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Some reflections from LATIN AMERICA, a continent of immigrants and Uruguay, a country of asylum THE RELIGIOUS DIMENSION OF THE REFUGEE ISSUES

Carmen Asiaín Pereira

President, Latin American Consortium for Freedom of Religion Preliminary statement Religious beliefs brought by migrants pose challenges which contribute to human advancement in the end. Being the issue of migration a vivid issue in the northern hemisphere, where cross-border conflicts, political, ideological or religious persecution, the magnitude of war and even extreme poverty are leading populations to leave their soils in the search for a safer living for them alone and also for their families, the south hemisphere, and particularly Latin America is not alien to the refugee and asylum seeking phenomena. In fact, not only do the effects of that crisis impact on our continent, where some refugees have found asylum; but we also experience our own migrating movements, caused by a series of motives similar or not to those suffered in Europe, Asia and northern Africa. Human migration is as old and humankind, connatural to man. From the beginning of times –from the expulsion of the first man and woman from the Garden of Paradise-, it has implied adaptation of the migrant to the new environment and viceversa, accommodation of the receiver culture to the immigrant, challenging both poles of the new relationship. When dealing with religious rights and freedom from a Human Rights respectful perspective, it is clear that this mutual adaptation should never imply the obligation for the migrant to abandon his beliefs, nor his power to impose his worldview to the shelter-providing community in a way that it implies denying its own religion or beliefs. So migration of the diverse pose challenges for both sides, as it implies the encounter of diversity. When one of the parties has the power to dominate the other, the response to these questions vary in a range that goes from the undesirable repulsion of the alternate –either forbidding his entry, submitting his will, neglecting his rights and even engaging in frontal persecution of those opposed to the main flow- to suspicion, relegation of the “intruder” to ghettos, or mere tolerance, indifference towards the diverse. When the attitude of the dominant party has been led by open-mindedness and the will to incorporate these recently arrived human beings, the process of adaptation necessary to harmonize the different worldviews has always meant a cultural enrichment, a progress in knowledge and human promotion in most cases, and even in science in some specific cases we will underline. Awareness of the alter, teaches our fellow men to be better human beings. As a rule, the search for solutions to provide protection to diversity humanizes peoples and cultures. Many if not most of the human progress in one culture has had its origin in other culture, being brought by immigrants. This is true in the fields of ideas –from Greece to the French Revolution-, of human sciences –writing being the prototype example-, of exact sciences –numbers being provided by Arabic culture- scientific discoveries -, and even in the fields of food and cookery, just

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to provide some very small examples of the vast migration of knowledge across the globe. The encounter with the alter has frequently been the starting point of human development in one or more areas and is therefore always beneficial to the human race in the end. The Christian notions of inherent human dignity and the principle of equality between human beings have contributed to develop a Human Rights doctrine and along with other factors, have provided the foundations for slavery abolition, equity between sexes, labour law and social security. Similar roots may be found in Judaism, Islam and other religious doctrines engaged in human promotion, which have contributed to the notions of pacific resolution of disputes and mediation, the rule of law, care for the environment and the value of the family. Oriental teachings and practises have taught the world disciplines such as meditation, self-control respect for the other creatures of nature. In general, diverse religious traditions have enhanced the concept of transcendence, which makes man aware of his limitations and projects him in the pursuit to excel himself and his fellows. Just to provide some very specific examples, conscientious objection of Jehovah’s Witnesses to blood transfusion has accelerated the discovery of alternate therapies, which may be safer because they do not entail the risks of handling blood. In this case, religious belief has directly contributed to scientific advancement. Dietary requirements from Jews and Muslims refusing to ingest some given animals or without a proper ritual slaughter, have thrown light on the dangers implied in careless handling of these species when served as food. The same as regards the prohibition to ingest alcohol, stimulants and other substances, held by several religious groups, such as Muslims, Mormons and other Christian churches, has contributed to awareness of their potential harming effects. Jehovah’s Witnesses’ conscientious objection to military service and to civic oaths, have opened the minds of jurists, law-makers and judges, making them sharpen their ingenuity to find reasonable accommodation. In the area of bioethics conscientious objection to genetic manipulation and other opposed practises have enlightened scientists and decision-makers about the sacredness of human dignity and integrity. As regards abortion, “there is a consensus that abortion is a social evil which should be prevented”1, even for pro-choice promotors, so the contribution of religiously grounded conscientious objection to the practise not only has achieved religious freedom by the means of protecting the objector’s freedom to conduct his civil life in accordance with their beliefs, but it has also been a saving life instrument, as it creates moral awareness about the nature of abortion in itself. Our view is that by persuading or compelling us to find solutions to accommodate diversity, migration makes us more humanized. The religious dimension of refugee protection What does the refugee issue have to do with Freedom of Religion or Belief? A lot, and from many perspectives. Religion might be the cause of asylum seeking when the followers of a given religion engage in persecution of the dissenter; or it may provide the 1 “Hay consenso en que el aborto es un mal social que hay que evitar”, extract from the text of the veto introduced by President of Uruguay Tabaré Vázquez to stop the law on legalization of abortion, 2008, available at …………. Translation by the author

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humanitarian response to refugees; in any case and form a Human Rights perspective, religious rights ought to be respected; and additionally, religious agents and institutions have been main characters in all these aspects. So there is a very close relation between religions and refugee issues. Some sources indicate that the right to asylum was generated in the beginnings of Christianity, when temples were considered inviolable places of asylum2. However, under the conviction that it must have started much earlier, and after analysing the meaning of familiar terms, such as “sanctuary”, we find that this refers to a place of refuge or safety where people shelter in the imminence of danger. “Sanctuary, noun, UK /ˈsæŋk.tʃʊə.ri/; US /-tʃu.er.i/, [C usually singular, U] protection or a safe place, especially for someone or something being chased orhunted: Illegal immigrants found/sought/took sanctuary in a local church. The chapel became a sanctuary for the refugees”3. Going more deeply into this issue, we discover after re-reading the Ancient Greek myth of Cassandra during the War or Troy, that she had been attacked by Ajax, a Greek soldier, while she had taken shelter at the temple of Athena, a sanctuary which Ajax violates4. And looking at the sacred book common to the three main monotheistic religions, the Bible, we find that, as in English, where the word "sanctuary" can sometimes refer to a "refuge", there are two instances where the Lord refers to himself metaphorically as the "sanctuary" (i.e., refuge) of faithful Israelites in distress ( Isa 8:14 ; Ezek 11:16 ). The more abstract term qodes ("holiness, sacredness") also many times refers concretely to a "holy place" (e.g., Exod 30:13 )5. And very often, have the chosen people sheltered in the tabernacle, as in King James Bible, “I will abide in thy tabernacle for ever: I will trust in the covert of thy wings. Selah” and in the English Revised Version, “I will dwell in thy tabernacle for ever: I will take refuge in the covert of thy wings. Selah”6. Many significant bible stories describe exile because of religious persecution or for religious reasons –starting by the expulsion of Paradise, followed by Cain’s errant life, Joseph in Egypt, the exodus, the exile in Babylon, and Mary and Joseph’s flight to Egypt-. So asylum and refuge, and even migration, are very closely related to religion. Holy places are places of shelter or haven, respected as so even by the persecutor. From another perspective, religion provides asylum, not only to guard physical but also moral integrity and the mind and soul. Religious persecution may be the cause of exile. And again, religion may be the main provider of relief. And all these factors ought to be taken into account from a human rights respectful perspective, including freedom of religion or belief of all 2 Acercamiento a los Derechos Humanos. Migración Niñas, Niños y Adolescentes, Manual 2005, Defensa de Niñas y Niños Internacional Sección Costa Rica, available in Spanish at http://www.dnicostarica.org/wp-content/themes/sahifa/derechos-humanos/acercamiento-a-los-derechoshumanos-migracion-ninas-ninos-y-adolescentes-manual2005.pdf 3 Cambridge Dictionaries, http://dictionary.cambridge.org/dictionary/english/sanctuary 4 Ajax violates Cassandra's sanctuary at the Palladium: tondo of an Attic cup, ca. 440–430 BCE. During the battle, a Greek soldier known as Ajax the Lesser* raped Cassandra in the temple of Athena*. Read more: http://www.mythencyclopedia.com/Ca-Cr/Cassandra.html#ixzz3pcsDAiJ4. During the Trojan War, Cassandra, the daughter of King Priam of Troy, was attacked by Ajax the Lesser in the Temple of Athena. 5 Source: http://www.biblestudytools.com/dictionary/sanctuary/ 6 Source: http://bibliaparalela.com/erv/psalms/61.htm

