THE RIGHT TO RELIGIOUS FREEDOM IN INTERNATIONAL LAW BETWEEN GROUP RIGHTS AND INDIVIDUAL RIGHTSPDF电子书下载

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 UNdocuments 11

1.3 The International Human Rights Covenants 12

1.4 The UNDeclaration on the Elimination ofAll Forms of Intolerance and ofDiscrimination 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 equali： prohibition of incitement 32

2.3.2 Group or individual： implementation of religious equality 33

2.4 Religiousfreedom 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

Part A： Legal status of religion in the state 67

Part 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 Religiousfreedom 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 inwolves 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 discriminato 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 offamily 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 offemale children 175

5.8 Wearing of headscarves： a conflict ofgroup 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 religiousfreedom 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 religiousfreedom 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 religions 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， ‘you 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