Religious Diversity, Minorities and Human Rights: Gaps and Overlaps in Legal Protection

Round 1

Reviewer 1 Report

Comments and Suggestions for Authors

See attached version.

Comments for author File: Comments.pdf

Author Response

Responses to the referees’ comments: in green colour immediately after the comment.

It is hard to find any fault with this article. It is clearly written and the argument is laid out in a highly organized way. The argument for developing a right to diversity as such is a particular contribution of the article, and it well-framed in terms of the idea that religious pluralism is essential to democracy and identity. That thesis is challenging to state religions and to the parceling out of freedoms to particular minorities in some nations, with the protected minorities often still subordinated to a state religion. I was concerned in the first third to half of the paper that freedom from religion by secular and nonreligious people was insufficiently addressed. But the negative freedom dimensions do come out toward the middle of the paper. Still, I wonder, largely from an American perspective that sees our constitutional Establishment Clause being eclipsed by the Free Exercise Clause, whether still more should be said about freedom from religion for the religions “Nones,” as they have come to be called.

The concern is understood. Accordingly, two allusions to freedom from religion have been incorporated earlier in the text.

Related to the concern above, there is still also the question of whether even this broader framing of the religious minorities question in terms of diversity, pluralism, and democracy still protects primarily the rights of the religious. In the next to last paragraph, the author refers to the “privileged place of each society’s religious (or non-religious) tradition,” but outside of oppressive Marxist and Communist societies that allow no religion and particularly in the “postsecular world,” isn’t it religious traditions, rather than non-religion that have tended to be privileged? The author may wish to add a few sentence here and there to expand upon these points or to address these questions.

I agree with the comment. The intention was to allude to countries that try to impose an invasive secularism in a public space also understood in an excessive sense. I am thinking of countries such as France or Turkey. However, the allusion to "non-religious tradition" has been limited by specifying that there are only a few cases, among which in Europe the ones mentioned above stand out, in addition to the Marxists to which the evaluator rightly alludes. Space limitations make it difficult to elaborate further on this issue.

But the article is excellent as is. It provides good background on the problems of religious freedom and religious minorities and comprehensively cites the relevant laws and scholarship. It is an article that I would want to assign in any teaching on religion and human rights.

Thank you

Reviewer 2 Report

Comments and Suggestions for Authors

The paper is framed too generally to make the sort of contribution for which one would hope.  If the authors are onto a general idea, they need to start much further ahead with the background and then explain what is really novel in that.  Otherwise, they need to hone in on something more specifically and go into depth on it.  Right now, the paper's contribution is significantly undercut by the excessive generality.

Comments on the Quality of English Language

At a technical level, very few issues.  At a stylistic level, some terms are a bit awkward and it takes away from the paper communicating as well as it could (but that is a problem that could come even from anglophones).

Author Response

Responses to the referees’ comments: in green colour immediately after the comment.
The paper is framed too generally to make the sort of contribution for which one would hope.  If the authors are onto a general idea, they need to start much further ahead with the background and then explain what is really novel in that.  Otherwise, they need to hone in on something more specifically and go into depth on it.  Right now, the paper's contribution is significantly undercut by the excessive generality.

The evaluation is formulated in too general a manner to be possible to respond to it. While the other two reviews assess the content and added value of the article very positively, making interesting and specific proposals for correction or improvement, in this case the evaluation is limited to a general negative assessment of the novel nature of the contribution, but it does not indicate any specific aspect to which to respond or argue, nor does it indicate which other authors or contributions have directly compared the legal ways of protecting religious diversity, the overlapping that occurs between them, or the thesis that in its current interpretation the right of members of religious minorities lacks separate content with respect to the protection contained in freedom of religion. Therefore, no change has been introduced in relation to this review.

Thank you

Reviewer 3 Report

Comments and Suggestions for Authors

This is a well structured and well presented piece of writing that potentially makes an important contribution to the literature. I recommend its publication. The following are comments for the author to consider, in order to strengthen the piece. 

