CONTENTS
Table of Authorities = xv
List of Abbreviations and Defined Terms = xxv
1 Introduction = 1
1.1 SCOPE OF THE BOOK = 3
1.1.1 Overview = 3
1.1.2 Materials = 4
1.2 AN OVERVIEW OF THE KEY PROVISIONS ON FREEDOM OF RELIGION AND BELIEF IN THE CONVENTION = 5
1.3 THE ROLE OF THE COURT AND THE COMMISSION = 8
1.3.1 Procedure of the Commission = 8
1.3.2 Procedure of the Court = 9
1.3.3 Changes Under Protocol 11 = 10
1.4 ADMISSIBILITY = 11
1.5 STANDING = 12
1.5.1 Churches and Other Religious Organizations = 12
1.5.2 Legal Persons = 14
1.6 CONCLUSION = 15
2 Towards a Theory of Freedom of Religion or Belief = 18
2.1 INTRODUCTION = 18
2.2 RELIGION AND THE STATE IN EUROPE = 19
2.3 INSTRUMENTAL ARGUMENTS = 22
2.4 THE HISTORICAL JUSTIFICATION = 24
2.5 RELIGIOUS ARGUMENTS = 25
2.6 RELIGIOUS FREEDOM AND RELIGIOUS TRUTH = 28
2.7 AUTONOMY AND PLURALISM = 29
2.8 CONCLUSION : IMPLICATIONS FOR INTERPRETATION = 32
3 Historical Background = 34
3.1 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS = 34
3.2 DEVELOPMENTS TN THE COUNCIL OF EUROPE = 38
3.2.1 The Limitations of the Travaux Pr$$e'$$paratoires = 38
3.2.2 The Drafting of Article 9(1) : Freedom of Religion or Belief = 39
3.2.3 The Drafting of Article 9(2) : Limitations on Freedom of Religion = 41
3.2.3.1 Formulations of Article 9(2) = 41
3.2.3.2 The Proposed Turkish／Swedish Amendments 42
3.2.3.3 Scope of the Final Limitations Clause = 44
3.2.4 The Drafting of Article 2, First Protocol : Belief and Education = 45
3.3 RATIFICATION OF AND RESERVATIONS TO THE CONVENTION = 48
3.4 CONCLUSION = 49
4 Defining Religion or Belief = 51
4.1 INTRODUCTION = 51
4.2 THE TEXT OF ARTICLE 9 = 52
4.3 THE CASE LAW = 53
4.3.1 A Generally Liberal Approach = 53
4.3.2 Political and Philosophical Beliefs = 55
4.3.3 individualized Religions or Beliefs = 57
4.4 A BRIEF COMPARISON WITH ALTERNATIVE APPROACHES = 59
4.4.1 International Law Definitions = 60
4.4.2 Domestic Courts = 62
4.5 CONCLUSION : A DEFINITION OF RELIGION AND BELIEF = 64
5 Freedom of Religion or Belief = 67
5.1 THE IMPORTANCE OF THE FREEDOM = 67
5.2 A POSITIVE RIGHT TO FREEDOM OF RELIGION OR BELIEF = 69
5.3 THE NEGATIVE OBLIGATION = 72
5.3.1 The Primacy of the Private Sphere = 72
5.3.2 The Internal／External Dichotomy = 74
5.3.3 Burdens on Belief = 76
5.4 THE STATE CHURCH = 80
5.4.1 Financial Arrangements = 81
5.4.2 Control over Church Personnel = 84
5.5 FREEDOM OF RELIGION AND BELIEF AND THE FORUM INTERNUM IN EDUCATION = 88
5.5.1 Background = 88
5.5.2 The Scope of the School's Authority = 90
5.5.3 The Limits on the School's Discretion = 92
5.5.4 Application in Later Cases = 93
5.6 FREEDOM TO CHANGE RELIGION OR BELIEF = 97
5.7 CONCLUSION = 102
6 The Right to Manifest a Religion or Belief = 103
6.1 INTRODUCTION = 103
6.2 ALONE OR IN A COMMUNITY WITH OTHERS, IN PUBLIC OR IN PRIVATE = 103
6.3 WORSHIP, TEACHING, PRACTICE, AND OBSERVANCE = 105
6.3.1 The Exclusive or Inclusive Nature of the List = 105
6.3.2 Worship and Observance = 107
6.3.3 Teaching = 108
6.3.4 Practice = 110
6.4 THE ARROWSMITH CASE : THE NECESSITY TEST OF MANIFESTATION = 111
6.4.1 Factual Background = 111
6.4.2 The Decision of the Commission = 112
