Saturday, March 15, 2014
Presidential Board Room (Omni Shoreham)
The European Court of Human Rights has a decisive role in determining whether the newly unified Europe will gain global recognition as a community of states unified by a commitment to fundamental democratic principles. Increasingly the Court is rendering decisions in cases involving alleged violations of Article 9 of the European Convention on Human Rights (“the Convention”). Article 9 provides for religious liberty; and each case has involved a minority religious group’s claim of religious discrimination in one of the 47 COE member states. In rendering its decisions, the Court has given deference to a member state’s interpretation of what is required within its borders to comply with Article 9. Such deference has resulted in a lower quality of religious liberty being made available to Muslims and Jehovah’s Witnesses domiciled in France, Switzerland or Greece than the religious liberty enjoyed by these “new” groups domiciled in any of the Scandinavian COE member states. This paper argues that the “margin of appreciation” the Court traditionally gives to a domestic court’s lenient interpretation of its own human rights laws (as being compliant with Article 9) is counterproductive to the overall project of cultivating a community of uniformly democratic COE member states. By undertaking an exegesis of the Equal Protection Clause of the U.S. Constitution – a clause added by amendment – I illustrate the need to amend the Convention. This, I argue, will end the extant disparity in treatment of religious minorities in the newly integrated Europe.
