Jochen Abr. Frowein

Religion and Religious Symbols in European and International Law

It has long been recognized that freedom of opinion is an essential precondition for political democracy. Freedom of opinion first developed within the nature of freedom of religion. Against the powerful church and against its important ally the state, the claim to freedom of religion was first launched as an attack to protect the individual in one of the most personal spheres of human identity and belief. Georg Jellinek has argued that the natural-law theory which came to recognize freedom of religion is at the basis of the movement towards striving for civil and fundamental rights. This theory has not met with general approval, but one cannot overlook that freedom of religion was the basis of some of the most influential political movements to establish early democratic governments.1

Comment: State Responsibility and Peace

It is not easy to say something after the excellent paper presented by Helmut Aust if you have only a time of ten minutes allotted to you. However, I shall try to pick up a few problems connected with our topic. I share the view of Helmut Aust that we should concentrate on problems of State responsibility in connection with the use of force, or in other words the threat to or breach of the peace. However, we should not forget that a developed system of state responsibility clearly contributes to the rule of law in the international legal order and can thereby already be seen as an important element of world order and world peace. This has been rightly underlined by Helmut Aust. I would have no hesitation to welcome peace entering through the back-door.

The Interaction Between National Protection of Human Rights and the ECtHR

1. The jurisprudence of the Convention organs has had a historic influence on the legal systems of Western European Member States. These States have accepted judicial review of legislation through the Convention organs and many have introduced judicial review of legislation on the basis of constitutional or similar instruments. The case law of the Convention organs has contributed to strengthening judicial review of administrative decisions where it did not or not fully exist before. The guarantees of an open democratic process, in particular concerning freedom of expression have been strengthened or introduced into legal systems where they did not have the same rank before. The principle of proportionality for State interference with individual rights has been introduced in all Member States. In that respect Convention law and European Community law have been of equal importance. One may even come to the conclusion that Convention law has influenced the legal systems of Member States in a more dramatic way than has European Union law. However, this is not always fully noticed, not even by lawyers. 2. For some of the transition countries the same development has started after 1990. However, specific difficulties have arisen in some countries, in particular in Russia. There is no doubt that the transformation of legal systems in several of the transition countries has been highly influenced by the ECHR. This is evident if one looks at the constitutions of the former communist countries. However, it is also clear that in some of these countries special problems arise. To take Russia as an example the number of cases, the apparent impossibility to improve the internal situation as far as courts and prisons are concerned show a real difficulty. One does not need to address such issues as Chechnya to come to that conclusion.