This article discusses how Canadian experience in the legal treatment of cultural diversity, including the sometimes distinct Québécois experience, sheds light on the interpretation and application of human rights in plural societies. Equality is examined here through the concept of ‘reasonable accommodation’, a concept which has begun to attract attention in Europe. The considerable extent of reasonable accommodation in Canada, the connections between reasonable accommodation and the public policies known as Canadian multiculturalism and Québec interculturalism, and other issues and controversies, are discussed. The paper also addresses the meaning of freedom in a plural society, describing how Canadian courts are still searching for an acceptable balance between individual freedom and the collective dimension of culture. Elaborating on this tension, the paper discusses ‘cultural rights’ as a useful concept for giving meaning to human rights not just in Canada, but in other plural societies facing similar issues.
Keywords: Human Rights; Pluralism; Equality; Reasonable Accommodation; Freedom; Cultural Rights; Canada; Quebec.
Human rights are often thought to provide us with neutral, objective and unpolitical guidance in multi-faith societies. Even though we have great trust in human rights, this should not prevent us from looking at their practical operation critically. This article explores some of dilemmas regarding the application of the freedom of religion or belief in Europe. The paper argues that in practice the freedom of religion as a human right does not set clear standards but derives its meaning through balancing different kinds of political, strategic, Christian and Western interests. In this article, this is made visible by claims of Muslim applicants asserting their rights in the European Court of Human Rights. It is argued that the human rights community should be more sensitive and reflective to the many pragmatic uses of human rights, in other words, the politics of human rights.
Keywords: Freedom of Religion or Belief; European Court of Human Rights; Minorities; Islam in Europe; Human Rights Pragmatism; Politics of Human Rights; European Universalism.
In the present Article the application of the general principles governing waiver of rights (as previously outlined) to substantive Convention rights, such as the right to life and the freedom of expression, is investigated. The study confirms that self-determination plays a role, while at the same time core elements of substantive rights cannot be waived since they reach beyond the individual right-holder’s sphere. This applies to both derogable and non-derogable rights. Whether validity of the right-holder’s decision in a narrower sense – his free, informed and continued determination to waive – or the conformity of his waiver with important public interests is at the centre of attention varies with the circumstances and the right involved. Such sensitive matters as are covered by the most ‘sacred’, non-derogable, rights: life, integrity and personal freedom, at the centre of the right-holder’s self-determination. As a consequence the right-holder’s consent to or call for a particular treatment, may remove the issue completely from the ambit of the protection. When it comes to derogable substantive rights (typically those in ECHR articles 8 – 11) the consideration connected to the core-periphery-dimension finds a reflection in the parallel to the ordinary conditions for interference, most often set out in the second paragraph of the relevant article (law, purpose and necessity). However, where waiver of a derogable right is substantiated, the state has more leeway. Not insignificantly, a right-holder can in a number of cases even claim the opposite of what a particular article expressly grants him. Such ‘negative rights’ are evident inter alia in relation to the substantive ‘positive rights’ expressed in articles 10 and 11. Even the opposite of a right to marry (art 12), a right to divorce, may in certain cases develop, eventually on the basis of a ‘preferred right’.
Keywords: Waiver of Rights, Self-Determination, Right to Life, Torture, Inhuman Treatment, Forced Labour, Deprivation of Liberty, Retroactive Criminal Law, Private and Family Life, Marriage and Divorce, Thought and Religion, Freedom of Expression, Assembly and Organisation.