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From the January/February, 2009
issue of Touchstone

 

Protection Thicket by William L. Saunders

Protection Thicket

Freedom of Religion: UN and European Human Rights Law and Practice
by Paul M. Taylor
Cambridge University Press, 2006
(436 pages, $51.00, paperback)

reviewed by William L. Saunders, Jr.

That is the immodest title of a thorough but limited treatment of the subject by Paul Taylor, a London barrister (that is, a lawyer who goes to court). The limit is expressed in the subtitle, that is, the book focuses on human rights practice in the UN and European systems. The book is not a philosophical or theological reflection upon the subject of religious freedom; rather, it is a highly technical and very thorough examination of the law of religious freedom as it has developed in the UN and European Union. As such, it is not likely to be of interest to general Touchstone readers, though for those, such as myself, who are human rights attorneys, it is a treasure trove.

Two Distinct Systems

As noted, Taylor treats two human rights legal systems, those of the UN and the EU, and they are quite different from each other, though they have, perhaps not surprisingly, many features in common. The UN system is based on a treaty, the International Covenant on Civil and Political Rights (ICCPR), while the European system is based upon a different treaty, the European Convention for Human Rights and Fundamental Freedoms (CHRFF). The two treaties share a common ancestor and inspiration, the Universal Declaration of Human Rights (UDHR).

The UDHR is surely the granddaddy of all human rights instruments. Issued by the UN at its founding, it laid out a series of human rights definitions that have been used in all of the “second generation” human rights instruments. However, the UDHR was not a treaty; it was simply a declaration (a statement), while the ICCPR and the CHRFF are treaties. Thus, the latter legally bind every nation that ratifies them (just like a contract binds the human beings who sign it), while the UDHR does not impose juridical requirements on anyone or any state.

Under the ICCPR, there is a committee, the Human Rights Committee (HRC), which, in the words of the ICCPR, “receives reports” from nations that have ratified the ICCPR, and which is empowered to make “comments.” While many socially conservative lawyers such as myself are careful to point out that such comments are not at all like a judicial decision in that they are not technically legally binding, the comments are influential.

Thankfully for religious freedom, the HRC’s comment on religious freedom, Comment 22 (attached, as are all the treaties, in a most useful appendix), is quite strong and uncompromising on the right to religious freedom. That is not the case within the European system. And that contrast is the driving force of Taylor’s book.

Taylor notes that while the HRC has strongly supported the right of religious freedom, including the right to teach exclusivistic doctrines and to evangelize others, the primary judicial organ charged with enforcing the CHRFF, the European Court on Human Rights (ECHR) has twisted and turned legal doctrine in order to permit states to violate religious freedoms guaranteed by law. For instance, the ECHR created a distinction between “coercive” and “non-coercive” proselytism, which, while perhaps sounding reasonable on the surface, really amounted to giving states a permission slip (by labeling something “coercive proselytism”) with which to restrict religious freedom.

Advantage of Diffusion

Though it may sound odd to non-lawyers, this book proves quite creative in suggesting how an “official” created by still yet another UN body, the UN Human Rights Commission (recently renamed and reorganized as the UN Human Rights Council), might contribute to securing religious freedom. That official, the Special Rapporteur on Religious Freedom, reports on religious issues around the world. He is independent of the HRC, however (as, for example, an official of Delaware is independent of the state government of Montana), so the HRC pays little attention to him. But since, according to Taylor at least, his reports are complete and thorough, the HRC should lean on him. This is quite a creative idea from a lawyer’s viewpoint.

The fact is that the whole UN “human rights system” is based on too many treaties and too many “human rights bodies” (commissions, committees, rapporteurs, etc). Taylor seeks to make them more integrated, and hence more sensible, in a worthy cause, that of advancing religious freedom. However, for those who realize that the human rights system, at least presently, is often dedicated to advancing “rights”—such as abortion and same-sex “marriage”—that simply do not exist (they are not written in the legal documents upon which the system is based), the diffuse UN system is perhaps, like federalism or the thicket of laws that for a while protected Thomas More from Henry VIII, something that works to our good.

Taylor has written a detailed, exhaustive treatment of two different human rights systems (UN and Europe) in light of their success or failure in securing religious freedom. It is a work that repays reading and reflection, at least by human rights lawyers.


William L. Saunders is Senior Vice President and Senior Counsel at Americans United for Life.

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