The positive duty to protect against religious offence under the European Convention on Human Rights

Cowell, Frederick (2025) The positive duty to protect against religious offence under the European Convention on Human Rights. European Human Rights Law Review 2025 (1), pp. 75-89. ISSN 1361-1526. (In Press)

Abstract

The European Court of Human Rights (ECtHR) in interpreting the positive duties of a state party under art.9 ECHR has held in a number of cases that there is an obligation to protect an individual from “religious offence”. The first part of this paper explores the complex history of positive duties in this area and how they often revolve around what the ECtHR terms the protection of “religious peace”. As the second and third sections of this paper argue, this allows states to make defensive relativist arguments about the protection of religious peace, claiming its protection necessitates domestic laws which place disproportionate restrictions on other rights. The construction of this positive duty is particularly problematic, as the fourth section of this paper argues, in the context of rising autocratic legalism at the ECtHR which poses a systemic danger to the way both arts 9 and 10 rights are protected. The final section of this paper lays out different ways to strengthen the protection of art.10 rights in the formulation of any positive duty to protect art.9 rights.

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