Koninklijke Brill NV, Leiden, 2008DOI:10.1163/187103108X286537Religion and Human Rights 3 (2008) 113 www.brill.nl/rhrsReligionHumanRightsTe Legal Obligations of State and Non-State Actors in Respect of the Protection of Freedom of Tought, Conscience and Religion or BeliefDennis de Jong*Advisor on Human Rights and Peacebuilding in the Netherlands Ministry of Foreign AairsAbstract In this article, the author examines the consequences of the recent recognition of the idea that not only States but also non-State actors can violate human rights. While this development can help in dening the positive obligations of States concerning the protection of freedom of religion or belief, it can also undermineitsprotection.Inparticular,theauthorwarnsagainstimplicationsforStateinterference with what used to be the internal aairs of religious communities. Whereas positive State obligations concerning the acts of non-State actors can be relatively easily established in the case of clear criminal of-fences, it is much more di cult to establish these in the case of conicts between various human rights. Te author therefore concludes that a new comment by the Human Rights Committee is called for to clarify the implications of these new legal developments. Keywords Freedom of religion or belief; Non-State actors; Positive State obligations I.Introduction Traditionally,internationalhumanrightslawhasbeencodiedwithaviewof protecting citizens against arbitrary acts by the State. Individuals thus became the holders of rights and the State and those acting on behalf of the State the bearers of duties. More recently, this picture has become more complicated. It has been generally recognised that the State has a positive obligation to ensure the enjoyment ofhumanrightsnotonlyinrespectofunlawfulinterferencesbyitsownrepre-sentatives,butalsoagainstcertaininterferencesbynon-Stateactors.Moreover, *Dr. Dennis de Jong currently serves as Advisor on Human Rights and Peacebuilding in the Nether-lands Ministry of Foreign Aairs and in this capacity deals, inter alia, with the protection of freedom of religion or belief and the promotion of intercultural and inter-religious dialogue. He obtained his doctor-ateininternationallawin2000attheUniversityofMaastricht.HisthesishasbeenpublishedasTe Freedom of Tought, Conscience and Religion or Belief in the United Nations (19461992) (Intersentia and Hart, 2000). He is member of the OSCE Advisory Panel on Freedom of Religion or Belief and of the Board of the academic think tank Focus on Freedom of Religion or Belief (FoFoRB). Tis is the lightly revised text of the paper he presented on 10 December 2007 at a seminar organised by FoFoRB.2D. de Jong / Religion and Human Rights 3 (2008) 113thereisadenitetrendtowardstheacceptanceofthenotionofhumanrights violations committed by non-State actors, inter alia, in the elds of combating tracking in human beings, womens rights and business and human rights. In this article, the author examines how these developments aect the protec-tion of the freedom of thought, conscience and religion or belief.1 He concludes that they oer opportunities for the promotion of tolerance in matters relating to religionorbeliefandfortheprotectionofespeciallyminorityreligiousbelief communities.Nevertheless,thenotionofobligationsfornon-Stateactorscan lend itself to abuse and to reducing the scope of the freedom of religion or belief, if not applied scrupulously. II.Te Positive Obligations of State and Non-State Actors A.Te Positive Obligations of States BoththeUNHumanRightsCommitteeandtheEuropeanCourtofHuman Rights have explicitly recognised the notion of positive State obligations. Te Human Rights Committee included a number of such observations in its GeneralCommentNo.31onTeNatureoftheGeneralLegalObligation Imposed on States Parties to the Covenant.2 It bases itself primarily on article 2, paragraph 1 of the ICCPR which reads as follows: EachStatePartytothepresentCovenantundertakestorespectandtoensuretoallindividuals withinitsterritoryandsubjecttoitsjurisdictiontherightsrecognizedinthepresentCovenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opin-ion, national or social origin, property, birth or other status. On this basis, the Committee states that the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoy-ment of Covenant rights in so far as they are amenable to application between privatepersonsorentities.Teremaybecircumstancesinwhichafailureto ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investi-gate or redress the harm caused by such acts by private persons or entities. States 1 During the remainder of the article, for practical purposes the term freedom of religion or belief is used instead of the ocial reference to freedom of thought, conscience and religion (or belief ) as included in art. 18 of the ICCPR.2 UN Doc. CCPR/C/21/Rev.1/Add.13. See, in particular, paragraphs 6, 8 and 10. D. de Jong / Religion and Human Rights 3 (2008) 1133areremindedof the interrelationship