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A Multidisciplinary and Multi-Sited Study on the Role of Religious Belongings in Migratory and Integration Processes
Editor: Laura Zanfrini
Despite the worldwide dramatic spread of religious-based discriminations, persecutions, and conflicts, both official data and academic literature have underestimated their role as a root cause of contemporary migrations. This multidisciplinary study aims to overcome this gap.
Through an unprecedented collection of theoretical analysis and original empirical evidence, the book provides unique data and insights on the role of religion in the trajectories of asylum seekers and migrants – from the analysis of the religious geography of sending countries to the role of spirituality as a factor of resilience and adaptation.
By enhancing both academic and political debate on these issues, the book offers the possibility of regaining awareness of the close link between religious freedom and the quality of democracy.

Contributors include: Paolo Gomarasca, Monica Martinelli, Monica Spatti, Andrea Santini, Andrea Plebani, Paolo Maggiolini, Riccardo Redaelli, Alessia Melcangi, Giancarlo Rovati, Annavittoria Sarli, Giulia Mezzetti, Lucia Boccacin, Linda Lombi, Donatella Bramanti, Stefania Meda, Giovanna Rossi, Beatrice Nicolini, Cristina Giuliani, Camillo Regalia, Giovanni Giulio Valtolina, Paola Baracchetti, Maddalena Colombo, Rosangela Lodigiani, Mariagrazia Santagati, Fabio Baggio, Vera Lomazzi, Paolo Bonetti, Mario Antonelli, Luca Bressan, Alessandro Bergamaschi, Catherine Blaya, Núria Llevot-Calvet, Olga Bernad-Cavero, and Jordi Garreta-Bochaca.

Abstract

This article constitutes a summary of the findings of an inquiry into the utilization of the restriction clause of freedom of religion or belief in the course of restriction of this right in Turkey. It demonstrates that FoRB is restricted in various ways by public authorities which rarely involve a systematic application of the FoRB restriction clause. Despite Turkey’s human rights obligations in the area of freedom of religion or belief and the high status conferred to international human rights law under Article 90 of the Turkish Constitution the impact of international provisions on the protection of FoRB in Turkey remains insufficient and inconsistent. The right to freedom of religion or belief has been restricted through measures based on “established practice”, decisions of public authorities based on laws and regulations not directly dealing with this right and court decisions that are not in full compliance with international law.

In: Religion & Human Rights

Abstract

The Human Rights Committee—the treaty body established under the International Covenant on Civil and Political Rights—performs a vital function in supervising the Covenant’s implementation. This article presents an analytical account of the Committee’s approach to determining the permissibility of limitations on the freedom of religion or belief under the Covenant. It finds that the Committee has set out certain primary legal criteria when determining the permissibility of a limitation. The Committee has then articulated certain additional normative constraints that apply to states’ authority to limit rights—such as the requirement that the limitation be compatible with the principle of non-discrimination. Based on an analysis of the Committee’s general comments and jurisprudence, the author argues that the Committee has offered a path towards imposing on states a heavier burden to justify limitations on the freedom of religion or belief.

In: Religion & Human Rights
In: Religion & Human Rights

Abstract

Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.

In: Religion & Human Rights

Abstract

The present article analyses cases from top Brazilian courts and has received contributions from several scholars, practitioners, and public officials to better understand the use of limitations to freedom of religion or belief in the country. The Brazilian Constitution provides for the right to freedom of religion or belief as a fundamental right, and other domestic legislation regulate the right, including those implementing international human rights treaties that Brazil has ratified. These laws are easily accessible. Nevertheless, domestic courts seldom rely on such international instruments or the case-law of international bodies in their judgments. Therefore, although these instruments are in force in Brazil, domestic courts do not expressly use or refer to the clauses of permissible limitations of the relevant international and regional human rights instruments, creating a scenario with low levels of legal certainty for those seeking the protection of the right to freedom of religion or belief.

In: Religion & Human Rights
Author: T. Jeremy Gunn

Abstract

Courts and tribunals involved in evaluating whether states have applied limitations clauses appropriately should pay increased attention to the core underlying issues of the parties’ respective burdens of proof, the standards of proof, and identifying which parties are required to prove which assertions. The European Court of Human Rights has not articulated with sufficient clarity the rules of evidence that apply to its proceedings, thereby permitting ad hoc and inconsistent evaluations of issues pertaining to the freedom of religion or belief. The Court should take seriously its obligation to clarify its standards and thereafter apply them.

In: Religion & Human Rights

Abstract

The article analyses legislative changes in the area of freedom of religion or belief in Denmark between 2014 and 2018. Recent legislation has placed pressure particularly on religious minorities to limit certain religious manifestations, and it is possible to trace a certain “juridification” of freedom of religion, by which the values underlying freedom of religion according to international standards are not always fully reflected. Additionally, there is a tendency to address societal concerns by means of legal interventions. The article argues that by making increased use of soft law developed by the EU, the Council of Europe and the UN, Danish lawmakers would be able to reach a more comprehensive understanding of freedom of religion or belief as well as include non-legal solutions to societal concerns. It further argues that while Denmark’s national (Lutheran) church possess the majority of constituents, nonetheless its privileged position may paradoxically strengthen freedom of religion for religious minorities.

In: Religion & Human Rights

Abstract

This article demonstrates legal and non-legal limitations of freedom of religion or belief (FoRB) in Georgia, characterized by an absence of relevant case law of common courts about restrictions to FoRB with legitimate aims. Instead, the State is using various instruments for interference, such as administrative barriers and artificial obstacles for religious communities. In certain occasions, its policy and practice do not comply with the constitutional principles and international human rights commitments of the country. The State’s preferential treatment of the dominant and influential religious institution, the Georgian Orthodox Church, ostracises other religious communities. This is further aggravated by the attempts of securitising and weaponising FoRB.

In: Religion & Human Rights

Abstract

The landscape of freedom of religion or belief (FoRB) in Indonesia has been shaped by two elements: first, the progressive adoption of human rights in the new laws and amended constitution, as a result of the democratization which started in 1998; second, the old governance of religion which acknowledges limited religious pluralism and emphasizes harmony over freedom. A striking feature resulting from this combination is the addition of “religious values” as a ground of FoRB limitation in the new chapter on human rights in the amended Constitution, which otherwise draws its inspiration from the ICCPR and other international human rights covenants. Indonesian “public order” and “public morals” are understood to consist of, among other things, respect and protection of religious values. While the emphasis on religious values and public order produces most restrictions, when it comes to limitations to FoRB on grounds of public health, the government seems reluctant to impose necessary restrictions.

In: Religion & Human Rights