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the involved. Let us take a look at the Latin American legal framework as regards the religious dimension of refuge and asylum. Legal framework in Latin America: a continent of immigrants Whether the first humans in the Americas were originated in the continent or they migrated from eastern Africa crossing the Bab el Mandeb bridge or strait in tiny boats, then crossing the Indian Ocean -the probable route of the most memorable journey in human history- or going through the Arabic Peninsula and then Asia, setting out “on a decamillennial journey that spanned continents and land bridges and reached all the way to Tierra del Fuego, at the bottom of South America”7, is still a question with more than one only answer. In either way, the Americas are (or is) a continent of immigrants, since its “discovery” by the west, receiving peoples of many nations which have founded and continue to build its society. With focus in Latin America –the roundabouts of our investigation-, we believe that it is in its multicultural heterogeneity, its religious diversity and its multinational societies as a result of permanent immigration, where we may find the explanation as to the question why Latin America is regarded as a continent of pacific religious coexistence. We have become so used to living side by side with the diverse, that we have learnt how to and have no crucial problems when conciliating religious difference. The European discoverer found a vast sampler of religious pluralism in its encounter with native peoples. Apart from the Spanish and Portuguese Crowns which brought the Christian Cross as a sign of colonization, later immigrants from other places were very frequently escaping from religious hostility or open persecution. Not only members of historic protestant churches, but also minority Christian beliefs –some looking for the religious tolerance they could not enjoy in their countries, such as Mennonites and later, Mormons, Seventh Day Adventists and Jehovah’s Witnesses. Armenian, Greek and Russian Orthodox churches coexisted later in time with neo-Pentecostals of Brazilian origin. The sampler includes variants from Caribbean belief traditions in their areas of influence. A particularity of Latin American religious spectrum is the ingredient of African cults (brought by African natives submitted to slavery), mingled with native Latin American faiths and including Catholic ingredients, giving place to the emergence of syncretism. Later on, during the first quarter of the XX Century, additional migration flows of Jews took place, as well and as of Muslims fleeing from the late Ottoman Empire, Syrians, Lebanese and also Sephardi Jews8, as well as Armenians of different religious denominations. If we add the number of devout believers escaping from the Russian revolution and the massive exile of Jews evading the Holocaust later on in the past Century, then the religious Latin American landscape becomes more complete. At

7 The Migration History of Humans: DNA Study Traces Human Origins Across the Continents in SCEINTIFIC AMERICAN, available at http://www.scientificamerican.com/article/the-migration-history-of-humans/, visited 10/25/2015 8 According to Islam expert Susana Mangana, in Uruguay, till 1925, there was a significant immigration flow coming from the last throes of the Turk-Ottoman Empire… they were Syrians, Lebanese and also Sephardi Jews escaping from Turkey. Source: Lo que sí hay que saber de los refugiados sirios, in CARAS Y CARETAS, Aug., 5th, 2015, available at http://www.carasycaretas.com.uy/lo-que-si-hay-que-saber-de-los-refugiados-sirios/, visited 10/25/2015, translation by the autor.

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present Latin America is receiving refugees from Syria –amongst other regions- and the challenge for religious adaptation in order to coexist in peace is still pressing. This fact of being a continent of immigrants –not only since its western birth but also during its continuous flow nowadays- also explains Latin America’s open door attitude towards immigration, as embodied by its legal framework. We will only deal with Latin American treaties on refugees in the part that they are concerned with religious rights. A first analysis of the Inter-American instruments in the field of refugees indicates that the terms “asylum” and “refuge” are used indistinctly and are exchangeable. In fact, in Latin America both terms may be considered absolute synonyms9. As for diplomatic asylum -sometimes called political-, GROS ESPIELL assures that it is a typical Latin American institution, which is only conventionally regulated in our continent10. Regarding it, Emperor Charles V is remembered to have said: May the homes of the Ambassadors serve as inviolable asylums, as the temples of the gods formerly did, and may no one be allowed to violate this asylum, whatever pretext may be invoked”11. It is not our purpose to describe the juridical sources, regulations nor terminological differences between these terms. Instead, our focus will be set on their common foundations and especially on the common aim of their protection, based on the right of every human being to seek for asylum or refuge. GROS ESPIELL outlines that the Caracas Convention on 1951, for instance, which provides the concept of refugee, takes the fact of persecution in itself into account, and also the person’s well-founded fear of being persecuted by some given causes. Main Treaties, Conventions and Declarations Since the early Treaty on International Penal Law, adopted by the First South American Congress on Private International Law in Montevideo on 23 January 1889, and revised on March 19 1940, in Montevideo, Uruguay12, the principles of non- extradition of refugees13, of unilateral qualification of the crime by the asylum provider State and the principle of the most favourable interpretation in the benefit of the refugee14, are established.

9 MANSILLA, C., La Tradición de Asilo en el Uruguay, available at http://segib.org/colaboraciones/files/2010/09/Uruguay-La-tradicion-de-asilo-en-el-Uruguay.pdf , visited 10/25/2015, citing GROS ESPIELL’S opinion 10 GROS ESPIELL, H. Análisis jurídico comparativo de las legislaciones sobre asilo en América latina y los instrumentos internacionales y regionales, in Instituto Interamericano de Derechos Humanos, Serie: Estudios Básicos de Derechos Humanos, Vol. V, available at http://biblio.juridicas.unam.mx/libros/4/1839/14.pdf 11 Quotation by MANSILLA, C., op.cit., p. 2, translation by the author 12 Treaty on International Penal Law, 23 January 1889 revised 19 March 1940, Montevideo Uruguay, article 15, available at http://www.refworld.org/docid/3ae6b3781c.html and in Spanish at OAS: https://www.oas.org/dil/esp/Tratado_sobre_Derecho_Penal_Internacional_Montevideo_1889.pdf 13 Article 15: No offender who has taken refuge in the territory of a State shall be surrendered to the authorities of any other State except in compliance with the rules governing extradition. 14 Article 23: Political offenses, offenses subversive of the internal or external safety of a State, or common offenses connected with these, shall not warrant extradition. The determination of the character of the offense is incumbent upon the nation upon which the

