CHAPTER 4 Johan van der Vyver, The Relationship of Freedom of Religion or Belief Norms to Other Human Rights
John van der Vyver's chapter untertakes the complex task of analyzing The Relation of Freedom of Religion or Belief Norms to Other Human Rights. This includes examining both areas where religious freedom and other human rights are mutually supportive and overlap, and areas where they can come into conflict. The overlaps pose few problems: freedom of expression and association, for example, provide "double protection" in areas such as religious persuasion and the right to acquire legal entity status. The areas of conflict are more controversial. Van der Vyver explores a rich range of examples from around the world illustrating the different types of conflicts with other rights. The chapter repays reading simply for the plenitude of situations it addresses. But the chapter goes further in putting forward a number of principles that are pertinent to the resolution of such conflicts.
At the outset van der Vyver addresses the potential conflicts that arise from internal disputes within a religious community. Among other things, he notes the significance of institutional group rights to freedom of religion vesting in religious institutions themselves, as opposed to collective group rights, which vest in the individual members of a group. 33 This has significant implications for the rights of religious institutions to religious autonomy and to legal entity status, as described in more detail in chapters 14 and 15 (by Minnerath and Durham, respectively). In this domain, he invokes principles drawn from the general analytic structure of "sphere sovereignty," which recognizes the exclusive competence of religious institutions to determine their own organization structure, dogma, procedures, activities, and internal disciplinary measures. To this he adds the state of responsibility to respect the self-determination of religious communities. Whereas the principle of sphere sovereignty is described as an "institutuional group right," which vests in a social institution, afforded to individual persons belonging to that category and can be exercised separately and jointly with others of that group.
The distinction between collective and institutional rights is important and enlightening. However, couching that discussion in terms highly reminiscent of the right of peoples to self-determination might cause misunderstanding. The right of peoples to self-determination, addressed in the parallel articles 1 of the ICCPR and the ICESCR, addresses rather different matters: its holders are peoples and the goods protected by people's rights to self-determination are external independence and internal democratic self-rule. Of-course, van der Vyver does not intend to elevate religious communities to political peoples, nor to accord them the right to political independence (i.e., secession), nor to impose self-rule on religious organizations that have other modes of internal ordering. The basic principle is surely sound: it may be helpful to use the language of religious autonomy to avoid confusion, but van der Vyver may believe this sounds too much like an institutional right, when it is the partially overlapping collective dimension of an associational right he wants to bring out.
Another area van der Vyver focuses on is the interaction of equality of norms with religious freedom. Often, of course, equality norms, reinforce religious freedom protections. Indeed, as noted above, nondiscrimination norms are part of the normative core of freedom of religion or belief. Van der Vyver takes a strong position in this regard against privileged relationships of particular religious communities with the state, contending that such privileging discriminates against the religions and beliefs that are thereby disadvantaged, condescends towards those it "tolerates," and interferes in the internal affairs of the supposedly privileged religion. 34 This position will clearly be controversial in the many countries that continue to have official state churches or other strong forms of cooperation with particular religious denominations. Benefited groups are likely to be critical o fthe position; smaller and less popular groups are likely to concur. The significant point is that the strength of the equality norm in contemporary society imposes a burden of justification where privileging occurs.
Yet there are other situations in which religious freedom protections may collide with equality norms. Examples cited by van der Vyver include discrimination by some religions against women and against gays and lesbians. 35 Van der Vyver appears to assume that sphere sovereignty will protect doctrinally based internal practices, 36 , but absent that, he appears to endorse placing equality ahead of liberty:"countries founded on libertarian principles which permit freedom of religion or belief to trump individual on rights founded on human dignity and equlity are at odds with the international standards of human rights protection." 37 The tension between liberty and equality is well known, and can have particularly significant ramifications for freedom or religion. Not everyone will accept van der Vyver's position on these issues, but his chapter is a significant starting point for discussion.
A final section of van der Vyver's chapter deals with permissible limitations on freedom of religion or belief. Here his analysis is conceptual, focusing on (1) "inherent limitations," (2) limitations determined by the rights and freedoms of others, and (3) limitations "in the general interest." What van der Vyver provides in this section is analysis of the type that is more typical at the level of the constitutional law of a state, in contrast to Nowak and Vospernik's discussion in chapter 6 of limitation clause issues at the level of international norms.
33 Van der Vyver, chapter 4,91. 34 Ibid., 106-107 35 Ibid., 114. 36 Ibid., 115. 37 Ibid., 120.
