E/CN.4/1995/91/Add.1
page 66
The traditionally recognized right for parents and legal guardians
to choose religious education for their children or wards in accordance
with their beliefs, which was confirmed by the Supreme Court of Justice
of Argentina in the Schvartz case of 1957, Judgement No. 239:367, among
others, is supplemented by the right of curators.
In this connection, it should be recalled that article 14 of the
Convention on the Rights of the Child of 1989, in force in Argentina
since 4 January 1991, stipulates that States parties shall respect ’the
right of the child to freedom of thought, conscience and religion’ and
’the rights and duties of the parents and, where applicable, legal
guardians, to provide direction to the child in the exercise of his or
her right in a manner consistent with the evolving capacities of the
child’.
Article 3 states that, without prejudice to the rights to which
their members are entitled, churches, denominations or religious
communities have very specific rights which are enumerated in four
subparagraphs and correspond, respectively, to the provisions of
article 6 (a), (b), (d), (i) and (g) of the 1981 United Nations
Declaration.
In describing the restrictions which may legitimately be placed on
religious freedom, article 4 states: ’The only limitations on the
exercise of the rights deriving from the freedom of religion and of
worship are the right of others to exercise their own freedoms and the
limitations necessary for the maintenance of public order, health and
morals’.
That article should be read in the light of article 12,
paragraph 3, of the American Convention; article 18, paragraph 3, of the
International Covenant; article 1, paragraph 3, of the Declaration; and
article 14, paragraph 3, of the Convention on the Rights of the Child,
all of which refer to limitations prescribed by law and necessary for
protecting public safety, public order, public health and morals and the
fundamental freedoms and rights of others.
According to two other paragraphs of article 4, in the eye of the
law, no exemptions are granted, on the grounds of professing to hold
given religious beliefs, to the duty to carry out obligations of a
public nature imposed by a Constitution or the law; and the right to
conscientious objection is governed by a special law, which implies that
it is the authorities’ intention to ensure that the right is guaranteed.
The law defines its scope of application by specifying that it does
not protect ’activities and entities involved in the study of
astrophysical, psychic or parapsychological phenomena, divining,
astrology or the dissemination of purely philosophical, humanist or
spiritualist values; satanic rites; or with any related experiments that
might be conducted’. Without going into the complex and thorny problem
posed by the definition of ’religion’, in some manner the draft defines
the boundaries outside of which such activities fall.