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APPENDIX 2

TITLE AND PREAMBULAR PARAGRAPHS OF THE DRAFT DECLARATION, AS

FINALLY APPROVED BY THE COMMISSION DURING ITS 30TH AND 35TH SESSIONS

DRAFT DECLARATION ON THE ELIMINATION OF ALL FORMS OF INTOLERANCE AND

OF DISCRIMINATION BASED ON RELIGION OR BELIEF (1) Considering that one of the basic principles of the Charter of the United Nations is that of the dignity and equality inherent in all human beings, and that all States Members have pledged themselves to take joint and separate action in co-operation with the Organization to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,

(2) Considering that the Universal Declaration of Human Rights and the International Covenants on Human Rights proclaim the principles of non-discrimination and equality before the law and the right to freedom of thought, conscience, religion and belief, including the right to choose, manifest and change one's religion or belief,

(3) Considering that the disregard and infringement of human rights and fundamental freedoms, in particular of the right to freedom of thought, conscience, religion or belief, have brought, directly or indirectly, wars and great suffering to mankind, especially where they serve as a means of foreign interference in the internal affairs of other States and amount to kindling hatred between peoples and nations,

(4) Considering that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed,

(5) Considering that it is essential to promote understanding, tolerance and respect in matters relating to freedom of religion and belief and to ensure that the use of religion or belief for ends inconsistent with the Charter of the United Nations, other relevant instruments of the United Nations and the purposes and principles of the present Declaration is inadmissible,

(6) Convinced that freedom of religion and belief should also contribute to the attainment of the goals of world peace, social justice and friendship among peoples and to the elimination of ideologies or practices of colonialism and racial discrimination,

(7) Noting with satisfaction the adoption of several and the coming into force of some conventions, under the aegis of the United Nations and of the specialized agencies, for the elimination of various forms of discrimination,

(8) Concerned by manifestations of intolerance and by the existence of discrimination in matters of religion or belief still in evidence in some areas of the world,

(9) Resolved to adopt all necessary measures for the speedy elimination of such intolerance in all its forms and manifestations and to prevent and combat discrimination on the ground of religion or belief.

(41)

TEXT OF COMMISSION RESOLUTION 20 (XXXV), ALONG WITH THE

FIRST THREE ARTICLES OF THE DRAFT DECLARATION, AS APPROVED BY THE COMMISSION AT ITS 35TH SESSION

20 (XXXV). DRAFT DECLARATION ON THE ELIMINATION OF ALL FORMS OF INTOL

ERANCE AND OF DISCRIMINATION BASED ON RELIGION OR BELIEF 1

The Commission on Human Rights,
Bearing in mind General Assembly resolution 33/106,

Taking note the report of the working group on the draft declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief (E/CN.4/WG.4/WP.1),

1. Notes that the Working Group achieved far-reaching agreement on several substantive aspects of the first articles of the draft declaration but was unable to reach consensus on the question of submission of draft articles to the Commission for adoption;

2. Decides to adopt, on the basis of those proposals on which there was farreaching agreement, the draft articles contained in the annex to the present resolution;

3. Requests the Secretary-General to invite UNESCO to organize a collective consultation, embracing various established schools of religious thought, on the cultural and religious basis of human rights in relation to the phenomenon of religious intolerance, and to submit the conclusions reached by this consultation to the Commission at its thirty-sixth session;

4. Decides to continue at its thirty-sixth session the elaboration of the remaining articles of the draft declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief;

5. Decides also to again establish the open-ended working group at its thirtysixth session and to allot more time to the working group in order that it may complete its task at that session.

ANNEX

ARTICLE I

1. 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.

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

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

ARTICLE II 1. No one shall be subject to discrimination by any State, institution, group of persons or person on grounds of religion or other beliefs.

2. For the purpose of this Declaration, the term “discrimination and intolerance based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect the nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

1 Adopted at the 1,522d meeting, on Mar. 14, 1979, by a rollcall vote of 19 in favor, none against and 13 abstentions.

(42)

ARTICLE DI

Discrimination between human beings on grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the international covenants relating to human rights, and as an obstacle to friendly and peaceful relations between nations.

TEXT OF DRAFT INTERNATIONAL CONVENTION AGAINST TORTURE AND

OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, AS SUBMITTED BY THE DELEGATION OF SWEDEN TO THE 34TH SESSION OF THE COMMISSION

1

DRAFT INTERNATIONAL CONVENTION AGAINST TORTURE AND OTHER CRUEL,

INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

[Preamble to be elaborated]

ARTICLE 1

1. For the purpose of the present Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

ARTICLE 2

1. Each State Party undertakes to ensure that torture or other cruel, inhuman or degrading treatment or punishment does not take place within its jurisdiction. Under no circumstances shall any State Party permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

ARTICLE 3 Each State Party shall, in accordance with the provisions of the present Convention, take legislative, administrative, judicial and other measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.

ARTICLE 4

No State Party may expel or extradite a person to a State where there are reasonable grounds to believe that he may be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment.

1. Each State Party shall ensure that education and inform tion regarding the prohibition against torture and other cruel, inhuman or degrading treatment or punishment are fully included in the curricula of the training of law enforcement personnel and of other public officials as well as medical personnel who may be responsible for persons deprived of their liberty.

1 This text served as the working text for the Commission's working group, which met prior to and during the 35th session of the Commission.

(44)

2. Each State Party shall include this prohibition in the general rules or instructions issued in regard to the duties and functions of anyone who may be involved in the custody or treatment of persons deprived of their liberty.

ARTICLE 6

Each State Party shall keep under systematic review interrogation methods and practices as well as arrangements for the custody and treatment of persons deprived of their liberty in its territory, with a view to preventing any cases of torture or other cruel, inhuman or degrading treatment or punishment.

ARTICLE 7

1. Each State Party shall ensure that all acts of torture as defined in article 1 are offences under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.

2. Each State Party undertakes to make the offences referred to in paragraph 1 of this article punishable by severe penalties.

ARTICLE 8

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offenses referred to in article 7 in the following cases:

(a) when the offences are committed in the territory of that State or on board a ship or aircraft registered in that State;

(b) when the alleged offender is a national of that State; (c) when the victim is a national of that State.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over these offenses in cases where the alleged offender is present in its territory and it does not extradite him pursuant to article 14 to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

ARTICLE 9

Each State Party shall guarantee to any individual who alleges to have been subjected within its jurisdiction to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of its public officials, the right to complain to and to have his case impartially examined by its competent authorities without threat of further torture or other cruel, inhuman or degrading treatment or punishment.

ARTICLE 10

Each State Party shall ensure that, even if there has been no formal complaint, its competent authorities proceed to an impartial, speedy and effective investigation, wherever there is reasonable ground to believe that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed within its jurisdiction.

ARTICLE 11 1. Each State Party shall, except in the cases referred to in article 14, ensure that criminal proceedings are instituted in accordance with its national law against an alleged offender who is present in its territory, if its competent authorities establish that an act of torture as defined in article 1 appears to have been committed and if that State Party has jurisdiction over the offense in accordance with article 8.

2. Each State Party shall ensure that an alleged offender is subject to criminal, disciplinary or other appropriate proceedings, when an allegation of other forms of cruel, inhuman or degrading treatment or punishment within its jurisdiction is considered to be well founded.

ARTICLE 12

Each State Party shall guarantee an enforceable right to compensation to the victim of an act of torture or other cruel, inhuman or degrading treatment or punishment committed by or at the instigation of its public officials. In the

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