Legal Code of Religious Minority Rights : Sources in International and European Law

"This volume presents a systematic collection of the various international legal sources that define the rights of religious minorities. In a time of increasing tensions around religious minorities, this volume presents a systematic collection of international and European documents on the protection and promotion of religious minorities' rights. The code includes documents from the United Nations, the Council of Europe, the Organization for Security and Cooperation in Europe and the European Union. An index system connects the various sources and norms, and emphasizes the strengths and the weaknesses in the legal frameworks of international and European institutions. While allowing for further research on the historical and conceptual development in the area, the code provides the reader with a new, easily accessible tool facilitating experts and actors who wish to improve the knowledge and protection of religious minorities. This book will be an invaluable resource for students, academics and researchers interested in law and religion, international law, public law and human rights law, the code is also a powerful tool for minorities themselves, and for advocates of their rights"-- Provided by publisher Cover Half Title Series Title Copyright Contents Detailed Contents Introduction I. The genealogy of the notion of religious minority in international and European law: Introductory remarks II. Origin III. Implementation a) New legal sources b) Social groups c) Foreigners d) The principle of non-discrimination IV. Synergy a) The explicit synergy b) The implicit synergy V. Conclusion Law reading guides I United Nations Section 1 International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and Political Rights A. Legal definition A.1. Francesco Capotorti (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (ST/HR(05)/H852/no.5), 1979. Chapter I. The concept of a minority A. Analysis of the concept of a minority B. The question of official recognition by States of ethnic, religious or linguistic minorities within their population A.2. Jules Deschênes (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), Proposal concerning a definition of the term “minority” (E/CN.4/Sub.2/1985/31), 1985. Introduction I. Elimination of non-problems A. The question of indigenous populations B. The question of resident aliens C. Relationship between groups and their members II. Isolation of the variables of the minority concept A. The will of the minority to survive B. The number of members of the minority III. Identification of the constants in the concept of minority A. National minorities B. Judicial opinions C. Quasi-judicial opinions Human Rights Committee D. Doctrinal opinions E. Observations by Governments IV. Conclusion: a definition of minority A.3. UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities) (CCPR/C/21/Rev.1/Add.5), 8 April 1994. A.4. Office of the High Commissioner for human rights (OHCHR), Minority Rights: International Standards and Guidance for Implementation (HR/PUB/10/3), 2010. I. Definitions A. Who are minorities under international law? B. Are indigenous peoples considered to be minorities? C. Do minority rights apply to non-citizens? D. What is the relationship between minorities, non-citizens and stateless persons? A.5. Forum on Minority Issues, Recommendations of the Forum on Minority Issues at its Sixth Session: Guaranteeing the Rights of Religious Minorities (A/HRC/25/66), 26 and 27 November 2013. A.6. UN Office of the High Commissioner for Human Rights (OHCHR), The inclusion of religious minorities in consultative and decision-making bodies, 2014. Who are religious minorities? A.7. Fernand de Varennes (Special Rapporteur on Minority Issues), Report of the Special Rapporteur on Minority Issues (A/74/160), 15 July 2019. IV. Conclusions and recommendations A.8. Fernand de Varennes (Special rapporteur on minority issues), Report of the Special Rapporteur on Minority Issues, Effective Promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (A/75/211), 21 July 2020. 3. Religious or belief minorities B. Right to profess and practise religion or belief B.1. Francesco Capotorti (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (ST/HR(05)/H852/no.5), 1979. IV. Application of the principles set forth in Article 27 of the International Covenant on Civil and Political Rights B. The right of persons belonging to religious minorities to profess and practise their own religion Celebration of marriage Other matters of personal status Observance of religious holidays Conscientious objection to military service Taking of an oath B.2. UN Human Rights Committee (HRC), CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) (CCPR/C/21/Rev.1/Add.4), 30 July 1993. B.3. UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities) (CCPR/C/21/Rev.1/Add.5), 8 April 1994. B.4. UN Human Rights Committee (HRC), Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v. Sri Lanka (CCPR/C/85/D/1249/2004), communication no. 1249/2004, 4 April 2001. Factual background The complaint The State party’s submissions on admissibility and merits Authors’ comments on the State party’s submissions Issues and proceedings before the Committee Consideration of the merits Consideration of the merits B.5. UN Human Rights Committee (HRC), Gareth Anver Prince v. South Africa (CCPR/C/91/D/1474/2006), Communication No. 1474/2006, 14 November 2007. Facts as presented by the author The complaint The State party’s submission on admissibility and merits Issues and proceedings before the Committee Consideration of admissibility Consideration of merits C. Non-discrimination C.1. Francesco Capotorti (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (ST/HR(05)/H852/no.5), 1979. III. The position of persons belonging to ethnic, religious and linguistic minorities in the society in which they live C.2. UN Human Rights Committee (HRC), General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion: Art. 18 (CCPR/C/21/Rev.1/Add.4), 30 July 1993. C.3. UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities) (CCPR/C/21/Rev.1/Add.5), 8 April 1994. C.4. UN Human Rights Committee (HRC), Fatima Anderson v. Denmark (CCPR/C/99/D/1868/2009), Communication No. 1868/2009, 7 September 2010. Decision on admissibility The facts as presented by the author The complaint The state party’s observations on the admissibility and merits of the communication Issues and proceedings before the Committee Consideration of admissibility C.5. UN Office of the High Commissioner for human rights (OHCHR), Minority Rights: International Standards and Guidance for Implementation (HR/PUB/10/3), 2010. C. Equality and non-discrimination D. Right to culture D.1. UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities) (CCPR/C/21/Rev.1/Add.5), 8 April 1994. E. Right to education E.1. Francesco Capotorti (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (ST/HR(05)/H852/no.5), 1979. Section 2 Convention relating to the Status of Refugees Definition of the term “refugee” Non-discrimination Religion Protocol relating to the status of refugees General provision Co-operation of the national authorities with the United Nations Information on national legislation Settlement of disputes Accession Federal clause Reservations and declarations Entry into protocol Denunciation Notifications by the Secretary-General of the United Nations Deposit in the Archives of the Secretariat of the United Nations A. Right to asylum A.1. UN Refugee Agency (UNHCR), Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02), 7 May 2002 B. UNHCR’s definition Relevance of size A.2. UN Refugee Agency (UNHCR), Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (HCR/GIP/04/06), 28 April 2004. I. Introduction II. Substantive analysis A. Defining “religion” B. Well-founded fear of persecution a) General Section 3 Convention on the elimination of all forms of discrimination against women Part I A. Discrimination against minority women A.1. Committee on the Elimination of Discrimination against Women (CEDAW), Concluding Comments of the Committee on the Elimination of Discrimination Against Women: Greece (CEDAW/C/GRC/CO/6), 2007. A.2. UN Human Rights Council (HRC), Freedom of religion or belief. Report of the Special Rapporteur on freedom of religion or belief (A/HRC/43/48), 27 February 2020. Section 4 Convention on the rights of the child A. Right to education A.1. Office of the High Commissioner for Human Rights, Promoting and Protecting Minority Rights. A Guide for Advocates (HR/PUB/12/7), 2012. Minority children Basic education and gender equality B. Right to maintain religion or belief B.1. Special Rapporteur on freedom of religion or belief – Independent Expert on minority issues – Special Rapporteur on the sale of children, child prostitution and child pornography – Special Rapporteur on trafficking in persons, especially women and children – Chair-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice – Special Rapporteur on violence against women, its causes and consequences, Special procedures of the Human Rights Council, Communication 29 May 2013 – Iraq (IRQ 2/2013). Section 5 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities A. Right to existence A.1. UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (E/CN.4/Sub.2/AC.5/2005/2), 4 April 2005. A.2. UN Office of the High Commissioner for human rights (OHCHR), Minority Rights: International Standards and Guidance for Implementation (HR/PUB/10/3), 2010. B. Promotion and protection of the identity of minorities A.3. Forum on Minority Issues, Note by the Independent Expert on minority issues, Rita Izsák, on guaranteeing the rights of religious minorities (A/HRC/FMI/2013/2), 3 October 2013. III. Legal framework A. Protection of the existence of and prevention of violence against religious minorities B. Promotion and protection of the identity of religious minorities B. Right to culture B.1. UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (E/CN.4/Sub.2/AC.5/2005/2), 4 April 2005. C. Right to profess and practise religion or belief C.1. UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (E/CN.4/Sub.2/AC.5/2005/2), 4 April 2005. III. Interpretation of and comments on the title and the individual articles The title and scope of the Declaration IV. Framing questions for action A. Does