Preminger-Institut v. Austria9 and Murphy v Ireland10 suggest that principles of "respect" may enlarge the scope of the limitation provisions to justify restrictions even on non-coercive forms of proselytism. Although the notion of "respect" has developed primarily within the context of freedom of expression under Article 10, its application within the limitation grounds of Article 9 would represent a development which could restrict many forms of religious expression, including proselytism. In its response to Article 9 claims, the European Court has liberally supported the legitimacy of the aims claimed by States for restrictions on proselytism on the ground of protection for "the rights or freedoms of others," generally preferring instead to make a substantive finding on the basis of whether the State measure was "necessary in a democratic society."11 If principles of "respect," developed in the context of freedom of expression, are imported wholesale into the freedom of religion, the potential result would be an extremely broad interpretation of the limitation ground, "the rights and freedoms of others," in such a way as to suggest a fundamental departure from universal standards. At the same time, it is necessary to recognize that both the Human Rights Committee and Special Rapporteur have endorsed proselytism as a proper manifestation of religion. The European Court has also given nominal endorsement to proselytism as a legitimate form of manifestation of religion or belief. Part II of this Article begins by addressing the objections raised against proselytism during the drafting of those U.N. instruments in which the freedom of thought, conscience, and religion is enshrined. These objections are most visible in the early debates and contrast with the support shown by both the Human Rights Committee and Special Rapporteur12 for proselytism as a legitimate manifestation of religion, coupled with condemnation of restrictions on proselytism and other forms of religious expression. …