E/CN.4/1989/44
paqe 51
86. It is not our intention to present an overall picture of the leqal and
administrative quarantees existinq nationally in this regard. This task would
far exceed the frame of the present report, and in any case the subject has
already been covered by studies and research in the context of other reports
submitted to the Commission on Human Rights or to the Sub-Commission on
Prevention of Discrimination and Protection of Minorities. Particular mention
may be made of the analysis of existinq constitutional and leqal quarantees in
this reqard made by Mrs. Elizabeth Odio Benito, Special Rapporteur of the
Sub-Commission, in her study of the current dimensions of the problems of
intolerance and of discrimination on grounds of religion or belief
(E/CN.4/Sub.2/1987/26, paras. 89-155); or the report of the Secretary-General
to the Commission on Human Riqhts containing a compendium of the national
leqislation and requlations of States on the question of freedom of reliqion
or belief with particular reqard to the measures taken to combat intolerance
or discrimination in this field (E/CN.4/1986/37 and Add.l/Rev.l and Add.2-5)
as well as the addenda to this report (E/CN.4/1987/34 and Add.l and 2;
E/CN.4/1988/43 and Add.1-7). The Special Rapporteur would like at this point
to restrict himself to informing his readers of some considerations of a
general nature deriving exclusively from the analysis of the information
transmitted to him by Governments in reply to his request to them dated
1 July 1988. These considerations concern the various legislative and other
measures envisaged by Governments to guarantee the exercise of the right to
freedom of thouqht, conscience, reliqion and belief in the spheres of
competence of the Declaration.
87. Although all the States which have transmitted information to the
Special Rapporteur referred to the existence, at the domestic level, of
provisions and measures guaranteeing the right to freedom of thought,
conscience and religion, there is nevertheless very considerable diversity in
how this right is set out and qualified, as well as in the provisions and
measures provided in order to quarantee its effective enjoyment. Some
leqislations refer to, incorporate or are based on the relevant provisions of
the Universal Declaration of Human Riqhts or the International Covenant on
Civil and Political Rights. Others also take their inspiration in this reqard
from reqional international instruments such as the European Convention on
Human Rights. In some cases, the national Constitution simply lays down that
the legislature shall not enact any law concerning the establishment of a
reliqion. The replies frequently mention, in addition to the Constitution or
Fundamental Act, other leqal provisions such as criminal or civil laws or
other laws and requlations of a more specific nature. Sometimes reference is
also made to various measures envisaqed to ensure the implementation of leqal
norms and the efficient functioning of recourse procedures for the victims of
infringements of the right to freedom of thought, conscience, religion or
belief, including, for example, the establishment of national human rights
commissions, advisory commissions on the freedom of reliqion, and machinery
such as constitutional courts.
88. The measures referred to below, based on the replies received, concerninq
the various aspects of the riqhts and freedoms mentioned in the
1981 Declaration, are only cited as examples and in order to illustrate
positive measures which may contribute to guaranteeing the implementation of
the provisions of the Declaration.