the situation of persons belonging to religious minorities require particular attention? D. Right to participation D.1. UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (E/CN.4/Sub.2/AC.5/2005/2), 4 April 2005. D.2. UN Human Rights Council (HRC), Recommendations of the second session of the Forum on Minority Issues on minorities and effective political participation (A/HRC/13/25), 12 and 13 November 2009. I. Introduction II. Recommendations A. Governments (national, regional, local) and parliaments B. Political parties C. National human rights institutions D. Civil society E. United Nations human rights mechanisms F. The international community and United Nations agencies G. The media D.3. Office of the High Commissioner for human rights, Minority Rights: International Standards and Guidance for Implementation (HR/PUB/10/3), 2010. D. Effective and meaningful participation D.4. UN Office of the High Commissioner for Human Rights (OHCHR), The inclusion of religious minorities in consultative and decision-making bodies, 2014. Why should religious minorities participate in decision-making? How the participation of religious minorities facilitates conflict prevention? Participation in consultative and decision-making bodies: positive measures Obstacles hindering religious minorities’ participation in consultative structures E. Right to association E.1. UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (E/CN.4/Sub.2/AC.5/2005/2), 4 April 2005. E.2. UN Office of the High Commissioner for Human Rights, Minority Rights: International Standards and Guidance for Implementation (HR/PUB/10/3), 2010. C. Identifying priorities to address the situation of minorities F. Non-discrimination F.1. High Commissioner for Human Rights (OHCHR), Promoting and Protecting Minority Rights. A Guide for Advocates (HR/PUB/12/7), 2012. Part one – minority rights focus in the United Nations Chapter I – Overview: development of minority rights in international law The United Nations Chapter II – The Office of the United Nations High Commissioner for Human Rights F.2. Forum on Minority Issues, Note by the Independent Expert on minority issues, Rita Izsák, on guaranteeing the rights of religious minorities (A/HRC/FMI/2013/2), 3 October 2013. III. Legal framework F.3. UN Secretary General, Guidance note of the Secretary General on racial discrimination and protection of minorities, March 2013. II. Normative and conceptual foundations III. Guiding principles for effective UN action 1. Ensure coordinated engagement of all three pillars 2. Pursue a human rights-based approach 3. Address multiple and intersecting forms of discrimination 4. Apply a gender perspective 2 Council of Europe Section 1 European Convention on Human Rights Protocols 1. Enforcement of certain Rights and Freedoms not included in Section I of the Convention A. Right to profess and practise religion or belief A.1. European Courts of Human Rights, Case of Serif c. Greece (Application no. 38.178/97), 14 March 2000. The facts I. The circumstances of the case A. The background of the case B. The criminal proceedings against the applicant II. Relevant law and practice A. International treaties B. The legislation on the muftis C. Legislative decrees under Article 44 § 1 of the Constitution D. Articles 175 and 176 of the Criminal Code E. The legislation on ministers of “known religions” The Law I. Alleged violation of Article 9 of the Convention A. Existence of an interference B. “Prescribed by law” C. Legitimate aim D. “Necessary in a democratic society” II. Alleged violation of Article 10 of the Convention III. Application of Article 41 of the Convention A. Damage B. Costs and expenses C. Default interest B. Right to free self-identification B.1. European Courts of Human Rights, GC, Case of Molla Sali c. Greece (Application no. 20.452/14), 19 December 2018. The facts I. The circumstances of the case A. Proceedings in the Rodopi Court of First Instance B. Proceedings in the Thrace Court of Appeal C. Proceedings in the Court of Cassation D. Proceedings in the Court of Appeal following remittal of the case E. Proceedings in the Court of Cassation concerning the Court of Appeal’s judgment after remittal of the case F. Proceedings in the Istanbul Civil Court of First Instance 3. The Court’s assessment (a) Preliminary remarks and method followed (b) Applicability of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 (i) General principles (ii) Application of those principles in the present case (c) Compliance with Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 (i) General principles (ii) Application of those principles to the present case (a) Whether there was an analogous or relevantly similar situation and a difference in treatment (b) Whether the difference in treatment was justified II. Application of Article 41 of the Convention Section 2 Framework Convention for the Protection of National Minorities A. Right to profess and practise religion or belief A.1. Advisory Committee on the Framework Convention for the protection of national minorities, Compilation of Opinions of the Advisory Committee relating to Article 8 of the Framework Convention for the Protection of National Minorities (3rd cycle), 13 May 2016. Present situation Recommendation B. Right to association B.1. Advisory Committee on the Framework Convention for the protection of national minorities, Compilation of Opinions of the Advisory Committee relating to Article 8 of the Framework Convention for the Protection of National Minorities (3rd cycle), 13 May 2016 Present situation Recommendations C. Right to education C.1. Advisory Committee on the Framework Convention for the protection of national minorities, Compilation of Opinions of the Advisory Committee relating to Article 8 of the Framework Convention for the Protection of National Minorities (4th cycle), 18 September 2017. Present situation Recommendation 3 Organization for Security and Co-operation in Europe (OSCE) Section 1 Conference for Security and Co-operation in Europe, Helsinki Decisions, 10 July 1992 Conference on Security and Co-operation in Europe, Budapest Summit Declaration, 21 December 1994 A. Definition of national minorities A.1. Office of the OSCE High Commissioner on National Minorities, The Ljubljana Guidelines on Integration of Diverse Societies, 7 November 2012. Introduction B. Right to profess and practise religion or belief B.1. OSCE Office for Democratic Institutions and Human Rights (ODIHR), Guidelines on the Legal Personality of Religious or Belief Communities, 2014. Part 1. The freedom of religion or belief and permissible restrictions in general II. The freedom to manifest religion or belief in community with others C. Right to legal personality C.1. OSCE Office for Democratic Institutions and Human Rights (ODIHR), Guidelines on the Legal Personality of Religious or Belief Communities, 2014. D. Right to education D.1. OSCE High Commissioner on National Minorities (HCNM), The Hague Recommendations regarding the Education Rights of National Minorities & Explanatory Note, October 1996. General introduction The spirit of international instruments Public and private institutions Minority education at primary and secondary levels Minority education in vocational schools D.2. OSCE-ODIHR, Advisory Council of Experts on Freedom of religion or Belief, Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, 2007. Minority rights E. Right to participation E.1. Office of the OSCE High Commissioner on National Minorities, The Ljubljana Guidelines on Integration of Diverse Societies, 7 November 2012. c. Participation in cultural and religious life F. Right to access to justice F.1. OSCE High Commissioner on National Minorities, The Graz Recommendations on Access to Justice and National Minorities, November 2017. Introduction ii. Imprisonment G. Right to access to media G.1. Office of the OSCE High Commissioner on National Minorities, The Tallinn Guidelines on National Minorities and the Media in the Digital Age & Explanatory Note, February 2019. Introduction The Tallinn Guidelines on National Minorities and the Media in the Digital Age I. Enabling environment for freedom of expression and media freedom II. Media environment III. Pluralism and diversity IV. Media, information technologies and conflict prevention 4 European Union Section 1 Charter of Fundamental Rights of the European Union Chapter III Equality Non-discrimination Cultural, religious and linguistic diversity Treaty on the European Union (arts 2 and 49); Treaty on the Functioning of The European Union (arts 10, 17 and 19) A. Non-discrimination A.1. European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, Towards a comprehensive EU protection system for minorities, August 2017. Non-discrimination is the first and traditional EU approach to minority protection The second approach is that of minority rights Religious minorities B. Right to profess and practise religion or belief B.1. Council of the European Union, EU Guidelines on the promotion and protection of freedom of religion or belief, 24 June 2013. I. Introduction A. Reason for action B. Purpose and scope C. Definitions Right to have a religion, to hold a belief, or not to believe Right to manifest one’s religion or belief II. Operational guidelines B. Priority areas of action Section II Charter of Fundamental Rights of the European Union Right to asylum Treaty on the functioning of the European Union Title V Area of freedom, security and justice Chapter 1 General provisions Chapter 2 Policies on border checks, asylum and immigration Chapter I General provisions Definitions Reasons for persecution A. Right to Asylum A.1. European Asylum Support Office (EASO), country guidance Afghanistan, June 2019. Common analysis COI summary Risk analysis Nexus to a reason for persecution Common analysis COI summary Risk analysis Nexus to a reason for persecution Chronological index of institutional documents and judgements Chronological index of legal sources Index of rights and principles Principle of non-discrimination Right to access to media Right to access to justice Right to association Right to asylum Right to culture Right to education Right to existence Right to free self-identification Right to legal personality Right to maintain religion or belief Right to participation Right to profess and practise religion or belief Bibliography Name index Subject index