Registration of communities based on religion and belief

October 10, 2005 - nr.21
Summary

Foreword

 

On 13 February 2001, the Dutch Minister of Foreign Affairs, acting on behalf of the Government, requested the Advisory Council on International Affairs (AIV) to submit an advisory report on the following questions:

1. What types of problems do communities based on religion or belief experience as a result of legislation that imposes wide-ranging restrictions on registration and re-registration?

2. What rights and freedoms can as yet unregistered communities based on religion or belief claim on the grounds of international human rights standards?

3. What minimum requirements, based on international human rights standards, must legislation on registration or re-registration of communities based on religion or belief meet, taking account of the legitimate restrictions on freedom of religion or belief?

In his letter, the Minister emphasised freedom of religion or belief as a fundamental and intrinsic element of Dutch human rights policy. Restrictions on freedom of religion or belief may only be imposed under strict conditions. He further pointed out that, since the fall of the communist regimes in Central and Eastern Europe in 1989, a great number of small religious and belief communities have emerged, some of which are considered a threat to the government and to more traditional, longer established churches. This has led in some countries to the imposition of restrictive requirements on religious and belief communities, sometimes based on a discriminatory attitude on the part of the government, as for instance in Azer-baijan, Macedonia, Uzbekistan, the Russian Federation, and Turkmenistan. Criticism of such new, restrictive laws has been made by the Netherlands and the European Union in the context of the Organisation for Security and Cooperation in Europe. Furthermore, small religious communities have themselves expressed criticism of the restrictive attitudes of some Western countries and measures they have taken as a result. The Minister pointed in particular to the obligation of communities based on religion or belief to register. Any requirement concerning registration or re-registration should be unequivocal, transparent, and non-discriminatory, as well as conforming to international human rights standards. (See Annexe I for the request for advice).

In view of the limited time available for the preparation of this report, the AIV decided to limit its advisory report strictly to those items that are of direct relevance to the problem of registration and re-registration. This means that it does not deal with other interesting and important aspects relating to freedom of religion or belief.

This report was prepared by a subcommittee of the Human Rights Committee (CMR) of the AIV. The Committee consists of the following persons: Professor P.R. Baehr* (chair of the subcommittee), Professor C.E. von Benda-Beckmann-Droogleever Fortuijn (vice-chair), Professor T.C. Van Boven, Dr M.C. Castermans-Holleman, Professor C.P.M. Cleiren, Professor P.B. Cliteur, T. Etty, Professor

C. Flinterman* (chair), Professor W.J.M. van Genugten*, L.Y. Goncalves-Ho Kang You, C. Hak, M. Koers-van der Linden, F. Kuitenbrouwer, A.L.E.C. van der Stoel*, J.G. van der Tas and H.M. Verrijn Stuart. Members whose names is marked with an asterisk (*) were in the subcommittee responsible for drafting the report. Professor B. de Gaay Fortman of the Development Cooperation Committee (COS) was also a member. Professor T.C. van Boven (Human Rights Committee) and

Professor J.W. de Zwaan of the European Integration Committee also took part,

primarily by correspondence.

The preparation of the advisory report benefited from the assistance of H.J. Hazewinkel (DMV) and Dr. B.G. Tahzib-Lie (DMV/MR) of the Ministry of Foreign Affairs. The AIV further expresses its sincere gratitude to the external experts Dr. S.C. van Bijsterveld and Dr. C.D. de Jong who were instrumental in producing this report.

The executive secretary of the committee was T.D.J. Oostenbrink, who was assisted by M.M.T. Keyte and A.R. Walrecht, interns.

The AIV adopted this report on 1 June 2001.

 

 

Introduction

 

Throughout history, communities based on religion or belief have been obliged to be registered. The problems deriving from registration have, over the years, remained essentially unchanged. The issue of registering such communities must be seen in connection with freedom of religion or belief as an individual right, and more particularly to the collective and corporate dimensions of this freedom. It relates to the intrinsic meaning of this freedom as well as to the organisation of relations between the state and religion at national level.

Registration of religious and belief communities and its significance in the light of freedom of religion or belief must further be seen in the context of the function of registration in a legal system; that is the requirements for registration must be assessed with reference to its legal consequences.

