The Freedom to Manifest Religious Belief: An Analysis of the Neccesity Clauses of the ICCPR and the ECHR

摘要

This paper examines Article 18 of the International Covenant on Civil and Political Rights and Article 9 of the European Convention on Human Rights. Both documents affirm freedom of religion as a fundamental human right, yet both recognize the need for restrictions on freedom of religion when “necessary.” The paper discusses the text of Articles 18 and 9, as well as European Court of Human Rights and Human Rights Committee cases interpreting and applying the Articles. The paper then analyzes several current laws restricting religious freedom on necessity grounds as to whether the restrictions are legitimate or illegitimate under the instruments. I conclude that the laws from several States likely do not pass muster, and pose a great risk to religious freedom.My second primary contention is that the “principle of secularism” (as defined primarily in European Court of Human Rights jurisprudence), without more, is an illegitimate justification for restrictions on religious freedom under the ICCPR and the ECHR. More specifically, the principle of secularism functioning as a principle by which religious expression may be excluded from full participation in democratic government is inimical to the ICCPR’s and ECHR’s vision of religious pluralism as “indissociable” from a democratic society. Further, the European Court’s application of the principle improperly equates a “secular” government with a democratic government, and as such is in tension with prior cases in which the Court has affirmed religious pluralism as axiomatic for a democratic society. The paper concludes with a discussion of the case of a pastor in Sweden who was convicted for preaching a sermon condemning homosexuality, as a test case for the application of the principles discussed throughout.