IS ARTICLE 9 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS A CONTINUATION OF THE PROTESTANT THEOLOGY?

Abstract

In this thesis it is asked whether Article 9 of the European Convention on Human Rights (ECHR) is a continuation of the Protestant theology. It is demonstrated that despite the on-going process of secularisation, Protestant religious frameworks are still embedded within Western legal systems in general and the ECHR in particular. Taking this into account, a new explanation regarding the interpretation and application of Article 9 is put forward. It is explained how religious freedom came to be one of the central claims within Christian Protestant theology in association with linked ideas such as secularism. When freedom of religion is situated within European intellectual history, the “two kingdoms” of Luther, the private realm of the conscience and the public realm of the (sinful) body, are clearly reflected in the wording of Article 9 ECHR. Since the wording, as well as the judicial interpretations and applications of Article 9 ECHR, are biased in favour of the Christian Protestant view, this is automatically discriminatory against applicants who do not have a Protestant background, and even more biased against those of non-Abrahamic traditions. It is demonstrated that applicants from a non-Protestant faith or tradition attempting to utilise Article 9 EHCR have to distort their claims to fit within the confines of Article 9. This bias is made worse by the interpretation and application of Article 9 by the European Court of Human Rights (ECtHR). In the light of these conclusions, a fresh analysis is made of the ECtHR judgments on Article 9 illustrating the continuation of a post-Reformation struggle for iconoclasm, fought over through the secularised language of modern law. This analysis includes: applications brought by those from non-Abrahamic traditions, other Christians and other Abrahamic religions; judgments concerning Muslims, mainly the wearing of the hijab (headscarf);1 and the response of the ECtHR to curbs on proselytisation and idolatry in some countries of the Council of Europe.