between the positive obligations imposed under article 2 and the need to provide eective remedies in the event of breach under article 2, paragraph 3. Te Committee continues that a State Party must respectandensuretherightslaiddownintheCovenanttoanyonewithinthe power of eective control of that State Party, even if not situated within the terri-tory of the State Party. Te key notion in the Committees comments is the duty to exercise due dili-gence to prevent, punish, investigate or redress the harm caused by private per-sons or entities. Te legal concept of due diligence describes the minimum eort a state must undertake in order to fulll its responsibility to protect individuals from abuses of their rights.3 It does not, however, provide individuals or commu-nities with an absolute guarantee that their rights will never be violated by non-State actors, since although the State has to take preventive measures, there is no obligation for States to provide fool-proof preventive measures. It is even ques-tionable if such fool-proof measures could ever be possible in a democratic soci-ety. However, if non-State actors do violate the rights of others, the government will certainly have to investigate and punish the oenders and provide an eective right to remedy to the victims. In the case of 97 members of the Gldani Congregation of Jehovahs Witnesses and 4 Others v. Georgia4 the European Court of Human Rights examined a case of reli-gious believers who had been attacked and humiliated during one of their religious meetings by non-State actors. Although primarily concerned with article 3 (torture andinhumanordegradingtreatment),theCourthadpreviouslyelaboratedthe notion of positive State obligations. However, in this judgement such positive obli-gations were explicitly recognised with respect to freedom of religion or belief, as included in article 9 of the European Convention on Human Rights. Te main considerations of the Court are the following: Te Court wishes to emphasise that, in the name of freedom of religion, it is not authorised to apply improper pressure on others from a wish to promote ones religious convictions. However, the role 3 In his report to the Commission on Human Rights (later: Human Rights Council), of 20 January 2006 (E/CN.4/2006/61), the UN Special Rapporteur on Violence against Women, its Causes and Con-sequences,prof.YakinErtrkincludedanextensiveanalysisoftheconceptofduediligence.Inher address to the HRC, in September 2006, Ertrk states that It is now a rmly established principle of international law that states have a duty to take positive action to prevent and protect women from vio-lence, to punish perpetrators and to assure compensation for victims. Failure to fulll this duty consti-tutes a breach of international law. Although Ertrk certainly emphasises the importance of preventive policies, the Special Rapporteur does not automatically condemn States, where violence against women occurs, but rather focuses on the scope and seriousness of the measures taken by the State. If a State has done everything that one could reasonably expect from it, it has met the criterion of due diligence, even if violence against women has not been completely eliminated. 4 Applicationno.71156/01,Judgementof3May2007..4D. de Jong / Religion and Human Rights 3 (2008) 113of the authorities in such circumstances is not to remove the cause of tension by eliminating plural-ism,buttoensurethatthecompetinggroupstolerateeachother.TisStateroleisconduciveto public order, religious harmony and tolerance in a democratic society and can hardly be conceived as being likely to diminish the role of a faith or a Church with which the population of a specic country has historically and culturally been associated. In the instant case, on account of their religious beliefs, which were considered unacceptable, the 96 applicants were attacked, humiliated and severely beaten during their congregations meeting on 17 October 1999. Teir religious literature was conscated and burnt, and the applicants themselves were forced to look at the re. One of the applicants, Mr A. Khitarishvili, had his head shaved to the sound of prayers, by way of religious punishment. Having been treated in this way, the applicants were subsequently confronted with total indierence and a failure to act on the part of the authori-ties, who, on account of the applicants adherence to a religious community perceived as a threat to Christianorthodoxy,tooknoactioninrespectoftheircomplaints.Deprivedofanyremedy,the applicants could not enforce their rights to freedom of religion before the domestic courts. As the attack against the applicants on 17 October 1999 constituted the rst act of large-scale aggression against the Jehovahs Witnesses, the authorities negligence opened the doors to a generalisation of religious violence throughout Georgia by the same group of attackers. Te applicants were thus led to fear that they would be subjected to renewed violence on each fresh