Criteria and Constraints: the Human Rights Committee’s Test on Limiting the Freedom of Religion or Belief

Gehan Gunatilleke

doi:10.1163/18710328-bja10002

Abstract

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.

Highlights

The freedom of religion or belief (FoRB) remains one of our most cherished and contested rights
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
The Human Rights Committee—the treaty body that supervises the implementation of the International Covenant on Civil and Political Rights (ICCPR)—plays an important role in guiding states on questions of limitations

Summary

Introduction

The freedom of religion or belief (FoRB) remains one of our most cherished and contested rights. International human rights law authorises states to limit elements of this right— the freedom to manifest religion or belief. The final section analyses the application of these criteria and constraints in the Committee’s jurisprudence (section 4) This jurisprudence reveals that the Committee adopts two types of permissibility tests: a flexible test and rigorous test.[2] The author goes on to argue that through its jurisprudence, the Committee has offered a path to imposing a more robust justificatory burden on states when they limit FoRB

Conceptualising FoRB

Defining Limitation Grounds

The Jurisprudence of the Committee

Conclusion