چکیده:
The right to freedom of religion or belief has been well-established in
human rights instruments since the inception of the modern era of
international law. However, while inner freedom of belief has been
uncontested, the ability to manifest those beliefs publicly has been made
subject to limitations for certain purposes which include public safety and
order, health, morality and the fundamental rights and freedoms of others.
The degree to which such restrictions on religious practice may be
permissible under the rubric of international human rights law has been and
continues to be under debate. International refugee law has played an
important role in safeguarding religious freedom, as persecution for reasons
of religion is one of the five grounds enumerated in the >A;> Convention
relating to the Status of Refugees. To what degree are restrictions on
religious practice permissible and at what point do such restrictions rise to
the level of persecution meriting international protection? An examination of
the refugee jurisprudence of States adjudicating religion-based claims will
help illustrate the nebulous boundaries of the definition of persecution in the
context of religious practice and identify some of the factors and trends
which influence refugee decision-making.
Part I will provide an overview of international refugee law as it relates to
religion and describe the Westphalian context under which it was
constructed. The modern era of international law was strongly influenced by
wars of religion and the principle of cuius regio, eius religio – whose the rule,
his the religion – which emphasized respect for national sovereignty and
non-interference in religious affairs of the state as essential to international
stability. International refugee law, developed largely in response to World
War II and the Holocaust, attempts to balance respect for national
sovereignty with humanitarian protection concerns by only applying to
persons outside their country of origin. Part II will discuss refugee
jurisprudence interpreting the point at which religious restrictions
constitute a well-founded fear of persecution and highlight issues which
form the boundaries of persecution. How does refugee law distinguish
discrimination, which does not merit international protection, from
persecution? Should refugees be able to avoid the prisoners’ dilemma of
either renouncing their identity or beliefs or face persecution and should the
imposition of a moral view constitute serious or grave harm? What
deference should be given to religious States who advocate a certain religion
as an affair of the State, whether through Shari’a or other religious laws? Can
persecution be caused by non-State actors or religious extremists and is non-
State sectarian violence a matter for refugee law? Part III will reflect on the
inextricable links between religion and politics, economics and culture in
light of the fact that religion demands practice by adherents and dictates
standards of social conduct. It will discuss the relationship between States
and religion and consider whether and how international refugee law
promotes religious toleration and pluralism.
خلاصه ماشینی:
: Refugees; Religious Persecution; Restrictions; Pluralism INTRODUCTION The right to freedom of religion or belief has long been acknowledged as one of the most basic and core of human rights since the inception of the modern era of international law.
An examination of the historical context in which refugee law was formed, current international instruments and the jurisprudence of States adjudicating religion-based claims will help illustrate the nebulous boundaries of the definition of persecution in the context of religious practice and identify some of the issues which are raised by refugee decision-making.
Part I will examine the historical context in which international refugee law was formed and, in particular, how wars of religion and early concepts of asylum from religious persecution influenced the development of the refugee protection regime.
In the context of the interpretation of permissible restrictions on religious practice and particularly in light of the historical context which conceived of religious tolerance in terms of non-interference, despite the fact that refugee law clearly makes no intervention unless persons are beyond the borders of their country of origin, modern refugee law still must continually strike a fine balance between neutral humanitarian protection and political human rights criticism and/or intervention.
3. See: UNHCR, Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06 (28 April 2004), at para.