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As for religious freedom protection, Article 22 establishes that “No person shall be delivered up on extradition proceedings when the offense charged is one of the following: Duelling; Adultery; Slander and libel; Crimes against worship. ¶ But common (non-political) offenses connected with any of the above named shall warrant the extradition of the offenders. The Convention on Political Asylum15 [Diplomatic Asylum in terms of GROS ESPIELL], adopted in Montevideo, Uruguay on December, 26th, 1933 repeats the principle of unilateral qualification of the crime by the receiver State (art. 216) and so does the Treaty on Asylum and Political Refuge adopted in Montevideo, August 193917, article 318. The first of these two also illustrates on the humanitarian nature of the institution of asylum, because of which it is not subject to reciprocity (art. 319). The AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN, adopted in Bogotá, Colombia, 194820) after affirming in its Preamble that “The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality”, proclaims the right to asylum as a human right in article XXVII: “Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.” The 1951 Refugee Convention21 (UNO) and its 1967 Protocol (which removed geographical and temporal restrictions from the Convention) are also applicable in our region, and are part of the International Law on Asylum and Refugees. The Convention starts by considering its “profound concern for refugees”, a reason why it is “endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms”, for which international co-operation is essential, “recognizing the social and humanitarian nature of the problem of refugees”, appeals to solidarity. On defining the term “refugee”, the Convention includes those which who have been persecuted or fear persecution for reasons of religion, amongst demand for extradition is made; and its decision shall be made under and according to the provisions of the law which shall prove to be most favourable to the accused. 15 Convention on Political Asylum, available at http://www.oas.org/juridico/english/treaties/a-37.html 16 Article 2 The judgment of political delinquency concerns the State which offers asylum 17 Treaty on Asylum and Political Refuge adopted in Montevideo, Uruguay, 4 August 1939, available at: http://www.refworld.org/docid/3ae6b3833.html 18 Article 3 Asylum shall not be granted to persons accused of political offenses, who shall have been indicted or condemned previously for common offenses, by the ordinary tribunals. The determination of the causes which induce the asylum appertains to the State which grants it. Asylum may not be granted to deserters from the sea-, land-, or air forces, except when the act is clearly of a political character. 19 Article 3 Political asylum, as an institution of humanitarian character, is not subject to reciprocity. Any man may resort to its protection, whatever his nationality, without prejudice to the obligations accepted by the State to which he belongs; however, the States that do not recognize political asylum, except with limitations and peculiarities, can exercise it in foreign countries only in the manner and within the limits recognized by said countries. 20 AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN (Adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948), available at https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm 21 The UNO 1951 Convention relating to the Status of Refugees & 1967 Protocol, available at http://www.unhcr.org/3b66c2aa10.html

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others (art. 122). Article 3 establishes the principle of non-discrimination as to race or religion, amongst others. Article 4 deals directly with Freedom of Religion or Belief, compromising the contracting States to accord it to refugees to the same extent –at least- as granted to nationals, and specifically in regard to religious education of their children23. It forbids expulsion or return of refugees to the frontiers of territories where they would be in danger on account of their race or religion, amongst other causes (article 3324). The later 1967 Protocol amplifies the protection by extending the definition of the term “refugee” with no temporal or geographical limits. The CONVENTION ON TERRITORIAL ASYLUM, Caracas, Venezuela, 195425 mentions “persecution for their beliefs” (article 226) as one of the possible causes of asylum seeking and grants refugees, over which the States have jurisdiction. Article VII extends Freedom of expression of thought (which includes expression of religious ideas) to refugees and asylees, provided they do not constitute systematic propaganda to incite violence against the government of the complaining state27. Similar protection is given to freedom of assembly or association (including religiously motivated), and the same limits are established (article VIII28). Article XI embeds the principle of unilateral determination of the solicited state for granting a request29. 22 Article 1: “For the purposes of the present Convention, the term “refugee” shall apply to any person who: … (2) As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” 23 Article 4 Religion “The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.” 24 Article 33 “prohibition of expulsion or return (“refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. …..” 25 CONVENTION ON TERRITORIAL ASYLUM, signed in Caracas, March 28th, 1954, available at http://www.oas.org/juridico/english/treaties/a-47.html 26 Article II “The respect which, according to international law, is due the Jurisdictional right of each State over the inhabitants in its territory, is equally due, without any restriction whatsoever, to that which it has over persons who enter it proceeding from a State in which they are persecuted for their beliefs, opinions, or political affiliations, or for acts which may be considered as political offenses.” 27 Article VII “Freedom of expression of thought, recognized by domestic law for all inhabitants of a State, may not be ground of complaint by a third State on the basis of opinions expressed publicly against it or its government by asylees or refugees, except when these concepts constitute systematic propaganda through which they incite to the use of force or violence against the government of the complaining State”. 28 Article VIII “No State has the right to request that another State restrict for the political asylees or refugees the freedom of assembly or association which the latter State's internal legislation grants to all aliens within its territory, unless such assembly or association has as its purpose fomenting the use of force or violence against the government of the soliciting State.” 29 Article XI “In all cases in which a complaint or request is permissible in accordance with this Convention, the admissibility of evidence presented by the demanding State shall depend on the judgment of the solicited State.”

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The CONVENTION ON DIPLOMATIC ASYLUM (or political asylum) signed simultaneously with the prior30, defines several locations as dwelling places, and proclaims the right of every State to grant asylum or not, as the right to determine the nature of the offense or the motives of persecution, reiterating the same veteran principle as the treaties that precede it. The AMERICAN CONVENTION ON HUMAN RIGHTS (San José, Costa Rica, 22 November 1969)31 refers to the question since its Preamble by “Recognizing that the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states;”. As for the protection of Freedom of Religion or Belief in general, it is provided by article 12:

Article 12. Freedom of Conscience and Religion: 1. Everyone has the right to freedom of conscience and of religion.

This right includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private.

2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

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

4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.

Article 22 addresses the issue of asylum and refuge in 9 paragraphs, when it unconditionally proclaims Freedom of Movement and Residence32, both within the borders of his country or outside its frontiers. Paragraph 2 states: “2. Every person has the right to leave any country freely, including his own.”

30 CONVENTION ON DIPLOMATIC ASYLUM, Caracas, Venezuela, March, 28th, 1954, OAS (poner en todas), available at http://www.oas.org/juridico/english/treaties/a-46.html 31 AMERICAN CONVENTION ON HUMAN RIGHTS, Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969, OAS, available at: http://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm 32 Article 22. Freedom of Movement and Residence. … 2. Every person has the right to leave any country freely, including his own. 3. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent necessary in a democratic society to prevent crime or to protect national security, public safety, public order, public morals, public health, or the rights or freedoms of others. … 5. No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it. 6. An alien lawfully in the territory of a State Party to this Convention may be expelled from it only pursuant to a decision reached in accordance with law. 7. Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes. 8. In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions. 9. The collective expulsion of aliens is prohibited.”