It is not registration as such, but its legal consequences that may make registration a problem. These consequences differ from country to country. In some countries, registration is a precondition for being tolerated or accepted as a ‘religion’ or ‘belief’, while in other states it functions as a precondition for obtaining legal personality, or other legal consequences, such as the enjoyment of fiscal benefits. States differ considerably in the way they relate to these communities, and how they take religion and belief into account in the general infrastructure of the law. Where communities based on religion or belief are accepted within the framework of the law, criteria may be introduced and may even be necessary. Different legal techniques are available, registration being one of them. Legislation differs considerably from one country to another.

Depending on the precise criteria for and the consequences attached to registration, refusal to register a community may either be a relatively neutral administrative act or may have severe negative consequences.

An assessment in the light of international law of requirements for registration of

communities based on religion or belief must take these elements into account. The assessment of registration, in other words, must always be related to the legal consequences attached to it.

Registration or re-registration sometimes takes place under circumstances of profound social change. Under such circumstances, refusal to register religious and belief communities may easily lead to conflict. Registration may therefore sometimes be resorted to or justified by public authorities with a view to containing unrest in society. However, under such circumstances, registration may also bring about the opposite consequences and feed unrest. In such situations, the positive as well as negative aspects of registration call for extra attention, since it can both promote and hamper tolerance between various groups.

This report is organised as follows. It will first give a brief survey of international human rights guarantees pertinent to freedom of religion or belief (Chapter II). This will provide an insight into the basic guarantees to which unregistered religious and belief communities are entitled. In addition, it will provide a basis for a further analysis of the standards to which registration itself must comply under international human rights law (Chapter III). The final chapter contains the AIV’s conclusions

Advice request

Advisory Council on International Affairs
Attn. Professor F.H.J.J. Andriessen, Acting Chair
P.O. Box 20061
2500 EB The Hague

 

Human Rights and Peacebuilding Department
Human Rights Division
Bezuidenhoutseweg 67
2594 AC The Hague

 

Request for advice on freedom of religion or belief

 

Protection of the freedom of religion or belief is a fundamental and intrinsic element of Dutch human rights policy. It is a freedom enshrined in various global and regional instruments relating to human rights, whose provisions on freedom of religion or belief explicitly emphasise that states may impose restrictions on manifestation of religion or belief only under strict conditions. However, no restrictions whatsoever may be imposed on the freedom to subscribe to or change a religion or belief. Various supervisory treaty bodies, such as the United Nations Human Rights Committee and the European Court of Human Rights, have contributed to the development of the normative content of the evolving series of provisions on freedom of religion or belief. According to their interpretation, the concept of 'religion or belief' covers all theistic, atheistic and non-theistic beliefs, whether traditional, new, well-known or unfamiliar.

Since 1989, there has been a growing interest in freedom of religion or belief in Central and Eastern Europe, where the freedom to manifest religious or other beliefs was restored or enhanced after the fall of communist regimes. This has led to a proliferation of small religious and belief communities, some of which were already in existence and some that are completely new. Both authorities and traditional, established religious and belief communities may consider these developments a threat. The fear of religious extremism, whether real or supposed, plays often a role here. In several countries in Central and Eastern Europe, such anxieties have resulted in the preparation or enactment of laws

designed to, inter alia, impose restrictive requirements on religious and belief communities. Authorities often take a discriminatory attitude towards small existing or new religious and belief communities in the imposing and enforcing highly restrictive registration and re-registration requirements. This is true, for instance, of legislation in Azerbaijan, Macedonia, Uzbekistan, the Russian Federation and Turkmenistan. The Netherlands and the European Union have raised criticism of these new, restrictive laws within the Organisation for

Security and Cooperation in Europe. Furthermore, over the past few years, small religious communities have themselves expressed criticism of the restrictive attitudes of some

Western countries and of measures they have taken as a result.

Religious and belief communities must be able to register and gain official recognition in order to flourish. In the first place, registered religious and belief communities may become legal entities, which has significant legal implications relating to the practice of a religion or belief, such as the hiring of premises where services can be held, the publication and dissemination of religious literature, the appointment of religious leaders, and, where applicable, eligibility for subsidies. It is therefore extremely important that any requirements concerning registration or re-registration are unequivocal, transparent and non-discriminatory, and that they conform to international standards relating to human rights.

