HUMAN RIGHTS MIDTERM

Lavanya Kohli

20010768

BALLB (A)

ASSUMPTIONS

 State has ratified all human rights conventions as well as optional protocols.
 International Human Rights Court (IHRC) is para material to Human Rights
Committee.
 M, V and T are nationals of the State.
 Laws of the state have mandated compulsory education for children.

INTRODUCTION

“I” will be giving my legal expert opinion in relation with this hypothetical case. My primary
opinion will be based on violation of Article 18, International Covenant on Civil and Political
Rights (ICCPR hereafter) which allows for to freedom of thought, conscience, and religion.

My opinion will be based considering the Articles, General Comments, Treaties of

International Law and case laws revolving around this matter.

The issue herein is that whether the right of T guaranteed to her under Article 18 ICCPR, has
been violated?

DOES (T) HAVE A RIGHT AT THE FIRST PLACE?

To determine this, one has to focus on two important provisions of ICCPR namely Article 2
and Article 18 r/w General Comment 22.

As per Article 18, everyone shall have the right to freedom of thought, conscience and
religion, further everyone shall have a right to manifest religion or belief. i Moreover, general
comment No. 22, states that freedom to manifest religion or belief may be exercised either
individually or in community with others and in public or private. ii The observance and
practice of religion or belief may include not only ceremonial acts, but also such customs as
the wearing of distinctive clothing.iii

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Further co reading it with Article 2 iv – each party signatory to the ICCPR shall respect and
ensure rights mentioned under the covenant without any distinction, which also includes
respecting, adopting, manifesting and propagating right to religion and belief.

Based on the above provisions, it is evident that T does have a right to manifest her religion
and faith. She thus in the current scenario does have –

 The right to adopt orthodox Islamic faith.

 The right to manifest her faith by wearing clothing and not showing herself unveiled.
 She can further propagate her faith without any interference from state [interreference
only on reasonable grounds is allowed – Article 18(3)].

Hence herein, it is evident that T does have a right to manifestation and propagation of
her religion and belief, which she was denied and hence can approach the ICHR.

JURISDICTION

Firstly, before going into the details of the case, it becomes necessary to establish the fact that
IHRC does have the jurisdiction to hear this matter before it. IHRC is a quasi-judicial body
established under Article 28-39 ICCPR.v

Now, under ICCPR, there is an individual complaint mechanism i.e., individuals can transmit
communication to ICHR if there is violation of any right guaranteed under ICCPR. Although
ICCPR does not talk about individual complaint mechanism explicitly, this mechanism is laid
down in the first optional protocol of ICCPR. vi There are requirements mentioned under
Article 1-5 of the first optional protocol that needs to be fulfilled by any party approaching
the ICHR by means of Individual Complaints namely –

(1) The State against which the complaint is being instituted has to be party to ICCPR
and the Optional protocol.
(2) Complaint must be in congruence with the provisions of ICCPR.
(3) All domestic remedies must be exhausted, and the case should not be being examined
under any other court / body.

In our case all these requirements are fulfilled as – Firstly, State in question is a party to
ICCPR and has successfully ratified the optional protocol. Secondly, complaint being made
herein is under Article 18 of ICCPR. Thirdly T has already approached the judicial system of
her State, before approaching the ICHR, and nothing in facts show that complaint is being
examined under any other court/body.

Hence, the matter is admissible before ICHR.

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HAS ARTICLE 18 ICCPR BEEN INFRINGED?

My opinion in this section, will be divided into sub-parts for further clarity – beginning from
whether there has been an interference made by the State in respect of T’s right under Article
18, if yes, what was the effect of such an interference and whether such an interference can
be justified by state keeping in mind its reservation and the Maoist activity in the state.

A. FOREIGN ORIGIN

The first line of the question clearly mentions M and V are “naturalized married couple”. In
its very literal interpretation, it would mean that both M and V, originally were nationals of
some other country and by the virtue of naturalization they have acquired the nationality of
the current State.

