9780429264146 (electronic book) 0429264143 (electronic book) 9780429559174 (electronic book : EPUB) 0429559178 (electronic book : EPUB) 9780429563645 (electronic book : Mobipocket) 0429563647 (electronic book : Mobipocket) 9780429554704 0429554702
ICLARS Series on Law and Religion Ser.
This book examines the interpretation and application of the right to freedom of religion and belief of new minorities formed by recent migration by the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (HRC). New minorities are increasingly confronted with restrictions of their religious practices and have addressed their rights claims both to the ECtHR and the HRC through their individual complaint procedures, which resulted in several contradicting decisions. Based on a quantitative and qualitative empirical analysis of the relevant case law, focusing in particular on the reasoning adopted by the two bodies, this book finds that the HRC in its practice offers a significantly higher level of protection to new minorities than the ECtHR. Such divergence may be explained by various institutional and conceptual differences, of which the concept of the margin of appreciation is the most influential. It is contended that the extensive use of the concept of the margin of appreciation by the ECtHR in the case law regarding new minorities' right to freedom of religion and belief, and the absence of such concept in the HRC's case law, could be explained by different understandings of the role of an international human rights body in conflicts between the majority and minorities. This book argues that such divergence could be mitigated with various tools, such as the inclusion of cross-references to the case law of other relevant bodies as well as to instruments specifically established for the protection of minorities. The book will be of interest to academics, researchers and practitioners in the area of international human rights law, international public law in general and law and religion.
Description based upon print version of record. 3. The margin of appreciation left to states
Formatted Contents Note
Cover; Half Title; Series; Title; Copyright; Dedication; Contents; Acknowledgements; List of cases; List of other documents and materials; List of abbreviations; List of figures; List of tables; Introduction; 1 The protection of new minorities in a pluralist international legal order; I. About pluralism, constitutionalism and divergence; 1. Divergence within international human rights law; 2. Divergence between the ECtHR and the HRC; 3. Divergence and religious freedom; II. New minorities and religious freedom: conceptual issues 1. Legal definitions of the concepts 'minority' and 'new minority'2. New minorities as religious minorities?; 3. Distinguishing old and new minorities; III. Current challenges in the protection of new minorities' religious freedom; 1. Challenges encountered by new minorities; 2. New minorities and the international protection of their religious freedom; IV. Empirical research of the HRC's and the ECtHR's case law; 1. Data collection; 2. Data coding and analysis; 2 Comparing the standards developed for the protection of the right to freedom of religion by the ECtHR and the HRC I. The scope of the right to freedom of religion and belief1. Practice regarding Article 9 ECHR; 2. Practice regarding Article 18 ICCPR; II. Negative and positive obligations; III. Justification of an interference with the right to manifest religious beliefs; 1. Condition of legality; 2. Condition of legitimacy; 3. Condition of proportionality; IV. The concept of the margin of appreciation; 1. Approach of the ECtHR; 2. Approach of the HRC; V. Conclusion; 3 A typology of the case law regarding new minorities; I. The parties to the procedure 1. The applicants and respondent states in the case law of the EComHR and the ECtHR2. The authors and respondent states in the case law of the HRC; II. The adopted decisions; 1. The judgments and decisions adopted by the ECtHR and the EComHR; 2. The views adopted by the HRC; III. The legal questions posed; 1. Relevant legal questions in the case law of the ECtHR and the EComHR; 2. Relevant legal questions in the case law of the HRC; IV. Conclusion; 4 A closer look at the reasoning in the case law regarding new minorities; I. The existence of an interference . . .; 1. . . . with Article 9 ECHR 2. . . . with Article 18 ICCPRII. Positive state obligations . . .; 1. . . . in the case law of the ECtHR; 2. . . . in the case law of the HRC; III. The condition of legality . . .; 1. . . . in the case law of the ECtHR; 2. . . . in the case law of the HRC; IV. The condition of legitimacy . . .; 1. . . . in the case law of the ECtHR; 2. . . . in the case law of the HRC; V. The condition of proportionality in the case law of the ECtHR; 1. General principles regarding the condition of proportionality; 2. The condition of proportionality in the case law of the ECtHR
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