The Road Taken: ICCPR and Discriminatory Restrictions on Religious Freedom

Abstract

This short note, written in the aftermath of the Harvard Human Rights Journal 2020 Symposium on the right against discriminatory impact based on religion, looks at one choice available for law-appliers under the ICCPR: Whether to address claims of discriminatory restrictions on religious freedom as cases of discrimination on religious grounds or impermissible intervention with freedom of religion. As will be shown below, the Human Rights Committee (HRC) – the treaty body responsible for monitoring compliance with the ICCPR – has taken a position going in one direction (towards reliance on freedom of religion); whereas other national and international law-appliers have gone in the other directions. At an abstract level, such a choice has implications that exceed the specific questions discussed in the Symposium. For example, it provides us with insights about the structure of human rights norms, and about the methods of interpretation used by different norm-appliers. It also offers interesting lessons about the differences between the protection afforded to human rights at the national and international levels.

Keywords: human rights. ICCPR. human rights committee, religious freedom, religious discrimination

JEL Classification: K33