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The Santo Daime Church - The Protection of Freedom of Religion under International Law.

Abstract

1. The Convention on Human Rights and Fundamental Freedoms, , the International Covenant on Civil and Political Rights, and the American Convention on Human Rights contain articles protecting the freedom of religion but do not contain a definition of “religion,” and the judicial bodies monitoring the implementation of these instruments have not adopted a definition to this point. However, trends can be found in the decisions of judicial bodies monitoring the implementation of these instruments and general principles can be extracted, including the fact that even non-mainstream religions can be recognized if they show a certain level of cogency, seriousness, cohesion and importance. According to these principles as well as expert opinions considered by courts on the national level, the Santo Daime should be considered a religion under Article 9 of the Convention on Human Rights and Fundamental Freedoms and Article 18 of the International Covenant on Civil and Political Rights, and consequently deserves protection. More research is suggested in order to decisively conclude on the recognition of the Santo Daime as a religion under Article 12 of the American Convention on Human Rights. 2. The European Convention on Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights name four forms of manifestation of one’s religion namely: worship, teaching, practice and observance. The European Court of Human Rights tends to interpret all these terms narrowly, whereas the United Nations Human Rights Committee adopts a more encompassing approach. What is, however, required by both judicial bodies to qualify an act as a religious manifestation is a very direct link between the action and the religion or belief so that the action actually expresses the belief concerned. The use of Ayahuasca could be considered to fall within the scope of the term practice. In international proceedings, the Santo Daime would be expected to prove that the use of Ayahuasca is an integral element of the religious practice and that it actually expresses the belief. If this is proven, the drinking of tea should be recognized as a form of manifestation of a religion or belief and would therefore fall within the ambit of Article 9 of the Convention on Human Rights and Fundamental Freedoms and Article 18 of the International Covenant on Civil and Political Rights. Whether the use of Ayahuasca as a form of a manifestation of a religion should be protected also under Article 12 of the American Convention on Human Rights has not been established by this report and additional study is required. 3. The determination whether there has been an interference with the right to manifest one’s religion or belief constitutes the first step of analysis. According to the European Court of Human Rights case law, State Parties cannot claim the absence of interference merely by asserting that a close alternative is available to the form of manifestation restricted, as the choice of the form of manifestation always belongs to the believers. In the case of Santo Daime Church, refusing to allow the use of Ayahuasca tea for religious ritual purposes would constitute an interference with the freedom to manifest a religion. 4. This Report has also examined whether this interference, if it were to take place, could be justified. It has been shown that in order for a limitation to be legitimate under the ECHR, the ICCPR, or the ACHR it must be necessary, in the interest of public safety and order, for the protection of public health and morals, or for the protection of the rights and freedoms of others. After analyzing the Santo Daime under these possible legitimate limitations, this Report has concluded that any limitation of the Santo Daime´s manifestation of its religion through Ayahuasca tea drinking, as it is described in this Report, would likely not be justified neither under the ECHR or the ACHR, nor under the ICCPR. 5. It is possible to claim that the Santo Daime’s right to use Ayahuasca should ensure their right to access it, but the European Court of Human Rights and the Human Rights Committee have not directly ruled on this issue. The Human Rights Committee has stated that the concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts. The European Court of Human Rights case law supports this general proposition, but not all ceremonial items are protected for all groups. Guidance may be found by examining the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. This report suggests more research on this issue.