Scholarship@WashULaw

Document Type

Book Section

Publication Date

2018

Publication Title

Religion and International Law: Living Together

Abstract

Religious freedom is part and parcel of the European Convention of Human Rights (ECHR)’s broad catalogue of human rights. Yet in reality, religion and human rights can have a fraught, conflictive relationship. Is religion a threat to human rights? Are human rights a threat to religion?

These questions resist easy answers, yet an examination of the jurisprudence of the European Court of Human Rights’ (ECtHR) suggests that, on the whole, the Court has been more successful in identifying threats posed by religious beliefs or organizations to human rights than vice-versa. As to the former, we examine case-law in two subject matter areas: extremist religious parties, and proposed deportation or expulsion of individuals of faith to religiously intolerant countries. As to the latter, we consider cases on the peaceful assembly of religious groups, and the wearing of religious symbols or clothing.

We argue that, in cases involving religious threats to broader human rights, the Court’s jurisprudence has been principled and internally coherent. As regards the latter, the Court has given excessive solicitude to State claims against religious practices. This yields a selective and superficial treatment of individual autonomy that downplays the centrality of belief as constitutive of the identity of the believer/speaker, while characterising listeners/witnesses as overly suggestible to persuasion by symbols and peaceful expression. What results is an exaggeration of the threat posed to public ‘order’ by symbols and peaceful expression, as well as the demonization of the groups or individuals of faith who advance them.

Keywords

ECHR, Religious Freedom, Human Rights, Symbols, Freedom Of Assembly, Margin Of Appreciation

Publication Citation

Paulo Pinto de Albuquerque & Andrea Scoseria Katz, Is Religion a Threat to Human Rights? Or is It the Other Way Around? Defending Individual Autonomy in the ECtHR's Jurisprudence on Freedom of Religion in Religion And International Law: Living Together 277-293 (Robert Uerpmann-Wittzack, Evelyne Lagrange, and Stefan Oeter eds. 2018)

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