A/HRC/16/53
individual’s faith.24 Moreover, freedom of religion or belief can be exercised either
individually or in community with others and in public or private. The possibility to wear
religious symbols in the public sphere, including in the school context, thus appears to be a
natural result of the freedom to manifest one’s religion or belief. In addition, religious
symbols in the school may also reflect the religious diversity as it exists in society at large.
44.
On the other hand, the freedom to manifest one’s religion or belief is not without
limitations. According to the criteria set out in article 18, paragraph 3, of the International
Covenant on Civil and Political Rights, limitations must be “prescribed by law and [be]
necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms of others”. The application of the criteria for possible limitations of the freedom
to manifest one’s religion or belief, at any rate, requires diligence, precision and precaution.
Given the ambivalence of the school situation in which students, in particular members of
minorities, might at times experience situations of personal or structural vulnerability, the
general presumption in favour of the possibility to wear religious symbols must thus be
connected with a number of caveats. For instance, in some constellations restrictions on the
freedom to manifest religion or belief by wearing religious symbols may be justifiable in
order to protect minority students from pressure exercised by schoolmates or their
community. Moreover, a teacher wearing religious symbols in the class may have an undue
impact on students, depending on the general behaviour of the teacher, the age of students
and other factors. In addition, it may be difficult to reconcile the compulsory display of a
religious symbol in all classrooms with the State’s duty to uphold confessional neutrality in
public education in order to include students of different religions or beliefs on the basis of
equality and non-discrimination.
45.
Obviously, finding appropriate solutions for conflicts over religious symbols in the
school is not an easy task, and there exists no general blueprint simply applicable to all
constellations or situations. At the same time, it is clear that the goal must always be to
equally protect the positive and the negative aspects of freedom of religion or belief, i.e. the
freedom positively to manifest one’s belief, for instance by wearing religious clothing, and
the freedom not to be exposed to any pressure, especially from the State or within State
institutions, to perform religious activities. Furthermore, any restrictions on the freedom to
observe religious dress codes deemed necessary in that context must be formulated in a
non-discriminatory manner. It would not be legitimate, for instance, if restrictions were
linked to exception clauses in favour only of the dominant religion of the country
concerned.
46.
In this context, the Special Rapporteur would like to draw attention to the
observations made by the previous mandate holder in her last report to the Commission on
Human Rights (E/CN.4/2006/5, paras. 51-60). In that report, Ms. Jahangir developed a
number of general criteria on the assessment of conflicts over religious symbols, especially
in a school situation. Inter alia, she draws a distinction between regulations addressed to all
religious symbols in a neutral manner and regulations which – de jure or de facto –
privilege the symbolic presence of some religions, at the expense of other religions or
beliefs, a practice which may be in breach of the principle of non-discrimination. She also
indicated that accommodating different situations according to the perceived vulnerability
of the persons involved might in certain situations be considered legitimate, e.g. in order to
protect underage schoolchildren and the parents’ liberty to ensure the religious and moral
education of their children in conformity with their own convictions. Furthermore,
24
14
See Human Rights Committee, general comment No. 22 (1993) on the right to freedom of thought,
conscience and religion, para. 4; Human Rights Committee, communication No. 931/2000,
Hudoyberganova v. Uzbekistan, Views adopted on 5 November 2004, para. 6.2; E/CN.4/2006/5,
paras. 40-41.