A/HRC/31/18
externum. External “manifestations” of religion or belief, while in many cases also
amounting to “expressions” in the understanding of article 19 of the Covenant, often reflect
an existential desire to actually live in accordance with one’s religious or other conviction,
for instance by observing certain dress codes or dietary restrictions, thus exceeding mere
communicative “expressions”. One example illustrating the difference is conscientious
objection to military service, which falls within the subcategories of “observance” or
“practice” listed in article 18. Conscientious objectors would most likely not be satisfied
with having the mere option to publicly “express” their opposition to the use of military
force. What counts for many of them is the possibility to actually shape their lives in
accordance with their conscience-based moral and/or religious position. Generally
speaking, while freedom of religion or belief has a strong communicative component,
which it shares with freedom of opinion and expression, the protected dimensions of
religious manifestations — worship, observance, practice and teaching — cannot be
summed up under the heading of communicative freedom only because they also include
other aspects of leading one’s life in conformity with one’s religion or belief.
24.
The importance of living in accordance with one’s religion or belief naturally
includes family life. In article 18 (4) of the Covenant, States parties “undertake to have
respect for the liberty of parents, and when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own convictions”.
There is no parallel provision in article 19, however, that should not lead to the wrong
conclusions. Of course, the freedom “to impart information and ideas of all kinds”, as
guaranteed in article 19 (2) of the Covenant, also applies to free communication within the
family, particularly between parents and children. Nonetheless, the specific significance
which religious or belief-related convictions have for the self-understanding of individuals
and communities necessitates an explicit recognition of religious and moral socialization
processes within the family. Freedom to “manifest” one’s religion or belief thus includes
the various practical dimensions of organizing one’s entire private and public life,
individually and together with others, in conformity with one’s identity-shaping religious or
belief-related convictions.
4.
Criteria for limitations
25.
Although the forum externum of freedom of religion or belief and freedom
expression is not protected unconditionally in articles 18 and 19 of the Covenant, its legal
protection remains strong. Limitations or restrictions cannot be legitimate unless they
satisfy all the criteria set out in article 18 (3) or article 19 (3), respectively. Notwithstanding
differences in concrete formulations, the tests required in both articles contain similar
elements. Firstly, limitations or restrictions must be “prescribed by law” or “provided by
law”. The requirement of a clearly formulated legal basis should prevent Governments from
intervening in an arbitrary and unpredictable manner. Moreover, limitations or restrictions
must serve a legitimate purpose from an exhaustive list of possible purposes. In the case of
article 18 (3), this list comprises “public safety, order, health, or morals or the fundamental
rights and freedoms of others”. Article 19 (3) enumerates “respect of the rights and
reputations of others”, as well as “protection of national security or of public order (ordre
public), or of public health or morals”. Finally, both articles require that limitations or
restrictions be strictly “necessary” to pursue one of the said purposes. In other words,
proposed limitations cannot be legitimate if the respective purpose could also be served by
a less far-reaching intervention.
26.
The Human Rights Committee emphasizes the need for limitation clauses to be
applied in a strict manner to ensure that the substance of the respective provisions is
preserved also in situations of a real or alleged collision with other rights or important
public interests. In its general comment No. 22, the Committee insists that “limitations may
be applied only for those purposes for which they were prescribed and must be directly
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