manifestation of their faith. Havingregardtothosecircumstances,theCourtconsidersthat,throughtheirinactivity,the relevant authorities failed in their duty to take the necessary measures to ensure that the group of Orthodox extremists led by Father Basil tolerated the existence of the applicants religious commu-nity and enabled them to exercise freely their rights to freedom of religion. Tere has accordingly been a violation of Article 9 of the Convention in respect of all 96 applicants. Te positive obligation of States to ensure the enjoyment of the freedom of reli-gionorbeliefhasthereforebeenclearlyrecognisedbytheCourt.Itfollowsa similarpatterntotheUNHumanRightsCommittee:Stateshavethedutyto ensure that the competing groups tolerate each other, they should investigate and punish oenders and provide the victims with eective remedies. In a way, espe-cially the obligation with regard to preventive measures has been formulated even more strongly by referring to the duty to ensure instead of referring to the term duediligence:thisseemstoapplythattheCourtdoesnotonlyconsiderthe extent to which the State has made an eort to prevent violations of the freedom of religion or belief but also looks at the nal results and requires from the State toensurethatsuchviolationsdonotoccurwithintheirterritory.Inpractice, however, I doubt it if the Courts statement in this case is to be interpreted liter-ally. In another case, i.e. the case of Z and Others v the United Kingdom,5 relating to the level of protection to which individual children are entitled against torture and ill-treatment (in accordance with article 3 ECHR), the Court states that the States measures should provide reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. Tis already qualies the 5 Applicationno.29392/95,Judgementof10May2001. D. de Jong / Religion and Human Rights 3 (2008) 1135States obligation. In the case of E and Others v the United Kingdom6 the Court explains that: the test does not require it to be shown that but for the failing or mission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sucient to engage the responsibility of the state. Based on these judgements a State is therefore bound to take reasonably available preventivemeasurestopreventinterferencesofwhichtheauthoritieshador ought to have had knowledge. A State does not have to take preventive measures against theobjectivelyunknown and preventive measures will not necessar-ily have to prove fully eective. B.Te Obligations of Non-State Actors Whereas the recognition of positive obligations of States in ensuring the enjoy-ment of human rights against interferences by non-State actors has been a gradual development originating in article 2 of the ICCPR itself, the idea that non-State actors can also violate human rights is much more recent. During the Cold War communist States had used the concept of duties of non-State actors in the con-text of human rights as a strategy for reducing the impact of human rights them-selves. Tus, in the main UN human rights instruments, duties are very carefully and narrowly dened. Reference can be made to article 29, paragraph 1 and arti-cle30oftheUniversalDeclarationofHumanRights.Article29,paragraph1 stipulates that everyone has duties to the community in which alone the free and full development of his personality is possible. Tis is a very vague formula that doesnotleadtoenforceableobligations.Article30statesthatnothinginthis DeclarationmaybeinterpretedasimplyingforanyState,grouporpersonany right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. Tis formula recognises the pos-sibility of interference by non-State actors, but strictly speaking only relates to the interpretation of the Declaration itself, i.e. to the scope of the human rights and fundamental freedoms dened therein. It does not go as far as to state that human rights can also be violated by non-State actors. Morerecently,however,theroleofnon-Stateactorshasbecomemoredis-tinctly recognised. One example of this is in the realm of the activities of business enterprises.TeCommissiononHumanRightsandlatertheHumanRights 6 Applicationno.33218/96,Judgementof26November2002. .6D. de Jong / Religion and Human Rights 3 (2008) 113CouncildidnotadoptthenormsdraftedbytheSub-Commission7whereitis stated in paragraph 1 that: Within their respective spheres of activity and inuence, transnational corporations and other busi-ness enterprises have the obligation to promote, secure the fullment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups. However, by appointing a Special Representative on this issue, the UN did recog-nise that the role of business enterprises vis--vis the protection of human rights deserved closer attention. Tese developments have been more straightforward in the instruments relat-ingtotheghtagainsttrackinginhumanbeings.Teannualresolutions adopted by the General Assembly on this subject contain a preambular paragraph which explicitly states that sexual violence and tracking in women and