The Right to Religious Freedom under International Human Rights Law and Islamic Jurisprudence: A Re-Interpretation

Abstract

This thesis examines the Right to Freedom of Religion under the International Human Rights legal regime and Islamic jurisprudence. It does so in order to highlight the shortcomings of the way this right is interpreted under both systems, leaving religious minorities disadvantaged and further marginalised.

It does this by examining the jurisprudence of the major international human rights judicial systems, the European Court of Human Rights and the Human Rights Committee, to prove that the secular system of rights under International Law is in fact, not so secular. It s conception of religion is highly influenced and informed by liberal Protestant Christian understandings of faith and its appropriate manifestation, with overt expressions of faith are seen as unnecessary in some cases, and secondary to national narratives, in others. The thesis then proposes that this is an issue of interpretation, rather than a substantive weakness in the laws in question. The thesis provides a solution to this problem by suggesting a return to the intention of these international treaties - by looking at the travaux préparatoires it can be seen that the intention of the drafters of both the ICCPR and the ECHR was always for plurality, equality, and the protection of people belonging to religious minorities.

The thesis then illustrates that Islamic Law is not, as it stands, particularly well-equipped to harmonise with International Human Rights Law, in general or on freedom of religion, in particular then goes onto suggest a way of reinterpreting the right of religious minorities under Islamic Law by doing a contextual re-reading of the Qur an. A possible approach to this issue, in the form of an analysis with reference to the principles and legal tenets of Islamic jurisprudence, is then laid out.

The thesis concludes that neither is the international human rights system on the Right to Freedom of Religion perfect, nor is the one found under Islamic fiqh is identifying a way of reform which would not only result in two more robust, healthy legal systems that adhere more honestly to the tenets of their foundational texts, but also results in systems that are inherently better-equipped to cooperate.