A Explanatory Memorandum
1. The Committee pays tribute to the efforts
made by the Committee of Ministers to complete
the Convention for the Protection of Human
Rights and Fundamental. Freedoms along
the lines desired b y the Consultative Assembly.
It, nevertheless, considers that it. should make
the following observations regarding certain
provisions of the Protocol.
2. Article 1. — No comments.
3. Article 2. — First proposal : no comments.
4. Article 2. — The second proposal is worded
as follows :
5. —
" In the. exercise of any functions which
it may assume in relation, to. education and
to teaching, the State shall have regard to
the right of parents to ensure the religious
education of their children in conformity with
their own creeds. "
6. Comparing this text with that adopted b y the
Assembly, the Committee notes :
6.1 That the States will now only be undertaking
to " have regard to the right of parents",
a phrase which is too elastic to secure the
supervision which it is the aim of the
Convention to bring about.
6.2 That the rights of parents thus recognised
only extend to the religious education of
their children and no longer to their general
education according, to the convictions
of the parents. This will undoubtedly
be interpreted in the majority of States as
an appreciable step baekwards, which it will
be difficult to accept, in relation to [the
traditional conception of freedom of education.
If it is feared that any other formula
would imply the duty of the State to e
stablish or to support, out of public funds,
in, whole or in part, schools corresponding
to the various trends of opinion in the
population, the Committee can only repeat,
as has already been stated in, the Consultative
Assembly, that this question, should
be. considered as being entirely outside the
scope of the Convention or the Protocol.
6.3 While the text proposed b y the Assembly
guaranteed, respect, both for: the philosophic
al and for the religious convictions of parents, the present Protocol speaks only
of respect for religious convictions. This
curtailment will certainly be keenly resented
in several countries. In the explanation
given by the Secretariat, the main
reason for the omission was the desire to
prevent the spread of doctrines directly
opposed to the very principles on which
the Convention is based. The Committee
points out, however, that this concern had
already been expressed during the discussion
of other freedoms and had led to the
inclusion in the text of the Convention
of a general clause which satisfactorily
covers the question of education. The
wording of Article 17 is as follows :—
7. " Nothing in this Convention may be
interpreted as implying for any State,
group or person any right to engage in
any activity or perform any act aimed
at the destruction of any of the rights
and freedoms set forth herein or at their
limitation to a greater extent than is
provided for in the Convention. "
8. As for the objection that the constitution
of a country with a State religion would
not allow such extensive freedom as is
proposed by the Assembly, it seemed to
our Committee to be contrary to the current
interpretation of the idea of State
religion, and that in any case this objection
should not prevent other States from
holding to the traditional conception of
freedom of education.
9. It is on the basis of the above considerations
that the Committee proposes replacing
Article 2 b y the following text :—
10. " No person shall be denied the right
to education. In the exercise of any
functions which it assumes in relation
to education and to teaching the State
shall respect the right of parents to
ensure such education and teaching in
conformity with their own religious and
philosophical convictions. "
11. Article 3. — The Committee on Legal and
Administrative Questions readily accepts the
objection made b y the Experts of the Committee of Ministers that the statement of political
liberty was not sufficiently precise. The Committee
likewise notes the fear expressed that
the idea of representation might be interpreted
too narrowly. It considers, however, that the
proposed text (the French version of which
appears in any case to contain a mistake in the
last line— " sur " instead of " dans " ) should
be replaced by the following :—
12. " The High Contracting Parties undertake
to hold free elections of the legislature at
reasonable intervals by secret ballot, under
conditions which will ensure the free expression
of the will of the people. "
13. Articles 4 and 5. — The Committee appreciates
the desire of the Committee of Ministers
to leave it open to the signatory Powers provisionally
not to incorporate all or some of the
Articles of the Protocol in the declaration to be
made by them under Article 63 of the Convention.
14. The Committee notes, however, that the present
wording may leave some doubt as to whether
Article 63 of the Convention is included
among the provisions of the Convention which
are made applicable to the Protocol by Article
5 thereof. If so, it is not clear how this
fits in with Article 4 of the Protocol.
15. To remove all doubts on the question the
Committee proposes that Article 4 should be
replaced by the following clause, to be added to
Article 5 of the Protocol (which will become
Article 4) :
16. " However, when use is made of the option
provided for in Article 63 of the Convention
of declaring that the Convention shall extend
to the territories for whose international
relations a State is responsible, exception
may be made of Articles 1, 2 or 3 of the present
Protocol.
17. Such an exception may be revoked at any
time, it may also be incorporated at any time
in the declaration."
18. Article 6. — (which will become Article 5 )—
no comment.
19. The Committee was unanimous in making the
above observations and sincerely hopes that
it may be possible for the Committee of Ministers
to amend the Protocol accordingly.
