Abstract
Religion and international human rights law are like the two parallel lines of the railway track. One line traverses the terrain of reason; the other, of faith. So it is the ultimate conundrum: How does religion, a higher form of law, meet human rights, itself a higher form of law to which states must adhere? Which takes precedence, the divine or the secular? Perhaps, however, this is the wrong question.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
The Convention on the Rights of the Child (hereafter CRC), UN Doc. A / 44 / 49 ( 1989), entered into force in 1990.
Robert H. Mnookin, In the Interests of Children ( New York: W. H. Freeman and Company, 1985 ), 18.
See Geraldine Van Bueren, The International Law on the Rights of the Child ( Boston: Martinus Nijhoff, 1995 ), 32.
Despite its clarion call, article 3 of the CRC must be contrasted with principle 2 of the Declaration of the Rights of the Child and with article 4 of the African Charter on the Rights and Welfare of the Child, both of which stress that the best interests of the child should be the primary consideration. There is technically a regrettable weakening of the primacy of the best interests of the child in the CRC, which has never been adequately explained.
See Van Bueren, The International Law on the Rights of the Child 32.
See Prince v. Massachusetts, 321 US 158, 166–67 (1944) (Rutiedge J.).
P. v. S., 108 DLR (4th) 287, 317 (1994) ( Supreme Court of Canada) (L. Heureux-Dube J.).
See Geraldine Van Bueren, ed., International Documents on Children, 2d ed. ( Boston: Martinus Nijhoff, 1998 ).
Karl Josef Partsch, “Freedom of Conscience and Expression and Political Freedoms,” in The International Bill of Rights: The Covenant on Civil and Political Rights, ed. Louis Henkin, ( New York: Columbia University Press, 1981 ), 210.
Religious Association of Iceland, The Law Concerning the Official Recognition of Religious Associations Law 108, ch. 2, art. 8 (1999).
Act Relating to Religious Communities (1969) (Norway).
ICCPR, art. 18(4), which was originally based on a Greek proposal, was introduced to prevent religious education from being imposed on children against the will of their parents. During its drafting, it was made clear that this provision only places a duty on states parties to respect the wishes of parents; it does not place a duty on states parties to provide instruction in the religion of the parents’ choice.
Angelini v. Sweden, 10 EHRR 123 (EComHR, 1988 ).
Hartikainen et al. v. Finland, Comm. No. 40 / 1978, UN Doc. A / 36 / 40 (UN Human Rights Committee, 9 April 1981).
Kjeldsen, Busk Madsen and Pedersen v. Denmark, 1 EHRR711 (1979–80) (ECtHR23, 7 December 1976 ), 724.
Wisconsin v. Yoder, 406 US 205, 242 (1972) ( Douglas, J. dissenting).
Christian Education South Africa v. Minister of Education, (10) BCLR 1051 (CC) (South Africa, 18 August 2000 ).
Editor information
Rights and permissions
Copyright information
© 2004 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Van Bueren, G. (2004). The Right to Be the Same, The Right to Be Different: Children and Religion. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_24
Download citation
DOI: https://doi.org/10.1007/978-94-017-5616-7_24
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-04-13783-7
Online ISBN: 978-94-017-5616-7
eBook Packages: Springer Book Archive