As per the Marriam Webster dictionary, naturalization refers to – “the course of action
undertaken to become a citizen of a country other than the country where one was born.” vii
Hence is clear that it will be reasonable to say that M and V have foreign origins.

B. HAS STATE INTERVENED WITH T’S RIGHT

In this present case , interpreting the provisions of Art 18 while reading it in harmony with
General Comment 22( GC 22 hereafter) , it is clear that Article 18 does allow one to have
freedom to adopt , manifest and propagate ones religion and belief , further GC 22 , says that
religion and belief need to be construed broadly , and any tendency to discriminate any
religion or any belief would not be correct.

Further as stated above and also reiterated by the court in Sonia Yaker v. France, “The
observance and practice of religion or belief may include not only ceremonial acts, but also
such customs as the wearing of distinctive clothing…..” viii Moreover, such beliefs can be
practiced individually as well as in communities.

In the present case, T belonged to an orthodox Islamic faith , in which it was forbidden for
women to show themselves unveiled in front of individuals of both genders. Further , as per
their representation of Quran , wearing “swimwear” was seen to be incompatible with their
religious beliefs. Although one might argue that she was allowed to wear the “so called
burkini”, however the central issue here is that it was against the belief of her family to wear
any kind of swimsuit. The very definition of burkini states – “a swimming costume which
covers the whole body with the exception of the face, hands, and feet, suitable for wear
by Muslim women”ix

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The belief of T’s family is belief held by their interpretation of Quran , needs to be
protected under Article 18. Hence State has interfered with T’s belief under Article 18.

Further, by making swimming lessons compulsory , T is forced to either go against her belief
or fail school due to the nature of the classes. This provision hence puts a negative burden on
T. Although there is not any direct discrimination against T, however her situation falls into
the category of indirect discrimination, wherein due to a particular policy that applies to
everyone but puts certain people at a disadvantage because of their religion or belief. In the
case of Sonia Yaker v. France, it was stated that although the obligation was neutral but an
individual by adhering to that obligation was put to a disadvantage. x Herein T was subjected
to a negative obligation by the state.

C. CAN THE INTEREFERENCE BE JUSTIFIED?

Till now it has been established that the State has interfered with the rights of T which has
negatively impacted her . Reading the GC 22 and Article 18(3) , it is evident that right
enjoyed under Article 18 is not an absolute right. This was further held in the case of
Hudoyberganova v. Uzbekistan , which was decided by this very court , the ICHR had
reasoned that although freedom to manifest ones religion or belief is not an absolute right but
rather a one that can be subject to limitations.xi

Further when we talk about the negative implication , that has been imposed on T by the very
virtue of interreference by the state , in this context one can refer to the case of - Achbita v.
G4S Secure Solutions it was held that a neutral obligation , needs to have a legitimate aim
(proportionate and necessary) to not fall into the ambit of non-discriminatory interference. xii

Further the negative effect imposed on T , due to interreference of the State can only be
justified if it has a legitimate aim and fulfils the conditions of Article 18(3) ICCPR.

In the case of Bikramjit Singh v. France ,xiii it was held that to justify a discriminatory effect
State must establish that the law pursues a legitimate aim and discriminatory effect is
proportionate to the aim . Hence it becomes essential to show that there was a legitimate aim
and this aim was proportional to the proposed objective State wanted to achieve.

D. LEGITIMATE AIM

The aims under Article 18(3) are termed as legitimate aims.

Rights guaranteed under Article 18(1) ICCPR have certain limitations mentioned under
Article 18(3)xiv namely –

a) Prescribed by law.
b) Necessary for public safety, order, health, morals.

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GC 22 mandates that Article 18(3) needs to be strictly interpreted and restrictions are not
allowed on grounds that have not been specified here, even if they would be allowed as a
restriction to other rights protected in the covenant.

Referring to the above stated conditions of Article 18(3), herein the facts explicitly states that
compulsory education is a part of States constitutional mandate, hence from the facts it can be
reasonably assumed that this is prescribed by law.