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The only legitimate restrictions to these rights are those established by law, and only “to the extent necessary in a democratic society to prevent crime or to protect national security, public safety” or other values, “or the rights or freedoms of others.” (paragraph 3). Expulsion of a national from his country is forbidden, as is deprivation of his right to enter it (paragraph 5). If the person is a legal alien, expulsion will only be legitimate if it is “pursuant to a decision reached in accordance with law” (paragraph 6). The most clear and plain recognition of the right of asylum seekers is provided by paragraph 7 as it states that “Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes.” Although some margin of discretion is left to the decision of the receiving State, the scope of the principle as proclaimed is very vast. Following the traditional trend, the norm also prohibits deportation when it entails danger of violation of the life or personal freedom of the refugee “because of his race, nationality, religion, social status, or political opinions” (paragraph 8). “The collective expulsion of aliens is prohibited”, as mandates paragraph 9. What seems particular as regards freedom of religion or belief, is that both dimensions, “individually or in community with others” are considered. However, the collective dimension seems to be granted a more powerful and unlimited guarantee, if we take into account that deportation of one individual may be legitimate under certain circumstances, but collective expulsion is prohibited no matter what justifications may be argued. If we think of these kinds of collective deportations in history, we find out that most of them have occurred for religious or religiously-related reasons, a motivation which the Convention tries to prevent. Finally the Cartagena Declaration on Refugees of 198433, though a non-legally binding instrument since it is not a treaty or convention, is –in terms of GROS ESPIELL- “a spontaneous and atypical source of Law, since it constitutes a savage costume, of regional character”… “an atypical and sui generis act of law which has come to acquire legal force and validity as a source of International Law” as “Latin American regional customary Law”. Amongst others, it urges “non-governmental, international and national organizations to continue their worthy task, co-ordinating their activities with UNHCR and the national authorities of the country of asylum, in accordance with the guidelines laid down by the authorities in question” (Conclusion 14). The Declaration of Tlatelolco on Practical Actions in the Rights of Refugees in Latin America and the Caribbean (1999)34 –presumably of the same nature as the Cartagena Declaration- outstands because it recommends, amongst others, that practical understanding and dialogue be fostered and protection networks and structures be designed with the complementary participation of governments, State institutions, churches and NGOs to guarantee the effective exercise of the right to asylum (Recommendation Four, 33 Cartagena Declaration on Refugees adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia from 19 - 22 November 1984, available at https://www.oas.org/dil/1984_Cartagena_Declaration_on_Refugees.pdf 34 Adopted at the Regional Seminar on Practical Actions in the Rights of Refugees, assembled in Mexico City in May, 10-11, 1999.

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Part III). As GROS ESPIELL outlines, these principles established by the Law on Refugees, are no other than the fundamental principles of Human Rights Law at the base of Humanitarian Law, which inform and provide the foundations and sense of the Law on Refugees, and which exist both in General International as in Regional Latin American Law. They do not set up against each other. But neither do they overlap, as a consequence of an absolute identity between them, being however, coincident with each other in essence and being reciprocally complementary. The general principles of Human Rights are part of the Law on refugees and no problem related to asylum and refuge may be faced nor resolved without taking these principles into account. In this sense, “Latin America makes present a privileged situation”35, he argues. Uruguay, a country of asylum A rich historical background and legal framework “Our country has developed a formal tradition in the practise of asylum since the beginning of its history as a State. In 1961 Portuguese Ambassador Carlos FERNANDES, sustained that Uruguay was one of the countries which more generously had granted it, till the moment.”36 Even before being constituted as a State, the practise of asylum in what is now Uruguay, had different manifestations in the territory known as the “Banda Oriental” (the Western Strip), as MANSILLA outlines. For the matter of our interest, religious asylum was one of the first to receive legal protection. Governor Del Pino in 1774 issued a decree establishing that the right to grant asylum in Montevideo and the rest of the eastern territories of the River Plate, was only reserved to the Roman Catholic Main Church (today the Cathedral) of Montevideo, which would also have local immunity37. This type of asylum, consolidated by the last part of the IV Century, was the first form in which this institution was made evident and was ever regulated, as Ambassador FERNANDES outlines. “The Church, humanitarian and patient, fought in favour of the right of religious asylum till present times. But religious asylum, in spite of the resistance exercised by the Church, would almost disappear, in the XVIII Century; the State had won supremacy in the struggle between the secular and the ecclesiastical powers.”38 There were other examples of Uruguay’s positive attitude towards asylum in history, having received the slaves who had escaped from alien lands (mainly under the rule of the Ottoman Empire) and had entered Spanish territory (including the Americas, we may add), to whom freedom was additionally granted as mandated by Royal Decree of 178939. This is only one more illustration of Uruguay’s constant posture towards a

35 GROS ESPIELL, H., op. cit 36 MANSILLA, C., La Tradición de Asilo en el Uruguay, op. Cit, p. 1, quoting FERNANDES, C., El Asilo Diplomático, Ed. JUS, Mexico, 1970, p. 46, translation by the autor. 37 MANSILLA, C. op. Cit., p. 3, quoting VIEIRA, M.A., Derecho de Asilo Diplomático, Biblioteca de Publicaciones oficiales de la Facultad de Derecho y Ciencias Sociales de la Universidad de la República, Montevideo, 1961, p. 402, translation by the author. 38 FERNANDES, C., El Asilo Diplomático, quoted by MANSILLA, C., op. Cit., p. 3, translation by the autor 39 VIEIRA, M.A., Derecho de Asilo Diplomático, quoted by MANSILLA, C., op. Cit., p. 3, translation by the author

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comprehensive concept of the right of asylum, sustaining that it is a right of the individual and not a power of the State, as VIEIRA underlines. In fact, the Uruguayan delegation (represented by the Uruguayan Law specialist IRURETA GOYENA) to the II Congress of Private International Law which finally signed the Treaty on Political Asylum and Refuge of 1939, had objected to the phrasing “Asylum may be granted” which ultimately became article 1, and stood for the more favourable phrasing “Asylum will be granted”. Likewise, the same representation opposed an initiative proposed by the Argentinian representative pretending to include a norm to define political crimes, voting in favour of the right to determine the type of crime by the country granting the asylum, instead40. The foundations for this stance lied on the conviction that the purpose of this institution of asylum is to remove the victims under the threat of persecution and provide protection for them41. Apart from several cases of political asylum, there was a significant period in Uruguayan and world history in which an open-doors and open arms policy was steadily carried out by our country. There were two Uruguayan diplomats who played a very crucial role in saving the lives of one hundred and fifty Jews escaping from the Holocaust. In the first episode, Consul General of Uruguay in Hamburg, Florencio Rivas ordered the main gate of the Embassy garden, where the refugees had taken shelter, to be closed. As the S.S. forces pretended to enter the Mission, he took the Uruguayan flag and introduced himself to the S.S. informing “this is Uruguayan territory. No one may enter without my or my Government’s permission”. That night (9 to 10th, November, 1938) was the Night of the Broken Glasses. The Consul General ordered visas to be automatically granted to everyone. Those families would later sail for Uruguay where they would start their lives again42. A similar event took place at the Uruguayan Embassy in Netherlands under German domination, where in 1940 a group of 20 Jews sought for asylum. Uruguayan Plenipotentiary Minister Gurméndez extended Uruguayan passports to all and took the train provided by the German authorities for the diplomatic corps, with the Jew refugees. Once they reached the German-Swiss border, the S.S. required the submission of the Jews. According to the testimony of one of the saved, Gurméndez took a step forward, introduced himself and affirmed that he and his family would get down from the train with the referred people and would stay with them. After consulting Berlin, the train finally continued its trip with all the passengers43. Another guiding principle in regard to asylum and refuge was revealed in Uruguay’s attitude. Asylum is an essentially humanitarian principle destined to save lives. In order to grant it, no difference should be made in terms of categories of race, nationality, religious or philosophical beliefs, thus it must be

40 VIEIRA, M.A., op. Cit., p. 4 41 SAN JUAN, C.W., El asilo y la protección internacional de los refugiados en América Latina: análisis crítico del dualismo “asilo – refugio” a la luz del Derecho Internacional de los Derechos Humanos en ACNUR. El asilo y la protección de los refugiados en América Latina, Buenos Aires, Siglo XXI, 2003, P. 51, quoted by MANSILLA, C. op. Cit, pp. 4-5, translation by the author. 42 PORZENCANSKI, T., La vida empezó acá: Inmigrantes Judíos al Uruguay, Linardi y Risso, Montevideo, 2005, p. 94–95, quoted by MANSILLA, C., op. Cit., p. 6, paraphrased, extracted and translated by the author. 43 MANSILLA, C. op. Cit., pp. 6-7, paraphrased and translated by the author

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unlimited44. The present legal framework It is framed by the Constitutional norms and principles, the International and Regional Human Rights Law and the Statute on the Right to Refuge and Refugees N° 18.076 of January, 5th, 2007. The Constitution consecrates an open doors policy, in article 37:

“The entry of any person to the territory of the Republic is free, as is his permanence in it and his departure with his belongings, provided the laws are observed and there is no harm for the rest. Immigration must be regulated by law, but in no case should the immigrant suffer from physical, mental or moral defect that may harm society.”

