The Kokkinakis case is probably the most widely cited judgement of the European Court of Human Rights concerning the freedom of religion or belief. Yet the constant repetition of its key passages tends to obscure the very real, and controversial, developments which have taken place in the Court’s jurisprudence. This article outlines this practice and explores its implications. It concludes that “quoting Kokkinakis ” runs the risk of have a negative impact upon our understanding of Article 9 of the echr today and its famous ‘mantra’ should be replaced by a more up to date and accurate statement of the conceptual underpinnings of that article.
This paper analyzes 25 years of ECHR jurisprudence on education & religion.
In the first study of its kind Mary McAleese subjects to comprehensive scrutiny the Roman Catholic Church’s 1983 Code of Canon law as it applies to children. The Catholic Church is the world’s largest non-governmental organisation involved in the provision of education and care services to children. It has over three hundred million child members world-wide the vast majority of whom became Church members when they were baptised as infants. Canon law sets out their rights and obligations as members. Children also have rights which are set out in the 1989 United Nations Convention on the Rights of the Child to which the Holy See is State Party. The impact of the Convention on Canon Law is examined in detail and the analysis charts a distinct and worrying sea-change in the attitude of the Holy See to its obligations under the Convention since the clerical sex abuse scandals became a subject of discussion at the Committee on the Rights of the Child, which monitors implementation of the Convention.
There is an inherent tension between the often aspirational international commitments which states assume and the practical reality of applying them in a particular factual context. This is exacerbated by the more general tension which pervades international law, that of balancing state sovereignty with legal duties. This tension is well known to political theory and, ever since its first case focusing on Article 9, Kokkinakis v. Greece, 1 is well attested in the jurisprudence of the European Court of Human Rights concerning the freedom of religion or belief. Rather than seeing this tension as a hermeneutic tool through which to understand and better secure the implementation of that freedom, it has tended to be seen as a problem which needs to be addressed, if not eliminated. In order to do so, two contrasting techniques can be found in the jurisprudence relating to Article 9, which we shall call the “first” and “second” generation approaches. The first generation approach focused on the universality of the right, seeking to find a way of resolving the inherent tension by reference to broadly construed and generally applicable overarching principles, couched in the language of neutrality. The second generation approach is focused on subsidiarity, in the guise of the margin of appreciation, and has attained prominence through the 2013 Brighton Declaration and the resulting 15th Protocol to the ECHR and, at the time of writing, in the 2018 Copenhagen Declaration.2 However, little attempt has been made to