 

In the light of these considerations, I would appreciate your advice on the following:

1) What types of problems do religious and belief communities experience as a result of legislation that imposes wide-ranging restrictions on registration or re-registration?

2) What rights and freedoms can (still) unregistered religious and belief communities claim on the grounds of international standards relating to human rights?

3) What minimum requirements, based on international standards relating to human rights, must legislation on the registration or re-registration of religious and belief communities meet, taking account of the permitted restrictions on freedom of religion or belief?

Your advice is of particular importance in view of the international seminar on this subject which the Netherlands is organising within the framework of the OSCE. The aim of the seminar, which will be held in The Hague on 26 June 2001, is to draw up guidelines and have them adopted by the OSCE in the future.

 

I very much look forward to your advisory report.

 

J.J. van Aartsen

(signed)

Minister of Foreign Affairs

Government reactions

To the Acting Chairman of the Advisory                                               Human Rights and

Council on International Affairs                                                            Peacebuilding Department

Prof. F.H.J.J. Andriessen                                                                   Human Rights Division

P.O. Box 20061                                                                                Bezuidenhoutseweg 67

2500 EB  The Hague                                                                         2594 AC  The Hague

 

 

Date:                 24 August, 2001

Ref:                   DMV/MR-590/01

Encl.:                 concluding seminar statement made by the

                        moderator of the seminar on freedom of

                        religion or belief in the OSCE region

                        held in The Hague on 26 June 2001

Re:                   Government response to the AIV report

                        “Registration of communities based on religion or

                        Belief”

 

 

Dear Professor Andriessen,

 

I should like to express my appreciation of your report of 1 June 2001 on the registration of communities based on religion or belief. It proved very useful during preparations for the international seminar on freedom of religion and belief in the OSCE region held in the Ridderzaal, The Hague on 26 June. The report was also distributed to the seminar participants.

 

Your answers to the questions put before you set the tone for the seminar. The moderator’s concluding seminar statement (enclosed) is based to a substantial degree on these answers and it reflects many of the report’s conclusions and recommendations. Your report will be included in a publication on the seminar which will appear in September.

 

I am also pleased to be able to endorse your report, except for one part (the sixth and seventh conclusions on p. 18). These two conclusions describe a situation in which registration may be a positive obligation on the part of states. One might conclude from this that registration or re-registration of communities based on religion or belief could be a precondition for the exercise of rights and freedoms deriving from global and regional instruments relating to human rights. This would not appear to be compatible with your eighth conclusion (p. 18) and second recommendation (p. 19) in which you explicitly state that unregistered communities may not be deprived of their rights and freedoms under international law.

 

The seminar moderator therefore noted in the concluding statement that:

‘If a participating State chooses to impose local or national registration requirements, such requirements should not become a precondition for the enjoyment of the rights and freedoms set out in OSCE documents. When certain additional rights and privileges are provided following local or national registration or re-registration, OSCE participating States must ensure that the registration requirements are transparent, non-discriminatory, and serve a legitimate purpose as agreed in OSCE documents.’

 

Religious and belief communities that are not or not yet registered must therefore be able to enjoy, without restriction, the rights and freedoms they derive from international norms in the area of human rights. Although this does not prevent states from restricting certain manifestations of religion or belief subject to strict conditions, registration or re-registration does not seem an appropriate method of imposing such restrictions. However, where certain privileges, such as exemption from taxes, is concerned, a registration requirement might of course be acceptable. In such situations your view can be endorsed.

 

As also became clear during the seminar, the subject of freedom of religion or belief, and in particular the issue of recognition and registration requirements applying to communities based on religion or belief, will remain topical for the time being. The Netherlands will continue to devote attention to this issue, both within the OSCE framework and beyond, particularly when it holds the OSCE chairmanship in 2003.

 

 

Yours sincerely,

 

Jozias van Aartsen

Minister of Foreign Affairs

 

Press releases
No press release has been published for this advice.