girls for purposes of economic exploitation, sexual exploitation through prostitution and other forms of sexual exploitation and contemporary forms of slavery are serious violations of human rights.8 Te paragraph does not limit its scope to actions by or on behalf of States. Tis does not come as a surprise: as most activities are car-ried out by criminal individuals and gangs not directly linked to the State, such a restriction would have deprived the paragraph of its intent. Resolutions are soft law and in themselves they do not provide a rm basis for concludingnewtrendsininternationallaw.However,theCouncilofEurope Convention on Action against Tracking in Human Beings9 contains a similar preambular paragraph stating that tracking in human beings constitutes a vio-lationofhumanrightsandanoencetothedignityandtheintegrityofthe human being. Te Explanatory Note shows that the authors of the Convention did not include this paragraph lightly, but were well aware of a consistent trend in other instruments. Paragraph 42 of the Explanatory Note states that: Te recognition of tracking in human beings as a violation of human rights appears directly or indirectly in an important number of international legal instruments and international declarations. Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence, which denes violence against women as including tracking and states that violence against women both violates and impairs or nullies the enjoyment of their human rights and fundamental freedoms. Te Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women arms, in the Preamble, that violence against women constitutes a violation of their human rights and fundamental freedoms. Te denition of violence againstwomeninArticle2ofthisConventionincludestrackingasaformofviolenceagainst 7 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2. 8 See, for example, GA Res. 55/67 of 31 January 2001. 9 CETS No. 197, 16 May 2005. D. de Jong / Religion and Human Rights 3 (2008) 1137women.TeEuropeanUnion,initsCouncilFrameworkDecisiononCombating Trackingin Human Beings of 19 July 2002 states that tracking in human beings comprises serious violations of fundamental human rights and human dignity . . .(at para 3). Treaty monitoring bodies of the United Nations, including the Human Rights Committee and the Committee on the Elimination of Discrimination against Women, have also identied tracking in human beings as a violation of human rights. Tis new legal development has yet received little attention, but has implications for the interpretation of all human rights and fundamental freedoms. If it is true that trackers violate human rights, there is no reason why, for example, people usingotherformsofviolenceagainstbelieversarenotalsoviolatinghuman rights. III.Positive State Obligations in Respect of the Freedom of Religion or Belief On the basis of the analysis in paragraph IA, States have to exercise due diligence to prevent, punish, investigate or redress the harm caused by acts by private per-sons or entities. I shall now successively look at the meaning of this in the con-text of the freedom of religion or belief especially in respect of the promotion of tolerance. A.Preventive Measures Te promotion of tolerance in matters relating to religion or belief has tradition-allybeenapriorityinUN-instrumentsrelatingtothefreedomofreligionor belief. It gures prominently in article 4 of the UN Declaration on the Elimina-tionofAllFormsofIntoleranceandofDiscriminationBasedonReligionor Belief10 which states that all States shall make all eorts . . . to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter. In view of the wider acceptance of positive State obligations, it is only logical to interpret this provision in a more binding manner. It would then read that all States have the obligation to exercise due diligence to prevent intolerance on the grounds of religion or other beliefs. Whereas there is much international debate on the type of measures that can be expected from the State in this respect, it is often forgotten that the rst step to be taken is the full and uncompromising recognition of the freedom of religion orbeliefitself.Inordertopreventprivatepersonsfrominterferingwiththe freedom of religion or belief of others, States have to emphasise the value of this human right. Tis implies that governments who question the relevance of thishumanrightfortheirsocieties,arealreadyviolatingtheirinternational 10 Proclaimed by GA Res. 36/55 of 25 November 1981. 