6.4.3 Dissenting Opinions in Arrowsmith = 114
6.5 THE ARROWSMITH TEST = 115
6.5.1 The Nature of the Test = 115
6.5.2 Application of the Arrowsmith Test = 116
6.5.3 The Applicability of the Test Outside 'Practice' = 117
6.6 ANALYSIS OF THE ARROWSMITH TEST = 120
6.6.1 Methodology of the Court and Commission in Determining Necessity = 120
6.6.2 Evidence of Necessity = 121
6.6.3 Types of Belief Advantaged by Arrowsmith = 122
6.6.4 Alternative Approaches to Manifestations = 123
6.6.5 United Nations Material = 125
6.7 'CONTRACTING OUT' OF RIGHTS = 127
6.7.1 The Voluntary Model and State Churches = 128
6.7.2 The Voluntary Model in Other Contexts = 129
6.8 CONCLUSION = 132
7 Limitations on Manifestations of Religion or Belief = 133
7.1 INTRODUCTION = 133
7.2 THE APPROACH TO ARTICLE 9(1) IN CASES THAT DEAL WITH ARTICLE 9(2) = 134
7.2.1 Cases That Do Not Address Article 9(1) Issues = 134
7.2.2 Cases That Do Find a Breach of Article 9(1) = 135
7.3 THE GENERAL APPROACH TO LIMITATION CLAUSES = 136
7.4 PRESCRIBED BY LAW = 138
7.4.1 The General Approach = 138
7.4.2 Prescribed by Law and Article 9 = 139
7.5 NECESSARY IN A DEMOCRATIC SOCIETY = 142
7.5.1 The Role of the State in Determining Necessity and the Margin of Appreciation = 142
7.5.2 The Margin of Appreciation in Article 9 Cases = 143
7.5.3 Proportionality = 145
7.6 LEGITIMATE AIM = 147
7.7 THE GROUNDS FOR RESTRICTING MANIFESTATIONS OF RELIGION OR BELIEF = 149
7.7.1 Necessary in the Interests of Public Safety and for the Protection of Public Order = 149
7.7.2 Necessary for the Protection of Health = 155
7.7.3 Necessary for the Protection of Morals = 159
7.7.4 Necessary for the Protection of the Rights and Freedoms of Others = 160
7.8 ARTICLE 15 = 165
7.9 CONCLUSION = 166
8 Neutral and Generally Applicable Laws = 168
8.1 INTRODUCTION = 168
8.2 CONSCIENTIOUS OBJECTION TO MILITARY SERVICE = 170
8.2.1 The Traditional Approach to Conscientious Objection : Article 4 as an Exception to Article 9 = 170
8.2.2 The Traditional Approach to Discrimination Cases : Articles 9 and 14 = 173
8.2.3 Developments in International Law = 175
8.2.4 A New Approach to Conscientious Objection = 176
8.3 THE CASE LAW ON GENERAL AND NEUTRAL LAWS = 179
8.3.1 General and Neutral Laws and the Arrowsmith Test = 180
8.3.2 A More General Principle = 181
8.3.3 Inconsistency Towards General and Neutral Law Cases = 184
8.4 A POLICY ANALYSIS OF THE GENERAL AND NEUTRAL LAW PROBLEM = 186
8.4.1 The Article 9(1) Approach = 186
8.4.2 The Burden on the State = 189
8.4.3 The Social Anarchy Argument = 191
8.4.4 Weakening of Article 9(2) = 194
8.4.5 Minorities and Exemptions = 196
8.5 CONCLUSION = 198
9 Conclusion = 200
9.1 PROBLEMS WITH THE CONVENTION CASE LAW = 200
9.1.1 Failure to Recognize the Importance of the Right = 200
9.1.2 Inconsistency and Lack of Clarity = 202
9.1.3 Evidence and Objectivity = 203
9.1.4 Deference to States = 204
9.2 RECONCEPTUALIZING FREEDOM OF RELIGION OR BELIEF = 204
9.2.1 Article 9(1) = 204
9.2.2 Article 9(2) = 206
9.3 TRENDS IN THE COURT = 207
9.4 CONCLUSION = 208
Select Bibliography = 211
BOOKS = 211
CHAPTERS = 213
ARTICLES AND REPORTS = 214
COUNCIL OF EUROPE DOCUMENTS = 217
Index = 219