(a) Section 3, which is generally very good falls into the usual Eurocentric trap of focusing on Christianity in the outlining of the history of minorities, making a passing reference to the millet system and then deeming the historical treatment to be adequate. While I appreciate that not all authors have a grasp on complex Confucian ideas, Shintoism, Hinduism, Buddhism, animism and the diverse indigenous perspectives  and how they may relate to the concept of religious minorities, presenting a history without any acknowledgement these may even exist is problematic and needs to be eradicated from scientific literature. I accept that the vast majority of literature that is published feels no need to problematize this in the way articulated here. 

(b) Section 4, explaining the human rights law is generally good and accurate. However DERD is an awkward acronym I would recommend avoiding since it is not immediately recognizable to most working in the field, and CERD (racial discrimination) refers to something else altogether, which was also predated by a (significantly more famous) Declaration. DPRM is less problematic. UNDRIP is not referenced in this section but later cited in relation to Ghanea's points. This reflects a general take in the piece that excludes indigenous spiritual systems from the discussions which may be unintentional so ought to be safeguarded against. Also for sake of completeness it may be pertinent to reference the OSCE High Commissioner on National Minorities and the Ljubljana Guidelines on Integration which seem relevant. 

(c) I found section 5 less convincing than the rest of the piece. It conflates the needs of religious minorities with other minorities without problematizing these. It also relies on scholars who only operate on the freedom of religion but then extrapolates that in a way that could be more mindful (ethnic, linguistic, racialized, indigenous) of how they may overlap.

As a consequence, 

(d) I am not fully convinced about the final hypothesis proposed that:        

It has also been noted that there are no solid arguments today to create separate and different content for the protection for minorities, nor to differentiate some religious minorities from others.

The first element (minorities) is not equal to the second (religious minorities), which is necessarily a smaller sub-set of the whole...  

Also I am not completely convinced that the following has been proven. If the author wishes to emphasize it (I do not agree with the statement, but that does not matter as much), more justification ought to be encouraged, to back the conclusion that:    

There is therefore no need for an explicit separate right for religious minorities.

By the way, the other element of the conclusion reached is much better extrapolated in the piece namely that... ...there is now a need to extend the protection granted by generic fundamental rights, such as freedom of religion itself. It just does not show up as an either/or, so the text 'on the contrary' is not supported in the piece. 

All in all a very good piece by a knowledgeable scholar that could provoke discussion.  

 

Author Response

Responses to the referees’ comments: in green colour immediately after the comment.

This is a well structured and well presented piece of writing that potentially makes an important contribution to the literature. I recommend its publication. The following are comments for the author to consider, in order to strengthen the piece. 

(a) Section 3, which is generally very good falls into the usual Eurocentric trap of focusing on Christianity in the outlining of the history of minorities, making a passing reference to the millet system and then deeming the historical treatment to be adequate. While I appreciate that not all authors have a grasp on complex Confucian ideas, Shintoism, Hinduism, Buddhism, animism and the diverse indigenous perspectives  and how they may relate to the concept of religious minorities, presenting a history without any acknowledgement these may even exist is problematic and needs to be eradicated from scientific literature. I accept that the vast majority of literature that is published feels no need to problematize this in the way articulated here. 

The reviewer is absolutely right in his comment. The perspective of the article is entirely Eurocentric and the author cannot provide a broader approach, but he can expressly point out this limitation. However, it should be recalled that this heading is alluding to the history of the protection of religious minorities in modern international law as it is considered by standard textbooks. Although it is clear that the construction and evolution of this is Eurocentric, it is difficult to bring up legal examples from other regions or traditions of the world that serve as a precedent for the current standards of international protection of minorities. We agree that reference should in any case be made to the existing diversity and the need to accommodate existing concepts with all religious expressions.

(b) Section 4, explaining the human rights law is generally good and accurate. However DERD is an awkward acronym I would recommend avoiding since it is not immediately recognizable to most working in the field, and CERD (racial discrimination) refers to something else altogether, which was also predated by a (significantly more famous) Declaration.

I agree with the comment and proceed to delete the acronym as it does not reappear in the subsequent text.

