CHAPTER 6 Manfred Nowak and Tanja Vospernik, Permissible Restrictions on Freedom of Religion or Belief
It is through the interplay of the principle of freedom of religion or belief and its restrictions that the actual scope of freedom of religion or belief is determined. this, the chapter on Permissible Restrictions on Freedom of Religion or Belief by Manfred Nowak and Tanja Vospernik is particularly critical for the volume. The authors undertake a rigorous analysis of the typical limitation clauses found in international instruments. Focusing on issues of "brainwashing" and religious persuasion, they raise questions about the borders of the forum internum , which is supposed to be totally exempt from limitations. They then work through the various legitimating grounds for imposing constraints on manifestations of religion listed in article 18 of the ICCPR: protection of "public safety, order, health, or morals or the fundamental rights and freedoms of others."
Particularly noteworthy is the treatment of "public order." This is often taken to be the most expansive justification for imposing limitations on freedom of religion, since many assume that what is intended is the broad notion of "ordre public" in French law used to describe a generalized sense of prevailing public policies. The authors point out that both the English and French versions of the ICCPR make it clear that in context, the phrase "public order" is intended to justify incursions on religious freedom only in the narrow sense of preventing public disturbances. 38 "Morals as a ground of limitation is considered to be the least clear and most controversial of the grounds, because of the risk that one religion-based moral principle may be invoked to override another religious belief.
Moving beyond the formal legitimating factors, Nowak and Vospernik forcus attention on nondiscrimination as an additional factor that is vital if a limitation is to be justified. As noted by the UN Human Rights Committee, discriminatory treatment invalidates a finding that a particular limitation is necessary, even if it falls within an otherwise legitimate category. Unfortunately, genuine neutrality is all too rare a commodity and the "differential" treatment meted out often amounts to outright discrimination.
A final practical critique of the handling of limitations clauses is that international and regional human right bodies are often too deferential in assessing state limitations. The European Court, for example, has sometiems afforded governments an unnecessarily broad margin of appreciation. More could no doubt have been said about the fact that even if one of the permissible grounds for legislation is present, it is still necessary to demonstrate that the limitation in question is strictly necessary and proportionate. But in general the authors do an excellent job ofstressing the narrowness of the grounds for permissible limitations, thereby facilitating protection of a broader sphere of freedom of religion or belief.
38 Nowak and Vospernik, chapter 6, 152.
