Fragmentation in the European and Inter-American Human Rights Courts Regarding the Scope of Religious Autonomy: An Analysis of the Use of Sources and Methodologies

ABSTRACT

Fragmentation in International Human Rights Law (IHRL) may affect the universality of human rights norms and their legitimacy. This article analyses a recent case of contradiction between the European and the Inter-American Court of Human Rights (IACHR) regarding employment contracts of religious education teachers and the scope of religious autonomy. These courts reached contradictory conclusions on key substantive issues because they used different ways of framing the issue at stake, and different legal sources and interpretative methodologies. The analysis reveals that while the European Court of Human Rights (ECHR) relied on the use of comparative law, a test of proportionality, and the margin of appreciation, the IACHR relied mainly on American domestic law and the opinions of two expert witnesses. In this case, the IACHR could learn from the approach of the ECHR to develop a more rigorous legal methodology in order to keep the coherence of the international legal system.

1. INTRODUCTION

The fragmentation of International Law has been analysed in recent decades.¹ This phenomenon has been studied between different specialized regimes, such as trade law and environmental law.² However, there is a growing scholarly interest in analysing fragmentation within the same legal regime, such as in the field of International Human Rights Law (IHRL).³

Although all human rights treaties and mechanisms derive from the unity of the Universal Declaration of Human Rights of 1948, the development of regional covenants and a diversity of institutional mechanisms has increased the number of organs that can interpret these norms in contradictory ways.⁴

Fragmentation can be an opportunity to enhance pluralism and diversity,⁵ but it can also lead to divergence and conflict. The issue is particularly relevant to IHRL because of the legal nature of human rights norms, which are universal and often referred to as international human rights standards. Particularly, judicial fragmentation may undermine the coherence and unity of the system and challenge the legitimacy of international mechanisms of protection.⁶

Currently, some human rights mechanisms have issued divergent and even contradictory decisions on similar issues, creating uncertainty as to when a human rights violation has occurred and when it has not.⁷ However, it is rare to find cases of judicial fragmentation per se, which is a phenomenon that arises when two courts render contrasting judgments on the same matter in two cases based on comparable facts.⁸

Thus, this article will analyse two recent cases of judicial fragmentation that resulted in conflicting human rights standards. On the one hand, the case of Fernández Martínez v Spain (2018) in the European Court of Human Rights (ECHR), and on the other, the case of Pavez Pavez v Chile (2022) in the Inter-American Court of Human Rights (IACHR). Both cases deal with the employment contracts of teachers of religion concerning the autonomy of religious communities. These regional courts conducted their analysis using different legal sources, parameters of analysis, and doctrines, which led to contradictory positions regarding the substantive content of religious freedom, the principle of non-discrimination, and even rules related to the attribution of acts to the state.

This comparison analysis aims to promote the judicial integration and coherence of IHRL, which is not equated with uniformity but means that some degree of coherence and consistency (within the flexible international legal system) is necessary for the functioning, predictability, and the very existence of the system.⁹ Thus, this integration requires that similar legal issues be treated consistently and disparities must be explained.¹⁰

Considering these premises, this analysis reveals that not every judicial decision has the same clarity, articulate reasoning, and legal rigour. Thus, an exercise of compare and contrast between the different sources and methodologies used by each regional court helps to scrutinize and improve the legal reasoning used by human rights mechanisms. In this case, the IACHR’s decision lacked a broader use of legal sources and did not apply all the steps of the proportionality test, resulting in a judgment that was barely legally justified. In contrast, the ECHR’s use of comparative law and a well-developed test of proportionality resulted in a more robust judgment in its legal reasoning. Thus, in the analysis of these two cases, the IACHR could learn from a more robust use of sources and methodological approach of the ECHR, which was more consistent with the general rules of International Law and the status of the issue in comparative law.

2. THE SCOPE OF RELIGIOUS AUTONOMY: A COMPARISON THROUGH DIFFERENT METHODOLOGIES

A. The autonomy of religious communities at the ECHR: Fernández Martínez v Spain

The facts of the case relate to Mr Fernández Martínez, an ordained Catholic priest (the applicant), who applied to the Vatican for a dispensation from celibacy. In the meantime, Mr Fernández got married, had five children, and joined the Movement for Optional Celibacy of Priests.