As for the Freedom of Religion or Belief, which applies to every human being, refugee or not, article 5 of the Constitution45 which proclaims that all religious cults are free, should be read in conjunction with article 12 of the American Convention on Human Rights (San José, Costa Rica, Nov 22nd, 1969), with a similar phrasing to article 18 of the International Convention on Civil and Political Rights (UNO, 1966). Forming part of this Human Rights Block or Constitutionality Block, are articles 746 of the Constitution, a guarantee of the protection of the enjoyment of the right to life, honour, liberty, security, labour and property; article 7247 which recognizes all human rights –even unmentioned- as part of the Constitution; and article 332, which consecrates the direct applicability of the articles that acknowledge rights to individuals and those that assign powers and impose duties to public authorities. The Principle of Equality outlined by article 8, “All persons are equal before the law, with no distinction among them other than their talents or virtues”, provides the premise for the Principle of Non-Discrimination and for Pacific Coexistence and Tolerance. Freedom and independence of the conscience is specifically shielded (art. 54), a provision which provides the foundation for conscientious objection:

Art. 54 “Law must recognize independence of the moral and civic conscience of those involved in a labor or service relationship, as well as a fair salary, limitation of the working day, weekly rest and physical and moral hygiene.”

44 GURMÉNDEZ, C.M., La práctica del asilo político, conference at the International Diplomatic Academy, August, 14th, 1953, Montevideo, p. 92, quoted by MANSILLA, C. op. cit., p. 7, extracts and translation by the author. 45 Constitution of Uruguay, article 5: “All religious cults are free in Uruguay. The State does not endorse any religion. It recognizes the Catholic Church as owner of all temples that have been partially or completely built with funds from the National Treasury, with the exception of chapels that have been designated to serve in shelters, hospitals, jails, or other public settlements. In like manner, the State declares all churches consecrated to the worship of the various religions exempt of any form of taxes.” 46 Constitution of Uruguay, Article 7: “The inhabitants of the Republic are entitled the right to be protected in the enjoyment of their life, honour, freedom, security, labour and property. No one shall be deprived of these rights except in accordance to laws dictated for reasons of common interest.” 47 Article 72: The enumeration of rights, duties and guarantees made by the Constitution doesn’t exclude others that are inherent to human personality or are derived from a republican form of government”.

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Law N° 18.076 on the Right to Refuge and Refugees48 has consolidated Uruguay’s tradition as a country of asylum. It starts by proclaiming the right to refuge (article 1)49 and defining it with a very wide scope. The “inclusion clause” of article 2 acknowledges as a refugee anyone who seriously fears persecution because of belonging to a given ethnic or social group, gender, race, religion, nationality or political opinions, amongst other requisites, or has escaped from his country of residence due to a situation of general violence, aggression or foreign occupation, terrorism, internal conflict, massive Human Rights violation or any other circumstance that has disturbed public order. When affiliating to the guiding principles of refuge, it places the principle of Non-Discrimination in the first place (art. 10) and then expands the idea mandating that no State authority, institution, group or individual shall establish any kind of discrimination on the basis of belonging to a given ethnical or social group, race, gender, religion, amongst others when dealing with a refugee or refuge request. The refugee is entitled the right to be provided with an interpreter and legal assistance (article 22). All refuge applicants are entitled to be extended a provisional identity document (article 42). The competent authority shall apply the "pro hominis" principle in favour of the applicant according to the rules of appreciation of article 16 and confidentially is assured by article 17. The State must guarantee all refugees and refuge applicants the enjoyment and exercise of their Human rights, as recognized to the inhabitants of the Republic both by national and by International Human Rights Law (art. 20). And International Human Rights Law, International Humanitarian Law and International Refugee Law are directly applicable as commanded by article 47. So Freedom of Religion or Belief, as far-reaching as is consecrated in favour of nationals, is proclaimed for refugees and asylum seekers. The Statute pays particular attention to the right to family reunion (article 21), including the extension of the condition of refugee to his or her partner and children and to certain collateral or lineal consanguinity relatives. Finally, the Statute creates the Refugee Commission within the sphere of the Ministry of Foreign Affairs, in charge of the determination of the legal condition of refugee, amongst others (article 23), and a Permanent Secretary to assist it. What is very relevant to Freedom of Religion or Belief, is the fact that the UNHCR representation at the referred Refugee Commission in Uruguay is an associate agency called “SEDHU” (Ecumenical Service for Human Dignity) today (SER – Ecumenical Service for Reintegration, from 1984 till 1999). Originally founded as “SER” by representatives of different churches and religious organisations working for political prisoners or the returning exiles50,

48 Law N° 18.076 on the Right to Refuge and Refugees of January 5th, 2007, available at www.parlamento.gub.uy -------------- 49 Article 1: “(Right to refuge) Every person has the right to request and receive refuge in the national territory, in order to safeguard his life, physical, moral and intellectual integrity, freedom and security.” 50 Sources: http://www.acnur.org/t3/donde-trabaja/america/uruguay/ (in Spanish). The parallel web site in English http://www.unhcr.org/pages/49e4930c6.html doesn´t contain this detailed information. Other sources: http://www.presidencia.gub.uy/comunicacion/comunicacionnoticias/cancilleria-refugiados-almagro-acnur-core-comision-secretaria-permanente; http://www.daresrecibir.org.uy/organizaciones-