8D. de Jong / Religion and Human Rights 3 (2008) 113obligations. In this respect I do not only refer to States with a predominant reli-gion, who may argue that in their country there is no need for freedom of religion or belief since everyone is belonging to the same religion anyway. I also refer to the fashionable debate especially in Europe where some authors hold the view that freedom of religion or belief has become irrelevant since all of its aspects have been covered by other human rights already.11 In practical terms, the State needs to take a range of preventive measures. Its obligationsarestrongestinareaswheretheStatehasdiscretionarypower.For example, in its own ocial publications the government always needs to be aware of this obligation. Te same holds for the development of school curricula, when-ever the government regards this as part of its educational policies. In other areas, it may be more dicult for the government to develop eective preventivepolicies.Aparticularlysensitiveissueisthebalancingactthatis requiredbetweenthedutytoensurethefreedomofreligionorbeliefandthe freedom of expression. Article 2 of the 1981 UN Declaration requires States to combat intolerance in general, and does not exclude the media. However, free-dom of expression can only be limited on the basis of the carefully dened limita-tion grounds of article 19 ICCPR. In practice, this conict between two human rights can best be solved by making it clear in public statements that the govern-ment is not in favour of intolerant statements, without going as far as to prohibit any such statements. Tis can (also) be based on article 19, paragraph 3, which states that the exercise of the right to freedom of expression brings with it special duties and responsibilities. B.Punitive Measures Article 2, paragraph 2 ICCPR stipulates that States must adopt such legislative or other measures as may be necessary to give eect to the rights recognized in the presentCovenant.Statesshouldthereforeadoptlegislativeorothermeasures protecting the right of freedom of religion or belief for everyone. Tis goes beyond the mere inclusion of this freedom in the Constitution. Governments should also consider what it takes to manifest ones freedom of religion or belief. Tey will need to adopt laws or regulations on the building and maintenance of places of worship, on religious education, e.t.c. States should also adopt and implement laws and regulations protecting believ-ers manifesting their freedom of religion or belief against interference by others. 11 See, for example, the article (in Dutch only) by Paul de Beer in NRC, 27 October 2007: Staat en Religie: Godsdienstvrijheid uit de Grondwet. In my thesis (supra, note *) I have tried to demonstrate that althoughtherearecertainlyimportantlinkagesbetweenthefreedomofreligionorbeliefandother human rights, there are many arguments pointing out that there is additional value in recognising this freedom. It is rather the opposite: if the freedom of religion or belief is protected, this will to a large extent ensure the protection of other human rights as well. D. de Jong / Religion and Human Rights 3 (2008) 1139Specialprovisionsondesecrationofholysitesandbuildingscomeunderthis category. Of course, also more general provisions on crimes such as murder, man-slaughter, burglary and discrimination are of relevance, insofar as the crimes have been committed against persons because of their religion or belief. Stateswhodonotprotectbelieversagainstsuchinterferences,areatriskof violating the freedom of religion or belief. Tis holds for the legislative require-mentsbutalsoforthenecessaryimplementationmeasures.Stateswillneedto make sure that law enforcement agencies give enough priority to such oences. So far, the examples given have been straightforward, but sometimes govern-ments face dicult dilemmas. One such area is the question of whether the pro-tectionoffreedomofreligionorbeliefalsorequiresblasphemylaws.Inthe Netherlands, for example, blasphemy has been made punishable by law, although this provision is not used. In Pakistan, blasphemy laws especially target one reli-giousminoritytheAhmadis.Inordertogetthisrightfromaninternational humanrightsperspective,rstlywehavetoconcludethathumanrightslaw addresses the rights of individual persons. When blasphemy is incorporated in the Dutch criminal code, it is because someone is personally aected not because we want to protect God or a religion as such. Tere has to be an identiable victim. Te underlying notion is that believers may be seriously oended by blasphemic expressions which negatively aects their freedom of religion or belief, and pos-sibly other human rights. To some extent I can see the merit of more general, non-discriminatory provi-sions prohibiting blasphemy. Considering the situation in the Netherlands, there are those who specialise in nding ways of berating the Islamic faith. For adher-entsoftheIslamicfaithintheNetherlands,thisdoesaecttheirfreedomof religion or belief, for they are nding themselves in an increasingly hostile social climate. In the end, this may put them under pressure to refrain from manifesting theirreligioninpublic.Ontheotherhand,thosewhoexpressthemselvesthis way claim that they have the right or even the duty to express their views. I am inclined to think that the solution is yet again a balancing act: it may not be nec-essary to restrict freedom of expression but at least the government can make clear