Further to understand the meaning of “necessary”, one must refer to the Siracausa Principles
that state when a covenant requires a limitation to be "necessary," it means the restriction
must be based on recognized grounds, respond to a pressing need, pursue a legitimate aim,
and be proportionate to that aim to ensure it complies with the covenant's principles.xv

Although first condition under Article 18(3), has been satisfactorily fulfilled it also necessary
for the State to showcase that how it was “necessary” to maintain public safety, order, health,
morals.

The above terms need to be read in accordance with the Siracausa principles to see if they
are relevant in the present case or not.

a) Public Safety
 It implies protection against danger of peoples life , integrity and property . This
principle cannot be applied to impose a vague or arbitrary limitation .
 In the present case, the State’s action of compulsory attendance does not pose any
threat to public safety of any individual.
b) Public Order
 Interpterion of public order has to be context specific in regards with the right is it
affecting.
 The very fact that T, has foreign roots , it can be argued that this was a measure by the
state to integrate foreign children into the society as well as for the smooth
functioning of the education system , this was argued in the case of Osmanoğlu and
Kocabaş v. Switzerland.xvi However even if we take this argument, it won’t be
justified under ICCPR to limit right of religion and belief for purpose of integration,
which can even happen outside the swimming class. Further this is also not the least
restrictive way.

c) Public Health
 Right can be limited when there is a serious threat to the health of the population or
individuals.
 There is no foreseeable public health situation that can justify the states action.
d) Public Morals

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  The situation has to be necessary such that limitation is necessary for upholding the
core values of the community. However this margin granted to states does not extend
to non-discrimination.
 Herein one argument can be that state wanted to preserve the value of its local culture,
possibly wherein it is normalised to wear swimsuits. Furter the state might want to
guarantee everyone the same opportunities irrespective of their background and
further interest could be to make foreign nationals submit to the legal system in force
and to agree to live with the host population.
 However , herein this is a case of indirect discrimination and T, is being forced to
choose between her education and her beliefs which is in direct contradiction to
Article 18(1). Moreover, in order to preserve the local culture, State cannot force its
adoption on people who believe in a distinct belief or religion.

Hence compulsory education , cannot be a legitimate aim and hence not a legitimate
justification for the state to violate Article 18.

E. PROPORTIONALITY

In the case of Bikramjit Singh v. France , it was stated that – “A State cannot declare that a
principle or official policy is a legitimate aim when there is no evidence of an objective and
tangible impact. The total absence of any threats to public order, health and safety or to the
fundamental rights of others must be given due weight when the need for measures under
article 18, paragraph 3, is assessed. When there are no specific risks as a result of an author
manifesting his religion or beliefs, the Committee should be careful before concluding that
there is a need to interfere in such matters.”xvii

In this case, the state cannot demonstrate that requiring mandatory attendance in swimming
classes at the expense of infringing upon T’s religious beliefs cannot be said to fulfil any
legitimate aim under Article 18(3) ICCPR. Herein T is being subjected to indirect
discrimination and the aim of the State cannot be said to be proportionate.

In the case of Sonia Yaker v. France it was held that “ limitations may be applied only for
those purposes for which they were prescribed and must be directly related and
proportionate to the specific need on which they are predicated. Restrictions may not be
imposed for discriminatory purposes or applied in a discriminatory manner.”

Hence it can be said that there was no proportionality as there is no reasonable

connection that can be made between State’s aim to compulsory education and T’s right
to manifest and propagate her religion and belief.

RESERVATION AND MAOIST

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Although it has been established that State has violated Article 18 ICCPR, which talks about
freedom to thought , conscience and religion . However it is important to note that State
herein had also made a reservation , stating that principles of convention shall be without
prejudice to Constitution.

It is important to note that ICCPR does not prohibit reservation neither mention any type of
permitted reservation . However referring to paragraph 8 of General Comment 24, it lays
down situations in which reservation cannot be applied. Herein it also mentions that State
cannot reserve to deny freedom of thought, conscience and religion to a person.xviii Hence it
is clear that no reservation can be made for the same.