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today it has transformed into “SEDHU” to assist refugees, with the aim to demonstrate that Christians of different denominations are capable of giving a common testimony. A non-profit, care-providing, non-governmental institution of Human Rights volunteers, it is composed by the Anglican Church, the Evangelical Church of the River Plate, the Evangelical Valdese Church of the River Plate, the Archbishop of Montevideo of the Roman Catholic Church, the Young Men Christian Association, the Francis and Ecological Research and Promotion Foundation Centre and the Methodist Church of Uruguay. It is as from 2001 the UNHCR implementing agency in Uruguay51. Uruguay shelters more than 200 refugees and asylum seekers from more than 30 countries of Latin America, Africa, Asia and Europe, as reporter by the UNHCR in Uruguay52. In 2014 Uruguay granted asylum to two very particular groups: Guantanamo prisoners and a group of 5 families (42 people) escaping from the war in Syria, all Muslims. This immigration of peoples of very different culture and religion have posed very interesting challenges to our traditional western society in terms of tolerance, and moreover, of Human Rights respect, particularly in the fields of Freedom of Religion or Belief. Let’s take a look at the cases. Some present controversial cases The arrival of 5 Syrian families On October, 9th, 2014, five Syrian families were granted refuge in Uruguay, as a result of an action coordinated by the past Administration with the UNHCR. There are families of 14, 12, 6 people, mainly husband, wife and children, and one composed by a widow and 5 children. Once again, a religious actor or mediator has been a main character in refugee issues: the Society of Mary (Marianist Brothers) of the Roman Catholic Church hosted the five families in a country house owned by the Congregation, in order to help during the first stage of the adaptation process. As part of the aim, the Congregation carried out a campaign within the Marianist schools to collect winter clothes. As the President of the Uruguayan subsidiary of the Arab Federation, Alem García commented, most of the Arab descendants living in Uruguay “has a father or grandfather who came escaping from the war”, so he considered that the Syrian families would be able to settle in Uruguay without any problems. He added that the refugees would receive the support from the Arab community as regards their relationship with the rest of the society53. But before coming to Uruguay, some Syrians had manifested their concern, wondering if they would be able to freely practise their religion and live accordingly with their beliefs54.

beneficas?id=112, all visited 10/31/2015. 51 Sources (in Spanish): http://www.daresrecibir.org.uy/organizaciones-beneficas?id=112; http://www.global.net/iepala/global/fichas/ficha.php?id=8910&entidad=Agente&html=1 and http://www.teledoce.com/telemundo/nacionales/refugiados-de-guantanamo-recibiran-15-000-mensuales-a-traves-del-sedhu/ visited 10/31/2015. 52 http://www.acnur.org/t3/donde-trabaja/america/uruguay/ 53 Extracts from the report by Montevideo Portal, www.montevideo.com.uy/auc.aspx?249314,1,1149 of October, 9th, 2014, visited Nov., 1st, 2015, translation by the author 54 Source: http://www.subrayado.com.uy/Site/noticia/36682/sirios-preocupados-por-poder-practicar-

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Legitimate restrictions to Freedom of Religion or Belief? Marital authority and patria potestas The first clash was provoked by an incident of domestic violence which took place in one of the families, involving the exercise of violence –both physical and moral or verbal- by the father, against his wife and some of the children, especially female55. The Secretary of the Parliamentarian Institution of Human Rights, Javier Miranda, who had been in charge of the settlement of these families, narrated that during a long talk he had with a man of one of these immigrant families, this man declared that at home, he was “king” and everyone did what he wanted56. Some of the reactions of Government officials made clear that domestic violence and especially violence against females would not be admissible in Uruguay, a country which acknowledges the same dignity to males and females, where this kind of violence would constitute a crime and where paternal authority has its limits. Therefore –the authorities argued- the immigrants should abide by the Uruguayan law and should abandon any practise which meant ill-treating their relatives, no matter if it is part of their culture, tradition or religious beliefs. The incidents were controlled and have not been repeated. The immigrants never insisted in defending the exercise of these rights against the legal system, which condemns the use of violence as crimes or offences, and is based on the equal dignity and rights between genders. So tolerance and respect for cultural or religious traditions found its limits. When violence is exercised against others as forbidden by law, impairing the rights and freedoms of others, a permissible restriction to the right to manifest freedom of religion or belief operates, in accordance to Human Rights Law, specifically article 12.3 of the American Convention on Human Rights57. Will we be able to practise our religion in Uruguay? Wearing the veil in public schools When exteriorizing their concern about the free practise of their religion in Uruguay, Syrians were specifically concerned with the use of the veil by women. They eventually turned out to be prophets: there were negative reactions

su-religion-en-uruguay (in Spanish), Aug., 24th, 2014, translation by the author 55 ……………….. 56 El Pais (newspaper), 7/26/2015, Imán dice que Uruguay no es intolerante, pero se sienten discriminados. Sanguinetti: velo transforma a la escuela en lugar de división 57 American Convention on Human Rights, Article 12. Freedom of Conscience and Religion: 1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to

maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private.

2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

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

4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions”.

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to school girls wearing the hijab or the veil at public schools. In July, 2015 the debate on the use of religious symbols and dress was installed (or re-installed in our country), and reactions varied from a strong opposition on the grounds of secularism, to true respect of Human Rights, on the grounds of secularity, a dogma in Uruguayan public school, and other views which deprived the usage of its true religious meaning. Former President Julio M. Sanguinetti58 on one side of the spectrum assured that the concept of secularity assumed by the people as a gesture of tolerance, is today under question and debate, and will be deepened when the second group of Syrians arrive to the country before the end of this year. “The State is not against religion, it is neutral”, he noted, arguing that the State should make a statement on the [im]possibility to wear the veil in public schools. “Uruguay has achieved a status of pacific coexistence despite immigration flows. Today it is not a problem, tomorrow it may become one” he said. “The veil … is not only a symbol of belonging. It is a symbol of women subordination”59. He also affirmed that wearing the veil in publics schools is inadmissible because it is a sign of division. The Deputy in charge of the Commission of Education and Culture of the Chamber of Deputies and former Headmistress of a Secondary School, Graciela Bianchi60, akin to this trend, declared: “this is a secular country, with Freedom of cults (sic), yes, but if one attends a public institution, one has to abide by the State norms. … Uruguay is now discussing again issues which were resolved by the end of the XIX Century. We are going backwards instead of progressing. There is no doubt. There aren´t two postures about it. …Although authorities do not carry out this practise, School authorities are entitled to examine student by student to verify if they are wearing a cross. However, a cross –which is sometimes deprived of its religious significance- is not the same as a veil. … I do not allow the entrance of anyone dressed as a nun”, she exemplified. For the President of the Commission of Education and Culture of the Senate, and former school teacher, José Carlos Cardoso61, on the other hand, there is no inconvenient in a girl or young woman wearing a veil in class. “People confuse secularity against secularism. Secularism is proselytising against a religion, is having an animosity against religions. The Public School never had it”. The veil “has no reason for representing a problem. What teachers must do is explain all children what it is about: part of a religion, a form of living. It does not violate secularity”, he noted. “I may wear a T-shirt with the legend “Jesus lives”. The teacher may not. He may not impart a religiously oriented education”. Senator Luis Lacalle Pou62, coincidentally twitted as regards this debate: “Yes to secularity, yes to Freedom of Religion also. Yes to the veil, the David Star, the cross, etc. Freedom, tolerance, peace.” The Executive defended the practise of wearing of the veil in class, adhering to the posture of the Director of the Initial and Primary School 58 President of Uruguay 1985-1990 and 1995-2000, of the Colorado Party, social democrat 59 El País (Newspaper), 7/26/2015 60 Graciela Bianchi, ……. Of the “Partido Nacional”, liberal democrat, former socialist 61 Senator José Carlos Cardoso, ……, of the “Partido Nacional”, …… 62 Senator Luis Alberto Lacalle Pou, …….. leader of the Partido National presidential candidate who disputed with present President Tabaré Vázquez, https://twitter.com/LuisLacallePou

