Imposed limitations on freedom of religion in China and the margin of appreciation doctrine: a legal analysis of the crackdown on the Falun Gong and other "evil cults".

Author:Edelman, Bryan
 
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INTRODUCTION

"Like a rat crossing the street that everyone shouts out to squash, they [Falun Gong] will suffer serious legal sanctions and ultimately receive the shameful fate of failure." (1)

On 25 April 1999, over ten thousand Falun Gong adherents gathered in a peaceful "appeal" around Zhongnanhai, home to the majority of the central governmental leadership in the People's Republic of China (PRC). The protestors wanted the PRC government to officially recognize the movement as a legitimate form of spirituality. (2) Within a week of the protest, Beijing had decided to declare the group an illegal sect. (3) Soon thereafter, the attempt to "squash the rat" began.

According Article 55 of the United Nations Charter, (4) one of the purposes of the UN is promote (emphasis added) "respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." In 1948, the authors of the Universal Declaration of Human Rights (5) sought to give substance to these notions. Article 18 identified freedom of religion as a human right. Eighteen years later this was affirmed in the International Convention on Civil and' Political Rights. (6) Although China signed the Universal Declaration of Human Rights and the Convention of Civil and Political Rights, it is tinder no obligation under treaty law to protect the freedom of religion, until the latter is ratified by the Chinese government. (7) However, there may be obligations arising out of customary international law to which China must comply. Any criticism of China's actions against the Falun Gong must take these factors into account.

This analysis presents a legal critique of the People's Republic of China's crackdown on the Falun Gong. Part I discusses the debate over freedom of religion and whether this right has become part of customary international law. Part II addresses questions pertaining to the derogation and limitation of human rights during times of state emergency and times of peace. The principle of proportionality and the margin of appreciation are introduced as a means to evaluate state infringement u on these rights. Part III provides a chronology of the key legislative and executive actions that have been employed against the Falun Gong. Part IV discusses notions of "cults" and the influence of the Western Anti-Cult Movement in China. Finally, the principles of proportionality and the margin of appreciation are applied to evaluate attempts by the PRC government to take action against the Falun Gong and other "evil cults."

PART I: THE FREEDOM OF RELIGION

Conventions and Declarations

Freedom of religion comprises two elements, belief and practice, (8) These two components are addressed in three principle documents on religious freedom--The Universal Declaration of Human Rights (UDHR), the International Convention on Civil and Political Rights (ICCPR) and the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief (DEID). (9) The UDHR deals with religious freedom in Article 18 (emphasis added):

Everyone has the right to freedom of thought, conscience, and religion; this right includes the freedom ... to manifest his religion or belief in teaching, practice, worship and observance.

Article 18 of the ICCPR also addresses freedom of religion. However, it provides more detail than the UDHR, particularly in relation to the freedom of practice. The freedom of religious choice is protected as well (emphasis added):

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

China is also a party to the DEID. However, like the UDHR, this declaration puts no obligations on states. Taking this limitation into account, the DEID can be construed as a "material source," (10) providing specific content on religious freedom protections. Furthermore, it may represent the fundamental rights recognized by the international community. (11) If so, then China would be legally obligated to comply with all aspects identified as such under international customary law. Article 1 of the Declaration defines the freedom of belief and practice. It 'also identifies a non-exhaustive list of activities which are to be protected (emphasis added):

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief ... and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching.

Paragraph 2 prohibits the state from impinging upon the freedom of choice:

"No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice."

Furthermore, Article 2 prohibits discrimination on the basis of religious belief:

No one shall be subject to discrimination by any State ... on the grounds of religions or other belief.

Finally, Articles 4 and 7 place positive responsibilities on state authority. The former requires states to prevent discrimination on the basis of religion (emphasis added):

All states shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise, and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, and political, social and cultural life.

All states shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination ...

Article 7 requires that legislation be written in a way that results in the realization of religious freedom (emphasis added):

The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.

As a whole, the ICCPR and Declarations described above suggest that everyone has a right to ado t any religion or belief s stem of their liking. This right amounts to the freedom of belief antis within the ambit of customary international law. In addition, individuals also have a right to practice their religion or belief system in private or public. Although not exhaustive, religious practice includes the right to worship, observe holidays, and teach one's faith. However, as discussed in detail in Part II, unlike the freedom of belief, the freedom to practice is subject to restriction by the state.

Because China has not ratified the ICCPR, the status of religious freedom enshrined in international customary law takes on added importance. The creation of a customary rule requires two components: 1) state practice; and 2) opinio juris, a psychological element; which calls for a belief by the state that the "practice is obligatory by the existence of a rule of law." (12) A state s pronouncements and actions, especially those purported to constitute the practice element, are all used to prove the existence of opino juris. (13) China, through its legislation (14) and its statements at the UN, (15) has added to the large body of evidence that the freedom of belief is part of customary law. The existence of a customary rule pertaining to religious practice is less clear. However, if such a rule does exist, it allows for state interference.

Within the body of customary international law, there is some evidence implying that a few aspects of religious freedom can be classified as "fundamental" rights. Fundamental rights are those whose legitimacy do not require individual state acceptance. They are part of the foundation of the international community. States cannot derogate from these rights, even when the life of the nation is at stake. (16) One indication of the hierarchical nature of a given human right is the reference to non-derogation clauses within a treaty. (17) In the case of the ICCPR, Article 4(2) precludes derogation during times of emergency from the rights enshrined in Article 18. However, the ICCPR does allow for limitations on the freedom to practice. Therefore, the freedom of belief and the freedom to choose a religious belief system may be construed as a "fundamental" human right. However, the right to practice one's beliefs is not.

The DEID, which may represent customary international law, appears to support this view. (18) Article 1(3) permits states to limit the freedom to practice. However, there is no limit placed on the freedom of belief or choice. Protection from discrimination on the basis of religion or belief is also identified as a fundamental human right in Articles 2 and 3. The importance of this right is reinforced by Articles 4 and 7, which require states to take, positive measures to prevent such discrimination. Furthermore, Article 1(2) guarantees freedom from coercion which would impair the right of choice.

Taken together, international treaty and customary law suggests that the freedom of belief is a fundamental human right that cannot be limited. However, the state is granted the right to limit the manifestation of those beliefs. Yet, protection against coercion or discrimination on the basis of one's beliefs is also a fundamental human right. Thus, restrictions on the freedom to practice may not amount to coercion or discrimination; restrictions cannot target one specific group. China must afford these basic protections to its citizens, including members of the Falun Gong based on its obligations under international law.

PART II: DEROGATIONS AND LIMITATIONS

Derogation refers to the suspension of rights during times of state emergency. Derogation involves more far sweeping measures than limitations. Although its jurisdiction has no bearing on...

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