The right to religious freedom in international law : between group rights and individual rights / Anat Scolnicov.
2011
K3258 .S46 2011 (Map It)
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Author
Title
The right to religious freedom in international law : between group rights and individual rights / Anat Scolnicov.
Published
New York : Routledge, 2011.
Call Number
K3258 .S46 2011
ISBN
9780415481144 (hardback)
0415481147 (hardback)
9780203842638 (ebook)
0203842634 (ebook)
0415481147 (hardback)
9780203842638 (ebook)
0203842634 (ebook)
Description
xxxiii, 246 pages ; 24 cm.
System Control No.
(OCoLC)564132893
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Table of abbreviations
xvi
Table of authorities
xvii
Table of cases
xxi
Table of statutes
xxix
Preface
xxxii
Introduction
1
1.
Existing protection of religious freedom in international law
9
1.1.
Historical underpinnings
9
1.2.
Right to freedom of religion in the major UN documents
11
1.3.
The International Human Rights Covenants
12
1.4.
The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (1981)
13
1.5.
International documents relating to national, religious and linguistic minorities and to indigenous peoples
14
1.6.
Regional instruments
16
1.6.1.
The Americas
16
1.6.2.
Africa
16
1.6.3.
Europe
16
Notes
18
2.
Why is there a right to freedom of religion?
23
2.1.
Introduction
23
2.2.
Can freedom of religion be a group right?
24
2.2.1.
What would a group right be?
25
2.2.2.
How to identify a group
26
2.2.2.1.
Self-identification
26
2.2.2.2.
Identification by the group
26
2.2.2.3.
Objective identification
27
2.2.3.
Can group rights ever be recognized?
28
2.2.3.1.
Historical considerations
28
2.2.3.2.
Community survival
29
2.2.3.3.
Cultural interpretation of rights
29
2.2.3.4.
Protection of the rights of individual members of minorities is not sufficient for the special protection needed for minorities
30
2.3.
Freedom of religion: between liberty and equality
31
2.3.1.
Liberty or equality: prohibition of incitement
32
2.3.2.
Group or individual: implementation of religious equality
33
2.4.
Religious freedom in liberal political theory
34
2.4.1.
Justifications for religious freedom in liberal thought
35
2.4.1.1.
Individual religious freedom as critical capacity
35
2.4.1.2.
Individual religious freedom as equal liberty
37
2.4.1.3.
Individual right as property of the right holder
40
2.4.2.
Justifications based on relations between religious groups
41
2.5.
Community and identity
43
2.5.1.
Communitarian approaches
43
2.5.2.
Freedom of religion as protection of minorities in a multicultural society
46
2.5.3.
Groups that violate the human rights of their own members
48
2.5.4.
Group rights: the utilitarian argument
48
2.6.
Religious views and liberal prescription of religious freedom
49
2.7.
Religious political participation
51
2.7.1.
Are religious reasons for legislation a breach of religious freedom?
52
2.7.2.
Democratic participation of non-democratic religious parties
56
2.8.
Conclusion
57
Notes
58
3.
Legal status of religion in the state
67
pt. A
Legal status of religion in the state
67
pt. B
Religious freedom should be an individual right in preference to a group right
75
3.1.
Religious institutions have a public or semi-public character and so cannot be granted rights that override individual rights
76
3.1.1.
Churches as bearers of rights and as bearers of obligations under the European Convention
78
3.1.2.
Church employees and internal proceedings
80
3.1.3.
Democratic governance
83
3.2.
Religious freedom includes the right to participate in religious communities without waiving one's basic rights
85
3.2.1.
European human rights law
86
3.2.2.
Rights of employees of religious organizations-UK and Germany
87
3.2.3.
United States
89
3.3.
Recognizing religious group rights inevitably involves the state in defining religious groups, thus compromising state neutrality in matters of religion
92
3.3.1.
Legal powers
93
3.3.2.
Budget allocation
96
3.3.3.
Registration and freedom of religious association
96
3.3.3.1.
State involvement in private disputes
100
3.3.4.
Claims of leadership
101
3.3.5.
Conclusions
102
3.4.
Jurisdiction cannot be accorded to a religious community to which individuals may not have chosen to belong. Even where such choice exists, the state should not allow individuals to waive rights of religious freedom to their communities
103
3.5.
An individual conception of religious freedom should take into account the different positions of members of minorities and of majorities
106
3.5.1.
Employment
107
3.5.2.
Exemptions from general rules
108
3.6.
Apportioning equality between religious groups is inherently problematic
109
3.6.1.
Equality in allocation of resources
109
3.6.2.
Equality on the basis of religion between individuals or between groups
110
3.7.
States should not evaluate the social worth of religious groups as this breaches state neutrality
111
3.8.
Conclusion
114
Notes
114
4.
Women and religious freedom
126
4.1.
Introduction: the problem and existing international law
127
4.1.1.
The conflict between group religious freedom and the religious freedom of women
127
4.1.2.