At the relevant time, the applicant was employed as a teacher of Catholic religion in a public secondary school in the region of Murcia. Pursuant to an agreement between Spain and the Holy See, ‘religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary of the diocese’.¹¹ According to a Ministerial Order of 1982:

The appointment is to be made annually and renewed automatically, unless an opinion to the contrary is given by the Ordinary before the start of the school year, or unless the public authority, for serious academic or disciplinary reasons, considers it necessary to annul the appointment, in which case the Church authority shall be heard.¹²

This means that the renewal of Mr Fernández’s contract was subject to the Bishop’s approval of his suitability to teach the Catholic religion.

Mr Fernández finally received a response to his dispensation, which was granted by the Pope several years later, at the cost of losing his clerical state. The response also stated that the applicant was prohibited from teaching the Catholic religion in educational institutions. This decision was confirmed in local proceedings before the competent authorities, who ruled that the definition of moral or religious criteria to decide on the non-renewal of Mr Fernández’s contract was the exclusive prerogative of the religious authorities.¹³ As a result of these adverse decisions, Mr Fernández filed a complaint with the ECHR alleging a violation of his right to privacy.

The Grand Chamber delivered the final judgment in this case. The assessment began with the question of whether professional activities fall within the scope of protection of the right to privacy, which the ECHR answered in the affirmative.¹⁴ The ECHR then followed the steps of its typical test of proportionality for determining whether there has been a human rights violation: determining whether there has been an interference with the right, whether the interference was in accordance with the law, whether the measure pursued a legitimate aim, and whether the measure was necessary in a democratic society.¹⁵

With regard to the interference, the approach of the ECHR was not to determine whether the State had complied with its positive obligations to ensure the applicant’s right to privacy. Rather, the analysis began with the question of attribution and characterizing the applicant’s specific situation. Here, the ECHR analysed Mr Fernández’s situation according to the provisions of Spanish domestic law. The ECHR noted that although the applicant’s employment contract was with a public school and remunerated by the state, he did not qualify as a civil servant under Spanish law.¹⁶

Also, regarding the attribution of the alleged violation to Spain, the ECHR held that although the revocation was issued by a religious organization (not a public authority), it was sufficient that the state had intervened at a later stage ‘for the decision to be regarded as an act of public authority’.¹⁷ Thus, the act was attributable to the state because the object of analysis was the state’s enforcement of the Church’s decision and not the decision of the Church itself, which was not attributable to Spain under the rules of state responsibility.¹⁸ The ECHR further added that

The Court is thus of the opinion that the crux of the issue lies in the action of the State authority which, as the applicant’s employer, and being directly involved in the decision-making process, enforced the Bishop’s non-renewal decision.¹⁹

With regard to the legitimate aim, the ECHR argued that the non-renewal of the contract pursued the legitimate aim of protecting the rights and freedoms of others, as provided by Article 8.2 of the European Convention on Human Rights.²⁰ In this case, it referred to ‘namely those of the Catholic Church, and in particular its autonomy in respect of the choice of persons accredited to teach religious doctrine’.²¹

With regard to the necessity of the measure, the ECHR pointed out that the balance to be struck involved the applicant’s right to privacy and the right of religious organizations to autonomy.²² Thus, the admissibility of the interference depended on its proportionality to the aim pursued, which must be based on relevant and sufficient reasons.²³ According to the jurisprudence of the ECHR, when making this balancing, the State enjoys a margin of appreciation in the application of the proportionality test.²⁴ This margin is wider when there is no European consensus on the issue.²⁵ In this case, considering that among European states there is a variety of valid constitutional models for organizing the relationship between religion and the state, the ECHR granted a wide margin of manoeuvre for Spain to decide how to organize the structure of this relation and the balance of different interests.²⁶

In this regard, the ECHR analysed the scope of autonomy of religious communities, which the Court interpreted in terms of the right to religious freedom (Article 9 of the European Convention on Human Rights) that is practised in a communal form as part of freedom of association (Article 11 of the same treaty).²⁷ Citing its own jurisprudence,²⁸ the ECHR recalled that