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Counsel, Irupé Buzzetti, who sustained “Secularity is a form of institutionalized democracy. Neutrality does not matter, but respecting the other. In school we have these liberties”. Culture is composed by traditions and beliefs and Freedom of Religion “is the true secularity”. Former President Julio María Sanguinetti replied to these permissive views, holding that “You cannot say, as has been said, that someone may go to school wearing a T-shirt with the inscription “Jesus lives”, because the next day there will be another one coming with one of Muhammed and another with the inscription religion is the opium of the people, and we would have transformed the public school, a space for citizen coexistence where everyone must respect each other, in a place of social fragmentation”.63 “Professor Buzzetti is wrong when she says we must respect all traditions and beliefs. There are some beliefs that attempt against the public order and cannot be accepted. … Are we going to accept disturbance of our wonderfully constructed secular school, basis of our Republic?” … “This is why we insist: Islamic veil is a symbol of female discrimination which our secular school may not accept. Secularity is neutrality and tolerance of all liberties. But the cults ought to be exercised outside the State spheres”, he said. The member of the Primary School Council, Héctor Florit sustained that the veil was a more cultural than a religious issue. Finally, an expert in Islam explained that as Islam, both Judaism and Christianism suggest that the woman be dressed with demureness and modesty” and that only in Iran and Saudi Arabia is the veil mandatory. So the incorporation of Muslim women to the homogeneous, uniformed, western Uruguayan society did challenge its social and cultural habits, re-installing the debate of the presence of religious symbols in the public sphere. For the time being, school girls continue to wear their veils peacefully. As for the legal system in force as a whole, it certainly protects this type of manifestation of religion or belief, and it does so specifically through Refugee Human Rights Law. The UNO 1951 Refugee Convention and its and 1967 Protocol establish the principle of non-discrimination as to race or religion, amongst others in article 3, and compromises the States to accord the right to Freedom of Religion or Belief to refugees to the same extent –at least- as granted to nationals, and specifically in regard to religious education of their children (article 4). As for Latin American Regional Law, the Convention on Territorial Asylum (Caracas, Venezuela, 1954) extends Freedom of expression of thought to refugees and asylees in Article VII, provided it does not incite violence. Likewise, the Uruguayan Law N° 18.076 on the Right to Refuge and Refugees of 2007, embeds the principle of Non-Discrimination in article 10, as well as “the enjoyment and exercise of their Human rights, as recognized to the inhabitants of the Republic both by national and by International Human Rights Law” (article 20). There are no permissible restrictions that may be invoked to limit the manifestation of Freedom of Religion or Belief by refugees or asylees, in accordance to Human Rights Law, as mandated by article 12.3 of the American Convention on Human Rights64, which should be read in conjunction with our 63 Declarations to “El País” newspaper, Imán dice que Uruguay no es intolerante, pero se sienten discriminados. Sanguinetti: velo transforma a la escuela en lugar de división, 7/26/2015 64 American Convention on Human Rights, article 12.3: “Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety,

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Constitution: Article 68: “Academic freedom is guaranteed. The Law shall regulate that State intervention will be limited to assuring the maintenance of hygiene, morality, security and public order. Every parent or guardian has the right to choose, for his children or pupils’ education, the teachers or institutions they wish.” Article 71 (last phrase): “All educational institution shall particularly focus on the moral and civic instruction of pupils.”

So the challenge is for scholars and public agents to revise the concept, significance and extent of the principle of secularity, and reflect on the role and place of religion in a secular State. Moreover, the parents’ right to “provide for the religious and moral education of their children or wards that is in accord with their own convictions”65 is recognized by both, the regional instruments and the Constitution.

What would happen then, if the veil was actually forbidden in schools by public authorities?

Very probably, Syrian girls would not be sent to school, as their parents’ right to choose the religious education for them would be impaired. So eventually they would not have to access to education, a right of every inhabitant of Uruguay and a duty of their parents and the authorities, according to our Constitution.

“Primary school and middle school are compulsory” by Article 7066 and education in its whole “must particularly focus on the moral and civic instruction of pupils,” as endorsed by Article 71.

We must remember that the UNO 1951 Refugee Convention mandates States to accord the right to Freedom of Religion or Belief to refugees to the same extent –at least- as granted to nationals, and specifically in regard to religious education of their children (article 4).

Will we be able to gain our bread by the sweat of our brow, while

loving God above all things in Uruguay?67 The veil again and religious times of prayer in the workplace

Another concern was raised in the workplace, as regards enjoying a free hour for praying within the working day during the closing of the Ramadan festivity. For Iman Samir Selim, director of the Egyptian Islamic Culture Centre of Montevideo, the behaviour of the Uruguayans is not as affable as you may think. "Uruguay is not an intolerant country, we are not discriminated, however there are other problems, such as Muslim women being forbidden to go to work with their veil”, he declared to AFP agency.68

Although not directly addressed by the Uruguayan legal system, the general guiding principles of the right to freedom or religion or belief should be

order, health, or morals, or the rights or freedoms of others.” 65 American Convention on Human Rights, Article 12(4.) 66 Article 70: “Primary school, as well as middle school, either standard, farm or industry-oriented, are compulsory. The State will promote the development of scientific research and technical instruction. Law shall provide what is necessary for these precepts’ effectiveness.” 67 This question was not made explicit by the Syrians, it is an illustration by the author 68

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applied, and thus accommodation between the religious demands and labour, should be attempted whenever possible.

Moreover, the International Labour Organization (ILO) Conventions condemn discrimination on the grounds of religion (Convention N° 111, article 169) and mandate that religious traditions of the workers must be respected.

Convention N° 10670 related to weekly rest in Commerce and Offices dictates in article 6:

“3. The weekly rest period shall, wherever possible, coincide with the day of the week established as a day of rest by the traditions or customs of the country or district.

4. The traditions and customs of religious minorities shall, as far as possible, be respected.” And Convention N° 133 on Seafarers Rights71 contains provisions to

consider the religious practises of the workers. On addressing this issue, the same governing principles apply to wearing the veil at the workplace. Limitations of this right are only legitimate if “prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.”

In this sense, we may consider some limitations of the right to wear religious symbols in the public sphere for security reasons, such as for identification requirements or crime prevention. There are administrative regulations which van the use of helmets, hats or garments covering the head inside financial institutions, but these are administrative regulations, not formal statutory law, so they appear to contradict both the Constitution and Human Rights Law.

Moreover the Constitution mandates the legislator to dictate laws to protect the moral and civic conscience of all workers or servants:

Art. 54 “Law must recognize independence of the moral and civic conscience of those involved in a labor or service relationship, as well as a fair salary, limitation of the working day, weekly rest and physical and moral hygiene.”

So keeping days of religious rest, celebrating religious festivities, praying and wearing the veil in the workplace have a constitutional and Human Rights Law basis.

Will we be able to give a proper religious burial to our relatives?72

Some de facto exceptions As is well known, Islam has specific burial rites -communal obligations on

Muslims-, involving preparation of the deceased body (washing and covering it with sheets - The Kafan - Shroud), and certain specific prayers by Muslim 69 ILO, C111 - Discrimination (Employment and Occupation) Convention, 1958 (No. 111), available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111. Article 1: “For the purpose of this Convention the term discrimination includes-- (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; …” 70 ILO, C106 - Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), available at http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO:12100:P12100_INSTRUMENT_ID:312251 71 ILO, C133 Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), available at http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_CODE:C133 72 This question was not made explicit by the Syrians, it is an illustration by the author

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brothers73, amongst others. Additionally, according to Rules 620 and 627 of the Mustahab acts of Namaz-e-Mayyit74, “It is obligatory to bury a dead body in the ground, so deep that its smell does not come out and the beasts of prey do not dig it out…” and “It is not permitted to bury a Muslim in the graveyard of the non-Muslims”.