thatitdisapprovesofsuchinsultsandthatitdoesnotsharetheopinionscon-cerned. Tis is also what actually happens today. It may then not be necessary or even wise to resort to law enforcement measures, as the harm done to the religious communityconcernedcantosomeextentberepairedbysuchocialgovern-mental statements. Te example of Pakistan shows that blasphemy laws can lend themselves to a discriminatory manner of implementation. Tis holds in particular if blasphemy isrestrictedtocertainreligionsorbeliefs.Inthatcaseotherreligionsorbeliefs maybeseverelyhamperedintheirfreedomtomanifesttheirreligionorbelief since the manifestations of these religions or beliefs, especially if they denounce the protected religions or beliefs, may be seen as blasphemy whereas the opposite 10D. de Jong / Religion and Human Rights 3 (2008) 113is then not true. If the protected religion manifests itself in blasphemous expres-sions,thatisnotpunishablebylaw.Inconclusion:blasphemylawsarenotin themselves necessary to protect freedom of religion or belief, but can be useful, provided that the following conditions are met: they should be formulated in such a way that they relate to the rights of indi-vidual persons and not to abstract concepts like God or religion; they have to protect adherents of all religions or beliefs in a non-discriminatory manner; theyhavetobeappliedrestrictively,i.e.,onlyiftherearenootherwaysof reducing the harm brought to believers. C.Remedial Measures In the UN, the right to remedy has been elaborated by the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Viola-tions of International Human Rights Law and Serious Violations of International Humanitarian Law, which the General Assembly adopted in 2005.12 Elements of this right can also be found in the Articles on Responsibility of States for interna-tionallywrongfulacts,whichweretakennoteofbytheGeneralAssemblyin 2001.13 Several elements have been distinguished: cessation and non-repetition: the State will have to make sure that it has taken enough precautionary measures so that it is unlikely that interferences will re-occur (e.g., punishment of the oender, but also educational and other mea-sures); reparation: e.g. nancial and other forms of reparation by the perpetrator (res-titution, compensation, satisfaction). Ishallrefrainfromgoingintoanydetailhere,sincetheacceptanceofpositive State obligations lies at the heart of these detailed instruments and does not there-fore add new insights to existing obligations in this regard. IV.Violation of the Freedom of Religion or Belief by Non-State Actors Atrst,theacceptanceoftheinsightthatnon-Stateactorscanviolatehuman rightsmayseemtohelpinfurtherclarifyingandextendingthepositiveState obligations referred to in the previous section regarding the protection of freedom of religion or belief. 12 GA Res. 60/147. 13 GA Res 56/83 of 12 December 2001. D. de Jong / Religion and Human Rights 3 (2008) 11311 For example, preventive policies are now not only necessary to promote toler-ance but also to prevent violations of the freedom of religion or belief by non-State actors. In practice, State policies will not have to dier much from the way theyhavebeendescribedinsectionIIIA.However,whereasthepromotionof toleranceisstillavagueconcept,thenumberofincidentsinterferingwiththe enjoyment of freedom of religion or belief is not. Governments who are incapable of providing enough protection against such interferences are in danger of being found to be violating international human rights law themselves. Tesameholdstrueforenforcementmeasures:violationsofhumanrights have to be punishable by law. Making it a criminal oence to interfere with the freedom of religion or belief becomes a legal obligation for the State and ineective enforcementpoliciesmayleadtotheconclusionthattheStateitselfviolates human rights law. Except in cases of crimes against humanity, no provision has been made for enforcement by the international community; and even the juris-dictionoftheInternationalCriminalCourtwithrespecttosuchcrimesonly arises if the State concerned cannot or does not want to prosecute the oender itself. Te idea that non-State actors can also violate human rights, has not yet creptintothemandatesoftheUNhumanrightsbodies.Itistobeexpected, however, that in future the Human Rights Council and the Human Rights Com-mittee may have to look into such violations. In that case, the easiest and probably least controversial way of doing so is by putting more emphasis on the (lack of ) enforcement measures by the State. Perhapsthemostimportanteectsoftherecognitionofthepossibilityof human rights violations by non-State actors are to be found in the eld of rem-edy. When the Basic Principles were drafted, the generally held view was that they were to apply to violations by States themselves. However, I cannot see why these principles would not also apply in respect of non-State actors: many aspects are common practice under the rule of law. Tis holds for the enforcement measures and for the compensation of