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M. Joel Voss

Abstract

There is general agreement that families are considered an important building block of society. However, in international fora, there is significant disagreement about what constitutes family. This article discusses the development of the Protection of the Family initiative at the UN’s primary human rights body, the UN Human Rights Council. This article uses Protection of the Family resolutions at the Council to build upon theories of norm contestation in international relations and international law. Elite-level interviews and participant observation of Council meetings on the four Protection of the Family resolutions adopted at the Council show that both advocates and opponents of Protection of the Family argue that their positions adhere to universal rights and prior law while their opponents are revisionist. In addition, the article illustrates a series of new strategies adopted by advocates of Protection of the Family that may be used in other resolutions to advance human rights agendas.

Jayeel Cornelio and Robbin Charles M. Dagle

Abstract

This article spells out the ways in which religious freedom has been deployed against proponents of same-sex marriage and gender equality in the Philippines. While the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community and allies have appealed to religious freedom to gain equal rights under the law, conservative Christian entities have fought back by invoking the same notion. They have appropriated religious freedom, which has historically been interpreted by the courts in favour of individual liberties, to defend majoritarian values surrounding sexuality. This article describes this move as the weaponisation of religious freedom in defence of the dominant religion and an assumed majority of Filipinos whose moral sensibilities are purportedly under attack. Towards the end, the article relates this weaponisation to the experience of the Catholic Church in the contemporary public sphere and the militant character of Christianity that continues to view the Philippines as a Christian nation.

Balaniyot, Baths and Beyond

Israel’s State-Run Ritual Baths and the Rights of Women

Nahshon Perez and Elisheva Rosman-Stollman

Ritual immersion in Israel has become a major point of contention between Israeli-Jewish women and the state-funded Chief Rabbinate of Israel. In order to conduct a religious household, Orthodox Jewish women are required to immerse in a ritual bath (mikveh) approximately once a month. However, in Israel, these are strictly regulated and managed by the Chief Rabbinate, which habitually interferes with women’s autonomy when immersing. The article presents the case, then moves to discuss two models of religion-state relations: privatization and evenhandedness (roughly the modern version of nonpreferentialism), as two democratic models that can be adopted by the state in order to properly manage religious services, ritual baths included. The discussion also delineates the general lessons that can be learned from this contextual exploration, pointing to the advantages of the privatization model, and to the complexities involved in any evenhanded approach beyond the specific case at hand.

Mikhail Antonov

This paper analyzes the cultural constraints imposed in the Russian legal system by the prevailing social philosophy, which is characterized by a significant degree of religious conservatism and communitarianism. This conservatism is predictably opposed to sexual minorities and to those who want to defend or justify them. The author concludes that this philosophy strongly affects decision-making in Russian courts, and can sometimes overrule the provisions of the Russian Constitution and the laws that formally grant protection to sexual minorities. In turn, this conservative social philosophy and communitarian morality are based on religious patterns that are still shaping the mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and other actors in the Russian legal system, who to some extent are subject to the general perception of what is just, acceptable, and reasonable in society, and are factually bound by this perception.

Anicée Van Engeland

According to some interpretations of Islam supported by gender activists, the veil can be perceived as a passport that enables women to participate in public affairs. This argument has been overlooked by the courts, including the European Court of Human Rights. The latter has adopted a discourse that considers the veil to be a threat to public order and gender equality, and more recently, an obstacle to social cohesion. By doing so, the Court has excluded veiled European Muslim women from the public sphere. The Court has justified curbing freedom of religion by granting states a wide margin of appreciation on the basis of the concept of “living together.” I argue that the Court needs to take the “passport veil” into account to be consistent with its argument on living together. A shift of approach and discourse would constitute a new way of understanding integration through the veil.

Ross Holder

Abstract

As an officially recognised minority nationality in China, the Uyghurs’ unique religious identity is ostensibly protected under Chinese national law. In reality, such protections are limited in practice, with frequent claims by Uyghur activists, human rights NGOs and scholars that government policies result in the religious discrimination of the Uyghur population in Xinjiang. In light of the inefficacy of state legislation in protecting the Uyghurs’ religious freedoms, this article considers the protections offered within the Human Rights Treaty System of the United Nations (UN), of which China is both a charter member and an increasingly active participant. However, any attempt to consider Freedom of Religion or Belief protections within the UN’s core treaties remains frustrated as China has yet to ratify the International Covenant on Civil and Political Rights, which is the sole UN human rights instrument to contain provisions dedicated to religious and minority rights. To overcome this issue, this article argues that acts of religious discrimination against the Uyghur minority may also fall into contention with the protections contained within the International Convention on the Elimination of All Forms of Racial Discrimination, a treaty that has been ratified by China and is therefore legally obligated to comply with.

Charlotte Helen Skeet

Abstract

This article provides an anti-Orientalist critique of jurisprudence within the European Court of Human Rights. Discussion is located in the context of the longstanding debate over what it is to be “European” and an awareness of how these wider discourses shape rights adjudication at national and intra-national levels in Europe. Argument draws on literature from post-colonial theorists, cultural studies, and feminist legal theory which identify and discuss “Orientalist” discourses to analyse the production of legal knowledge and jurisprudence from the European Court of Human Rights. The article argues that Orientalist discourses affect the ways that the Court constructs and positions both the claimant and the respondent state in human rights claims. These constructions influence cases involving Muslim claimants and have a particularly negative impact on the outcome of claims by visibly-Muslim women. The final part of the article suggests ways that these negative discourses and constructions can be countered.

Honest Scales

Challenging Structural Discrimination in Alberta v. Hutterite Brethren of Wilson Colony

William Kenny

The decision in Alberta and Hutterite Brethren of Wilson Colony refocused attention on the role played by the final limb of the Oakes test when considering the proportionality of the limitation of a Charter right. This article seeks to re-examine this decision and challenge the structural discrimination it created by requiring minorities whose belief gives a religious value to a facially utilitarian practice which may not be apparent when considered from a secular perspective. In particular it examines the potential benefits of allowing a liberal perspective of group rights to inform the weight courts’ give to the detriment faced by a community and argues that this revised approach to balancing would result in outcomes more reflective of the values codified in the Charter.

The Legal Status of Religious Groups in Argentina

Toward a Multi-Confessional System

Fernando Arlettaz

The Argentinian Constitution of 1853 established a religious policy based on two main principles: freedom of religion and the privileged status of the Catholic Church. In 1966, an agreement with the Catholic Church eliminated the power of the government to interfere in ecclesiastical matters, but maintained the privileged status of Catholicism. Today, the religious configuration of Argentinian society differs greatly from that of the 19th century. Amidst increasing religious diversity, some legal changes point to the transformation of the Argentinian regime from a nearly confessional state into a multi-confessional, yet not an egalitarian one.

Jeroen Temperman

Article 20(2) of the un’s International Covenant on Civil and Political Rights (iccpr) is an odd human rights clause. It provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Accordingly, this provision does not appear to codify a fundamental right but rather a sui generis state obligation. The present article aims at providing a legal taxonomy of this international incitement clause, ultimately also answering the question as to whether, despite its unique formulation as speech prohibition, it contains a justiciable right to protection from incitement.