The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords. It has a direct interest, not only for the actual organisation of those communities but also for the effective enjoyment by all their active members of the right to freedom of religion. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable.²⁹

Accordingly, the ECHR, following its previous jurisprudence,³⁰ considered that respect for religious autonomy implies that the State should recognize the right of religious communities to organize themselves according to their own rules and interests.³¹ Thus, one of the aspects of this autonomy is the selection of religious teachers by the religious community (through a certificate of suitability). This is the same approach adopted by the Human Rights Committee (HRC) in its General Comment No. 22, where it stated that

The practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as, inter alia, the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.³²

Furthermore, the ECHR recognized that religious freedom does not include a right to dissent within a religious community or a right to change the doctrinal views of an organization, so that ‘in the event of any doctrinal or organisational disagreement between a religious community and one of its members, the individual’s freedom of religion is exercised by the option of freely leaving the community’.³³ If the State were to intervene in these internal debates, it would violate its duty of neutrality and impartiality, because the State would improperly act as an arbiter to determine the legitimacy of religious beliefs between communities.³⁴

Thus, the ECHR held that the recognition of this autonomy implies that

The State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is therefore not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them.³⁵

Moreover, citing its previous judgements,³⁶ the ECHR held that ‘the principle of religious autonomy prevents the State from obliging a religious community to admit or exclude an individual or to entrust someone with a particular religious duty’.³⁷

On the other hand, the ECHR recognized that belonging to a religious community entails a ‘duty of loyalty’ arising from the autonomy of religious communities,³⁸ which is compatible with the European Convention on Human Rights, as referenced by its previous cases.³⁹ This duty implies that religious communities ‘can demand a certain degree of loyalty from those working for them or representing them’.⁴⁰ In this regard, the ECHR argued that this duty of loyalty must be taken into account in the proportionality test to determine the legitimacy of the interference and the limits of religious autonomy.⁴¹

Regarding the limits of this autonomy, the ECHR recognized that ‘a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its members’ rights to respect for their private or family life compatible with Article 8 of the Convention’.⁴² Moreover, the measure must not go beyond what is necessary to eliminate the threat and must not be a pretext for pursuing unrelated purposes.⁴³ The national authorities must ensure that these conditions are met in a balancing of interests.⁴⁴

Thus, the ECHR analysed the applicant’s situation in light of his duty of loyalty and the scope of religious autonomy. In this case, Mr Fernández had ‘knowingly and voluntarily accepted a heightened duty of loyalty towards the Catholic Church, which limited the scope of his right to respect for his private and family life to a certain degree’.⁴⁵ In this regard, the ECHR recognized that ‘the Church’s interest in upholding the coherence of its precepts, teaching Catholic religion to adolescents can be considered a crucial function requiring special allegiance’.⁴⁶ Where there is a discrepancy between the teachings of the Church and the teacher’s personal beliefs, this ‘may raise an issue of credibility if the teacher actively and publicly campaigns against the ideas in question’.⁴⁷ This is particularly relevant given that the applicant acted as a religious teacher and, therefore, as a representative of the Church.⁴⁸

Another important issue to be considered about the status of the applicant was his situation as a teacher in a public school and remunerated with public funds. In this regard, the ECHR argued that such a condition did not affect the applicant’s duty of loyalty, which was confirmed by the practice of the majority of the Council of Europe member states, where religious education is provided in state schools and where the religious communities concerned have ‘a power of co-decision or even an exclusive role in the appointment and dismissal of religious-education teachers, regardless of which institution finances such teaching, directly or indirectly’.⁴⁹

Regarding the severity of the sanction, the ECHR concluded that it was not disproportionate. This court noted that Mr Fernández was entitled to unemployment benefits.⁵⁰ Moreover, the consequences for the applicant were foreseeable since he knew that to be in this situation was incompatible with the Church’s precepts and that a less severe measure would not have had the effect of preserving the Church’s credibility.⁵¹