Guarantees of religious freedom of women in international documents
128
4.1.3.
Reservations to convention provisions affecting non-discrimination in enjoyment of the right to religious freedom
129
4.2.
Application of discriminatory religious law through relegation to the religious communities
130
4.2.1.
Religious tribunals and the right of women to equality before the law
130
4.2.2.
Competing religious and secular sources of legal authority and protection of the rights of women
131
4.2.3.
Religious autonomy and women in minority groups
132
4.3.
Discrimination in religious marriage not caused by the state
135
4.3.1.
Registration of religious marriages by the state without religious jurisdiction over personal status
135
4.3.2.
State attempts to rectify discrimination in religious marriage may not be enough to preserve equality
136
4.4.
Non-recognition of discriminatory religious marriages may further the discrimination of women
137
4.4.1.
Potentially polygamous marriages
137
4.4.2.
Polygamous marriages
139
4.5.
Discrimination of women in internal religious affairs by religious institutions
140
4.5.1.
Clergy who hold public office
140
4.5.2.
Clergy who do not hold public office
141
4.5.3.
Discrimination in appointment to religious office as a concern for international law
141
4.5.4.
Discrimination of women by religious and tax-exempt status
143
4.6.
Secular legislation based on religious motives
143
4.6.1.
Religious reasons for state legislation
144
4.6.2.
Religious reasons for international norms
146
4.6.3.
Religious determinations and individual conscience
148
4.7.
Conclusion
148
Notes
149
5.
Children, education and religious freedom
160
5.1.
Choice of religion
161
5.2.
The child's religion in situations of change of family
162
5.3.
Right to religious education: protection of right of child or of community?
166
5.4.
What sort of education is compatible with religious freedom?
169
5.5.
Community religious education and individual human rights
170
5.5.1.
Schools as public entities
170
5.5.2.
The argument of voluntary participation
172
5.6.
Religious freedom of teachers
174
5.7.
Community religious schools and equality of female children
175
5.8.
Wearing of headscarves: a conflict of group and individual values
176
5.8.1.
Four states - four cases
176
5.8.2.
Religious freedom as individual right
178
5.8.2.1.
Religious freedom includes free religious expression
178
5.8.2.2.
Voluntary participation in a public activity does not amount to a waiver of rights
179
5.8.2.3.
A principle of secularity
179
5.8.3.
Religious freedom of the student or religious autonomy of the community?
180
5.8.4.
Equality of female students
181
5.9.
Teachers' headscarves and religious freedom in employment
183
5.10.
Conclusions
185
Notes
186
6.
Religious freedom as a right of free speech
194
6.1.
Free speech and religion - preliminary issues
195
6.1.1.
The degree of protection of religious speech - a matter for community resolution?
195
6.1.2.
Right to receive religious speech
195
6.1.3.
Equality of protection of the right to religious speech
196
6.1.4.
Discrimination in the right to religious speech by seemingly neutral procedural regulations
197
6.2.
Restrictions on proselytism as protection of community identity
198
6.2.1.
Restrictions on proselytism in the private sphere
200
6.3.
Freedom of religious speech and sanctions within a religious group
201
6.4.
Prohibition of blasphemous speech derives from an identity perception of religious freedom
202
6.4.1.
Prohibition of blasphemy as protection of the state
202
6.4.2.
Protection of religious feelings
203
6.4.3.
Protection of minorities
204
6.4.4.
The UK Parliamentary Select Committee Report
204
6.5.
Prohibition of religious hate speech: striking a balance between the identity and expressive perceptions of religious freedom
206
6.5.1.
Existing international protection
206
6.5.1.1.
National treatment
207
6.5.2.
Religious hate speech should be treated differently from other hate speech
208
6.6.
Conclusions
211
Notes
211
7.
Conclusion
219
7.1.
Theoretical conclusions
219
7.1.1.
Conceptual argument as to the existence of group rights
219
7.1.1.1.
Group rights are incommensurate with the concept of human rights
219
7.1.2.
Arguments as to the dual character of the right of religious freedom
220
7.1.2.1.
The dual character of religious freedom and the right of the individual both to belong to, and dissent from the group, must be upheld
220
7.1.3.
Arguments as to why individual rights should supersede group rights, even if group rights are recognized
220
7.1.3.1.
On entering a religious group, ỳou do not leave your rights at the door'
220
7.1.3.2.
The public character of religions mandates respect for individual rights
221
7.1.3.3.
There is no effective voluntary choice and so individual freedom must be respected both within and without groups
221
7.1.3.4.
Equal protection of members of minorities can and should be achieved through a conception of individual rights
222
7.1.4.
Argument as to further problems of religious freedom created by recognition of religious group rights in the state
223
7.1.4.1.
According religious group rights involves the state in evaluation of the social worth of religious groups, thereby breaching state neutrality
223
7.2.
Some practical implications
223
7.3.
A few final words
226
Notes
226
Bibliography
228
Index
241