Further, as per the situation of maoist is concerned, firstly , if one even assumes that State is
facing a situation of emergency , it cannot be a ground for limitation as it is not mentioned
under Article 18(3) and further Article 18 ICCPR is a non derogable right under Article
4(2).xix Further , any possibility that can arise would be if state argues that due to these maoist
insurgency , it is causing a situation of public order. However there cannot be any reasonable
nexus or relation between both of these. Compulsory education and Maoist protest are very
distinct, further maoist protest is not something new and has been going on since “decades”.

AUXILIARY OPINION

In this particular case, other rights that could be argued would be Right to be treated without
any discrimination (Article 26 ICCPR). xx This particular right allows for equality before law
and forbids any discrimination against any individual . In this particular case “T” was
subjected to indirect discrimination by the very virtue of the fact that the law formulated by
the State had a negative obligation on her rights , as compared to others. Hence she was
discriminated by the actions of the State.

Moreover, Article 19 ICCPRxxi talks about freedom of expression . Covering one’s body and
face is also under the ambit of freedom of expression that is safeguarded by Article 19.
Further, freedom of expression does include freedom to hold different opinions and beliefs, in
this case state has interfered with her belief.

Although ICHR can only deal with matters relating to ICCPR , however another article very
similar to Article 18 ICCPR , would be Article 9 of ECHR. xxii The very case - Osmanoğlu
and Kocabaş v. Switzerland,xxiii was based on this article and had very similar facts to our
present case, however herein the court ruled in favour of the State, the main reason for that
being the “margin of appreciation” that is used by the European courts. However, such
margin of appreciation is not present in case ICHR. There have been cases in which both
ICHR and ECHR held different opinions, if this case was filed before ECHR there would
have been a high likelihood of this case being decided in favour of the State. However, the
way ICHR interprets Articles, the present case should be decided in favour of T.

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BIBLIOGRAPHY

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i
International Convention on Civil and Political Rights (adopted 16 December 1966 UNGA Res 2200A (XXI)) [1976]
art 18.1.
ii
General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18)
(CCPR/C/21/Rev.1/Add.4) [1993].
iii
Sonia Yaker v. France [2016] CCPR/C/123/D/2747/2016.
iv
Ibid art 2.
v
Office of the High Commissioner of Human Rights ‘Introduction to the Committee – Human Rights Committee’
<https://www.ohchr.org/en/treaty-bodies/ccpr/introduction-committee> accessed 19 October 2023.
vi
Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966 UNGA Res
2200A (XXI)) [1976].
vii
Naturalization, Merriam Webster <https://www.merriam-webster.com/dictionary/naturalization#:~:text=nat·
%E2%80%8Bu·%E2%80%8Bral,country%20where%20one%20was%20born > Accessed 19th October, 2023.
viii
Ibid.
ix
‘Burkini’, <https://www.collinsdictionary.com/dictionary/english/burkini> Accessed 19 th October , 2023.
x
Ibid.
xi
Hudoyberganova v. Uzbekistan [2004] CCPR/C/82/D/931/2000.
xii
Achbita v. G4S Secure Solutions [2017] C-157/15.
xiii
Bikramjit Singh v. France [2012] CCPR/C/106/D/1852/2008.
xiv
Ibid Art. 18(3)
xv
American Association for the International Commission of Jurists Inc ‘Siracusa Principles on the Limitation and
Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985)
xvi
Osmanoğlu and Kocabaş v. Switzerland [2012] 29086/12.
xvii
Ibid.
xviii
General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or
the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant
(CCPR/C/21/Rev.1/Add.6) [1994].
xix
Ibid art 4(2).
xx
Ibid art 26.
xxi
Ibid art 19.
xxii
European Convention on Human Rights (adopted 3 September 1953) art 9.
xxiii
Ibid.