The ECHR had another opportunity to pronounce itself on the same issue in 2017, in the case of Travaš v Croatia. In this case, the ECHR elaborated on the specific nature of the contractual relationship of a teacher of religion. In doing so, the Court recalled that this type of employment involves ‘the interaction between private life stricto sensu and professional life’, because ‘the requirements for this kind of specific employment were not only technical skills’, but also a congruence between a way of life and the teachings of the Church.⁵² Accordingly, the ECHR emphasized that the duty of loyalty is particularly relevant when the employment relates to ‘one of the essential functions of the Church and its religious doctrine’, rather than non-representative positions (eg an organist).⁵³

The ECHR added that:

The requirement of a heightened duty of loyalty may relate also to questions of the way of life of religious teachers. Lifestyle may be a particularly important issue when the nature of an applicant’s professional activity results from an ethos founded in the religious doctrine aimed at governing the private life and personal beliefs of its followers, as was the case with the applicant’s position of teacher of Catholic religious education and the precepts of the Catholic religion. In observing the requirement of heightened duty of loyalty aimed at preserving the Church’s credibility, it would therefore be a delicate task to make a clear distinction between the applicant’s personal conduct and the requirements related to his professional activity.⁵⁴

The ECHR is not the only human rights mechanism to have adopted this position. The HRC took the same approach in the communication Delgado Paez v Colombia,⁵⁵ although in this case, the HRC did not develop a solid legal argument to support its conclusions.

B. Religious freedom and equality at the IACHR: Pavez Pavez v Chile

On the other side of the Atlantic Ocean, a case similar to Fernández Martínez was analysed by the IACHR in 2022. The case concerns Mrs Sandra Pavez Pavez, who has been working as a Catholic religion teacher in a municipal public high school since 1985. According to the Chilean legal system, the regulation of this type of Municipal Corporations is governed by private law, and therefore, although Mrs Pavez worked in a public school, her contract was governed by private law, and she was not considered a public employee.⁵⁶

Religious instruction in educational institutions in Chile (both public and private) is regulated by Decree 924 of the Chilean Ministry of Education of 1983. Article 9 of the Decree states that ‘in order to carry out their duties, religious education teachers shall be in possession of a certificate of suitability granted by the corresponding religious authority, which shall be valid as long as it is not revoked’.⁵⁷

In 2007, Mrs Pavez was informed of the revocation of her certificate of suitability through a written communication. The decision was based on a lack of loyalty to the Church’s moral and doctrinal views on sexuality since Mrs Pavez expressed her sexual orientation as a lesbian.⁵⁸ Because of this situation, the school administration offered her a promotion to the position of inspector general (which did not include teaching duties), where she received a higher salary.⁵⁹ The assignment of such a position did not require a new contract or a violation of the existing one, rather, this possibility of change was consistent with the provisions agreed upon in her employment contract, which established that Mrs Pavez was hired as a teacher and not specifically as a religion teacher.⁶⁰ However, Mrs Pavez instituted proceedings against this decision because she considered it a violation to her right to privacy, the principle of non-discrimination, and the right to work.

The first challenge for the IACHR was the question of attribution for the existence of an internationally wrongful act to trigger the responsibility of the Chilean state.⁶¹ In the present case, the nature of the contractual relationship between the applicant and the school, according to Chilean law, was of a private contract, and therefore, the applicant was not considered a public servant and the school authorities were not considered as state organs. Thus, the act that led to the alleged violation of human rights was attributable to the Church authorities, not to the state.

To circumvent this problem, the IACHR argued that the State of Chile had ‘delegated’ the task of certifying the suitability of religion teachers to religious authorities, which according to the IACHR, was not an inherent power of religious communities but rather a power granted by the state.⁶² Thus, the court concluded that ‘Decree 924 conferred attributes of public power upon the religious authorities, and therefore, when issuing the certificate of suitability to religious education teachers, they exercise an act that is directly attributable to the State’.⁶³ Furthermore, the IACHR stated that since the school was a public institution that received public funds, ‘the nature of the functions she [Mrs. Pavez] performed were those of a public servant, whose access and tenure in a position depended ultimately on the decision of a State institution’.⁶⁴