This religious obligation may oppose sanitary regulations which dictate that burials must take in State or authorized cemeteries and following certain procedures including the use of a coffin. For the time being, negotiations have been taking place with the Municipality to obtain the permits for a Muslim cemetery.75

There are rumours that the complete Islamic funeral rites are permitted in the cross-border with Brazil, where a large Muslim community lives in Uruguay.

Will we be able to feed ourselves according to our beliefs?76 Ritual

slaughter and dietary needs. Another preoccupation was raised as regards ritual slaughter of animals,

since –presumably, but mistakenly- there existed the fear that animals were slaughtered here “in a different way”, and there was “no Halal food here”, as Iman Selim77 added, a reason why they resourced to the more similar Kosher food.

In fact, Uruguay does count on administrative regulations on slaughtering of animals78, which enforce the use of humanitarian methods in slaughterhouses authorized by the Ministry of Agriculture, “with the exception of ritual sacrifice methods”. Ritual slaughtering may be agreed on demand –kosher or halal-, and provided they comply with sanitary regulations, the activity is control-free. The Law on “Responsible Tenancy of Animals”79 bans ill-treatment of animals and strictly limits animal sacrifice, except for “productive activities or religious rites” (art. 3).

In fact, there is Halal food in Uruguay and Halal certifiers work at the slaughterhouses. Uruguay even exports Halal meat.

Another contingent of refugees: asylum granted to Guantanamo prisoners

On December, 7th, 2014, six prisoners from the United States of America base in Cuba, were transferred to Uruguay and granted asylum as a result of the compromise assumed by former President José Mujica with President Barak Obama.

The six high security prisoners (4 from Syria, one Jordan and one Tunisian80), all charged with crimes of terrorism, training for or collaboration with and belonging to Al Qaeda, were located in a townhouse in Montevideo. They are all Muslim and pray towards the Mecca five times a day81. 73 Source: http://www.missionislam.com/knowledge/funeral.htm 74 Source: http://www.sistani.org/english/book/48/2188/ 75 Source: El País (newspaper), Imán dice que Uruguay no es intolerante, pero se sienten discriminados. Sanguinetti: velo transforma a la escuela en lugar de división, 7/26/2015 76 This question was not made explicit by the Syrians, it is an illustration by the author 77 Declarations to “El País” newspaper, Imán dice que Uruguay no es intolerante, pero se sienten discriminados. Sanguinetti: velo transforma a la escuela en lugar de división, 7/26/2015 78 Decree Nº 369/983, art. Art. 181 79 Law Nº 18.471, Apr., 21st, 2009 80 El Pais, http://www.elpais.com.uy/informacion/gobierno-confirmo-comunicado-llegada-presos.html 81 El Observador (newspaper), Ex preso de Guantánamo se encadenará frente a embajada de EEUU,

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Right to live or duty to live? The hunger strike In March, 2015 two of the asylees camped outside the US Embassy to protest for their living conditions and threatened to chain themselves if a solution was not provided. As some of them had done in Guantanamo, they started a hunger strike. As their condition worsened, some authorities came with the idea to commit them to hospital and feed them compulsorily through parenteral means. Professor Dr. Guido Berro (a Forensic Doctor) declared that he had objected to performing this kind of imposition against the free will of a human being and his dignity. Eventually, the former prisoners were offered better conditions and they gave up the strike. Does the human being have a right or a duty to live? Notwithstanding what answer might be given to this question, should the authority substitute their decision and oblige them to be fed? Can religious marriage be a crime? Only in Uruguay, but not for everyone. In Uruguay religious marriage is deliberately deprived of civil effects by the Civil Code (Article 83). Moreover, celebration of religious weddings not preceded by civil marriage is a form of criminal offense by members of the clergy 82. This norm from 1867 has not been updated and is still in force. So it is not to surprise that it alludes to “no priest of the Catholic Church or pastor of the different dissident religions in the country” when forbidding religious celebration not preceded by civil marriage. According to this literal interpretation, no public actions were taken against the Muslim clergyman who officiated the wedding, since he was neither a priest nor a pastor. Three love stories took place: the first between a Tunisian former Guantanamo prisoner aged 50 and a 24 year old Uruguayan young girl recently converted to Islam. The religious ceremony was conducted by the Sheik inside a house. The week after, a second marriage took place between the Syrian former Guantanamo prisoner and a Uruguayan woman from a Muslim family. The third wedding was announced between the Jordan immigrant and another Uruguayan woman, a Psychologist83. These couples have not solved the issue of the civil marriage celebration, before the religious wedding, and none of the three couples have registered for civil marriage, as public authorities have confirmed84. The Roman Catholic Bishop of the Diocese of Minas, Mons. Jaime

3/23/15 82 Civil Code Art. 84. “Once the civil marriage is prosecuted, …, spouses may freely request religious ceremony to the church they belong to, but no priest of the Catholic Church or pastor of the different dissident religions in the country, may proceed to bridal blessing without previously verifying the celebration of civil marriage, … either incurring in a six months imprisonment penalty and one year in case of second offense.” As an exception, “in extremis” marriage is unpunished, though deprived of civil effects. 83 Source: El Observador (newspaper), 06/05/2015 84 Source: http://www.elpais.com.uy/informacion/dudas-legalidad-bodas-refugiados-guantanamo.html

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Fuentes, after wishing the unions to be blessed by God with many children, wondered: “How is the thing? Why I, Catholic Bishop, must go to prison if I bless the wedding of a couple who has not gone through the Registry, and in the present case, the commission of a crime has been celebrated with great fanfare? Why this discrimination? Isn’t the law equal for everyone? Can someone explain? Thank you”85. Leaving comments apart, the question is: Is it a crime? Is the Civil Code in force in this field? Crime or not, Uruguay is a matchmaking country, that is for sure! From a Human Rights Law perspective, the crime may be considered overruled by Human Rights Law, since the right to “profess”… “one’s religion or beliefs, either individually or together with others, in public or in private” is guaranteed by the American Convention on Human Rights (article 12.1) and “All religious cults are free in Uruguay”, as endorsed by article 5 of the Constitution. But in this hypothesis, the prohibition should be considered void for everyone, not only for those clergymen who are not “priests” or “pastors”. However, for the benefit of legal certainty and equality between religious groups and justice, the Civil Code rule should be directly revoked, and also in order to update such old-fashioned and disrespectful legislation. So, once again, refugees and immigrants have contributed to the debate on the extent, significance and justice of respecting Freedom of Religion or Belief, calling to the decision-makers and the academy to make the necessary changes in order to facilitate the exercise of Freedom or Religion or Belief in our country. Keep walking? The final question is: Has the Uruguayan society learned another lesson in terms of peaceful coexistence and respect for the diverse? Do these recent events trigger reflection on the place of religion in society, in the State, in Law, and to the extent human dignity demands respect for Freedom of Religion or Belief? We hope and believe so. Immigration teaches; encounter with the alter humanizes. Another contingent of Syrian families is expected by the end of this year. How should we receive them? On answering to these questions, more far-reaching approximations may be attempted. Most if not all of us believe in some form of transcendence. Therefore, we believe that our life or our soul will continue in the other world. Therefore, and hopefully, we will be asylees somewhere else. In most belief systems, that destiny will depend upon each person’s conduct in this world, specifically, with the way we have treated our fellows in case of persecution and refuge. May we deserve to be granted asylum in the after world in the same way we have been sensitive to those who had to leave their places of origin here.

Carmen Asiaín

85 Blog Desde el Verdún, 6/15/15, Musulmanes sin registro. ¿por qué? http://www.desdelverdun.org/