DPRM is less problematic. UNDRIP is not referenced in this section but later cited in relation to Ghanea's points. This reflects a general take in the piece that excludes indigenous spiritual systems from the discussions which may be unintentional so ought to be safeguarded against.

In agreement with the comment. A new reference has been included in the cited section and the cited article number has been corrected.

Also for sake of completeness it may be pertinent to reference the OSCE High Commissioner on National Minorities and the Ljubljana Guidelines on Integration which seem relevant. 

In agreement with the comment. Reference has been incorporated at the end of the heading.

(c) I found section 5 less convincing than the rest of the piece. It conflates the needs of religious minorities with other minorities without problematizing these. It also relies on scholars who only operate on the freedom of religion but then extrapolates that in a way that could be more mindful (ethnic, linguistic, racialized, indigenous) of how they may overlap.

As a consequence, 

(d) I am not fully convinced about the final hypothesis proposed that:        

It has also been noted that there are no solid arguments today to create separate and different content for the protection for minorities, nor to differentiate some religious minorities from others.

The first element (minorities) is not equal to the second (religious minorities), which is necessarily a smaller sub-set of the whole...

In order to clarify the thesis defended in the article, it should be pointed out that the legal status of minorities other than religious minorities is not alluded to, nor would the same conclusion necessarily be reached for them. Indeed, in other works I have dealt with the case of linguistic minorities or other minorities based on cultural elements. The substantive difference in the case of religion as a defining factor of minorities lies precisely in the existence of a civil and generic right specifically linked to this cultural element, which does not exist in the case of languages or other identity markers. The argument is that the existence of freedom of religion and its updated interpretation in a democratic society leads to the dissolution of the alleged added value of protection granted by the right of persons belonging to religious minorities. This fact is reinforced by the way in which various international monitoring bodies, both in Europe and in the UN, are applying freedom of religion and (not applying) the protection granted by Article 27 ICCPR. But this conclusion only applies to the religious sphere and not to other minorities.

Although I defend the need to extend the protection granted through generic rights to all culturally based minorities, in the case of religious (lay/secular) minorities this need is already overtaken by the practice of human rights protection bodies and through an advanced re-interpretation of rights. Such a re-interpretation can certainly be extended to other groups, but it will be more complicated to the extent that the cultural element in question (e.g. language) does not constitute the substantive object of a freedom generally recognised to all persons and groups, regardless of their traditional character in a given society.

Also I am not completely convinced that the following has been proven. If the author wishes to emphasize it (I do not agree with the statement, but that does not matter as much), more justification ought to be encouraged, to back the conclusion that:    

There is therefore no need for an explicit separate right for religious minorities.

Insisting that this conclusion and thesis are limited in the article to the case of religious minorities, the argument is that it is precisely in the field of religions and beliefs that an expansion of the concept of minority is taking place, along with an updating of the interpretation of a generic human right and non-discrimination on a more democratic and inclusive basis. This expansion of the concept of religious minority leads in practice to its final dissolution when we find ourselves in legal systems that apply a multicultural and inclusive reading of freedom of religion and the right to equality. Thus, the historical provisions of protection in favour of certain specific minorities (excluding specific minor details that do not constitute the substance of the right protection) can and should end up being equalised for all religious groups in today's democratic society. This does not imply, as is also pointed out in the text, that all religious minorities should be treated in the same way, but rather the need to guarantee non-discrimination between them and the intervention of the public section insofar as the basic content of their freedom of religion, both individual and collective, may be threatened.

By the way, the other element of the conclusion reached is much better extrapolated in the piece namely that... ...there is now a need to extend the protection granted by generic fundamental rights, such as freedom of religion itself. It just does not show up as an either/or, so the text 'on the contrary' is not supported in the piece. 

All in all a very good piece by a knowledgeable scholar that could provoke discussion.  

Thank you 

Round 2

Reviewer 2 Report

Comments and Suggestions for Authors

I did not give specific comments for improvement because my recommendation was a simple rejection.  I do not view the paper as contributing meaningfully in a sufficiently specific way to be worth publishing.  Since the piece is basically the same one I saw before, I remain of this opinion.

Comments on the Quality of English Language

No comments here - I had no particular concerns here.