Regarding the alleged violations, the applicant argued that Decree 924 was incompatible with the right to equality because the certificate was issued arbitrarily,⁶⁵ which also violated her right to privacy, the principle of non-discrimination, and the right to work.⁶⁶

Accordingly, the IACHR decided to frame the issue in terms of whether the Decree violated the right to equality.⁶⁷ To this end, the Court sought to determine whether the power of religious authorities to grant this type of certificate is compatible with the American Convention on Human Rights (ACHR); and the Court also considered whether Decree 924 established differences in treatment that could be discriminatory based on the prohibited categories of Article 1(1) of the ACHR.⁶⁸

To analyse the content of this Decree in terms of its compatibility with the ACHR, the IACHR appointed ex officio the expert witness Paolo Carozza (a former commissioner of the Inter-American Commission on Human Rights and former director of the human rights programme at the University of Notre Dame) and Gerhard Robbers (a member of the advisory board of the International Center for Law and Religion Studies and founding editor-in-chief of the Oxford Journal of Law and Religion). Both are internationally recognized experts on religious freedom and the relationship between law and religion.

Mr Carozza noted that there are different legal traditions that ‘offer very different constitutional models with respect to the relationship between religion and the State’, among them, the ACHR ‘allows States to fulfil their obligations by supporting the direct teaching of religion in public schools’.⁶⁹ Accordingly, Decree 924 was not considered per se contrary to this human rights treaty.⁷⁰

However, the IACHR maintained that this Decree did not comply with human rights standards because it ‘unconditionally delegates the power to grant certificates of suitability to persons to teach religion classes in public schools, without there being a clear mechanism to challenge such decisions’.⁷¹ The court did not provide a legal basis for such a conclusion, which contradicted the expert testimony of Carozza and Robbers.

With regard to the autonomy of religious communities, the IACHR maintained that the selection by a religious authority of the persons in charge of teaching religious education does not fall within the scope of this right.⁷² The legal basis for this conclusion was the statement of one expert witness, Rodrigo Uprimny,⁷³ (whose expertise was in discrimination in employment relations), which contradicted the position of other experts whose expertise was in the autonomy of religious communities (Paolo Carozza and Gerhard Robbers).⁷⁴ The position presented by Mr Robbers was not even mentioned by the court in any part of the decision.

Uprimny maintained that the autonomy of religious communities is reduced to the concept of ‘ministerial exception’, which allows them to determine

Who are the members of that church, who are its ministers, its hierarchies, … but when this ministerial exception is projected in other spheres it is weakened … this idea that religious education teachers are covered by the exception is far from generating consensus …, in the case of the Catholic religion, I believe that the ministerial exception can be applied there … but not when it is applied in the field of education.⁷⁵

Based on Uprimny’s interpretation of this doctrine, the IACHR argued that children’s right to education would be violated if religious authorities were allowed to select their own teachers of religion, and thus their representatives in the educational system, based on their own religious views.⁷⁶

The IACHR maintained that if religious authorities were to designate teachers of religion who share their religious views, this would amount to a discriminatory act that contradicts the very purpose of the right to education,⁷⁷ although the victim did not allege a violation to the right to education.

The IACHR then proceeded to determine whether the revocation of the certificate of suitability by the religious authorities constituted a violation of the applicant’s rights to privacy and non-discrimination. With regard to the right to privacy, the IACHR asserted that there was a violation of the right to privacy because there was an interference in Mrs Pavez’s sexual life.⁷⁸ The IACHR also argued that Mrs Pavez’s right to work (which is not mentioned in the ACHR) was violated ‘to the extent that the reassignment of duties experienced by Sandra Pavez Pavez undermined her teaching vocation and constituted a form of demotion in her job’.⁷⁹