the victims, be it by the perpetrator or by the State. At this stage it is yet dicult to grasp the full range of possible implications of this new legal development, but it is fair to say that if applied in respect of the freedom of religion or belief there may also be unforeseen negative consequences for religious communities. Whereas in the past States generally were not required to interfere with the internal aairs of religious communities, this may well have tochange,iftheideaofhumanrightsviolationsbynon-Stateactorsbecomes more dominant. Terearemanyexamplestobegivenconcerningthedilemmasforgovern-ments.Onecouldthinkof,forexample,thepositionofwomeninreligious organisations. If non-State actors can violate human rights, is it then not a viola-tion of the right to non-discrimination based on sex, if the right to celebrate mass is conned to men? Te general jurisprudence in these cases used to be based on theconsiderationofwhethertherearealternativeinstitutionsforbelieversto 12D. de Jong / Religion and Human Rights 3 (2008) 113whichtheycanturn:theideaisthatyoudonothavetobelongtoareligious organisation with this policy. It remains to be seen, however, if this jurisprudence can be maintained in future. In my opinion, the ease with which the international community has accepted that tracking in human beings is a violation of human rights, is remarkable. Te consequencesofthisstepforwhatusedtobetheinternalaairsofreligious communities have yet to be identied, but a State who wants to restrict the free-dom to manifest ones religion or belief in public or in private, alone or in com-munity with others, can now argue that it is simply implementing its policies to prevent human rights violations from taking place. Although the argument holds both ways, and can also help in strengthening the position of religious and belief communities to be protected from interference by other non-State actors, I am afraid that at times when the freedom of religion or belief is under attack, the net eectofthisdevelopmentwillbetodiminishthisfreedomratherthanto strengthen it. V.Conclusion Te recent developments concerning positive State obligations, also in respect of non-State actors can help in providing guidance in dicult matters such as the relationshipbetweenfreedomofexpressionandfreedomofreligionorbelief. Instead of seeking refuge to article 20 ICCPR which prohibits advocacy of, inter alia,religioushatredthatconstitutesincitementtodiscrimination,hostilityor violence, States can now refer to a policy aimed at the prevention of violations of human rights by non-State actors. However, the bottom line remains the same: evenifcertainexpressionsmayundermineandinthelongertermviolatethe freedom to manifest ones religion or belief States also have to protect freedom of expression. From the outset it is important to realise that what can help in defending the freedom of religion or belief, may also be used against it. Whereas many religious communities may welcome the additional protection against interference by non-State actors, at the same time they may also become exposed to State interference with matters which thus far were considered their own internal aairs. Even reli-gious expressions may come under scrutiny, as we already witness with regard to sermons that are deemed to support violence or terrorism, because they are seen as violating the human rights of others. Te danger exists that in the end it may well depend on the power of the vari-ous lobbies, which human right will prevail: in a secularised society, the voice of the free media may prove to be more powerful than the voice of religious minor-ities. If society is unfamiliar with the religious precepts of those minorities, the prevailing trend may well be to ask the State to interfere with their religious prac-D. de Jong / Religion and Human Rights 3 (2008) 11313tices instead of protecting the rights of these minorities. Te international com-munitythereforehastoremainvigilanttothesenewdevelopments,andstand readytocondemnviolationsofthefreedomofreligionorbeliefandtoaccept limitationsonlyinsofarasthelimitationgroundsofarticle18,paragraph3 ICCPR have been met. Ever since it proved so dicult to reach agreement on the 1981 UN Declara-tion, both States and academics have argued that it is too risky an enterprise to elaborate a Convention on the Freedom of Religion or Belief. Tat may still be true,butinviewofthenewlegaldevelopmentsdiscussedinthisarticlemore guidance on the scope of this freedom, not only vis--vis the State but also towards non-State actors is quickly proving necessary. More generally, the implications of the idea that non-State actors can violate human rights, have to be examined by the international community. In the case of what are generally considered crimi-nal oences, such as tracking, this may be relatively straightforward, but espe-cially in cases where more than one human right is involved, further guidance by, for example, the Human Rights Committee is called for.