Right to manifest religious belief through clothing and symbols in the practice of the European Court of Human Rights and the United Nations Human Rights Committee: Application of the same right within different interpretative contexts

Article 18 of the Universal Declaration on Human Rights (UDHR) is the common origin for Article 18 of the International Covenant on Civil and Political Rights (ICCPR) and Article 9 of the European Convention on Human Rights (ECHR). Both provisions, formulated with parallel wordings, protect the right to freedom of religion or belief. However, the monitoring bodies of the two conventions, respectively the United Nations Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR), have delivered contradictory decisions while interpreting the right. This contradiction is particularly visible with regards to the applications concerning wearing religious signs, symbols or clothing. Despite dealing with similar, or in some cases even identical complaints, the HRC is likely to find a violation on restrictions of religious signs justified by reference to public security, public order, or protection of the rights of the others whereas the ECtHR tends to decline these complaints relying on the margin of appreciation of the member states of the Council of Europe. This thesis provides a comparative analysis as to the interpretation of the right to manifest religion before the HRC and the ECtHR. The thesis has two specific aims. First, it identifies the main diverging points between the HRC and the ECtHR in their interpretation of the right to manifest religion. There, it surveys the relevant jurisprudence of the two bodies through a comparative lens, and shows three main points of divergence: interpretation of (i) safety and order (ii) barrier to equality or social interaction and (iii) duty of neutrality. Second, the thesis investigates the factors that could explain this divergence. There, the thesis identifies three factors: (i) different mandates, (ii) different methods and (iii) different interpretative contexts. The thesis argues that the difference of the interpretative contexts is the main factor creating this divergence. In conclusion, the study briefly examines the current and potential implications of this divergence on International Human Rights Law, on litigation strategies of the future applicants, and on implementation responsibilities of the states.