Following this argument, the IACHR proceeded to analyse whether these violations breached the principle of non-discrimination. When the difference in treatment is based on one of the categories protected by Article 1(1) of the ACHR, the Court applies a ‘strict scrutiny’ proportionality test.⁸⁰ This test is more stringent than when categories not included in Article 1(1) of the ACHR are the reason for the difference in treatment. Thus, under this test, the difference in treatment ‘must be necessary to achieve an imperative objective recognized by the Convention, and the means chosen must not only be adequate and appropriate, but also necessary’, which means that the means ‘cannot be replaced by a less injurious measure’.⁸¹ Additionally, ‘the benefits of adopting the measure in question must clearly outweigh the restrictions it imposes on the conventional principles affected by it’.⁸²

In this case, the IACHR argued that ‘the costs of the restrictive measure to the detriment of Sandra Pavez Pavez do not outweigh the advantages obtained in terms of protecting religious freedom and the right of parents to choose their children’s education’.⁸³ It also stated that it was not clear ‘that there is an actual or potential infringement of the autonomy of the religious community, or of the right to religion, or the right of parents or guardians to have their children or wards receive the religious education that is in accordance with their beliefs’, because she had the support of some students.⁸⁴

With respect to Mrs Pavez’s duty of loyalty, which was part of her role as a religion teacher, the IACHR also took a different path than the ECHR. Here, the IACHR reiterated that such a duty cannot ‘justify or legitimize different treatment that is discriminatory based on the categories protected by Article 1(1) of the Convention’.⁸⁵

3. A COMPARISON BETWEEN THE ECHR AND THE IACHR’S APPROACHES

The comparison of these two cases reveals significant disparities in the legal analysis and methods used by the IACHR and the ECHR concerning the attribution of state acts, framing the issue at hand, their tests of proportionality, the use of sources, the interpretative methodologies, and the content of autonomy of religious communities.

A. Rules on attribution

Regarding the question of attribution, the ECHR focused solely on the state’s involvement in carrying out the implementation of the Bishop’s decision to categorize it as a state act. Although the ECHR’s use of the rules of attribution has not always been consistent with the Draft Articles on State Responsibility for Internationally Wrongful Acts (DARSIWA),⁸⁶ in this case the ECHR did not deviate from these principles. Actually, it followed these rules by being mindful of Spanish internal law, which plays the decisive role in determining who an organ of the state is.⁸⁷

Conversely, the IACHR analysed the Church’s revocation directly as a delegated act by a religious authority (a private person). The IACHR disregarded the particular categorization and regulation of this issue as determined by Chile’s national legal order. This court categorized the act as a ‘delegation’ of powers, according to a theory of attribution that does not exist in International Law.

Moreover, as the State of Chile and some scholars argued, this function of the Church did not constitute a ‘delegation’ of authority (according to the national legal order), but rather a natural function of religious authorities.⁸⁸ This approach of the Chilean state is not strange; some other jurisdictions follow the same model⁸⁹ because International Law recognizes (as the ECHR recalled) a great diversity in the legal frameworks that states are allowed to pursue in regulating state–religion relations.⁹⁰

Furthermore, although in some cases, the actions of private entities may be attributable to the state,⁹¹ the IACHR usually conducts a detailed analysis under the framework of the duties to ensure, prevent, and protect.⁹² These duties are analysed through the prism of the state’s due diligence obligations,⁹³ and thus, there are no direct human rights obligations for private entities that can be adjudicated by the IACHR; rather, the object of the legal analysis is always an obligation of the state (eg the state’s duty to conduct an investigation and supervise the activities of private entities).⁹⁴ In the case of Pavez Pavez, this legal reasoning is lacking, which does not explain why the acts of the religious communities could be attributed to the Chilean state under the norms of International Law. Thus, the IACHR departed from recognized International Law and even its previous jurisprudence without explaining its novel approach to attributing acts committed by private entities.

B. Framing the issue at stake

Framing the issue at hand is crucial in every ruling, as it establishes the relevant legal parameters and facts to be considered. The issue addressed by the ECHR concerned the extent of autonomy that religious communities have regarding employment contracts for religious teachers. The IACHR, on the other hand, focused on whether or not the autonomy recognized to religious authorities by the Chilean state breached the right to privacy, the principle of non-discrimination, and the right to work of Mr Pavez.

The ECHR further analysed the matter by outlining the particular circumstances of Mr Fernández’s role as a teacher of religion who accepted and knew of the responsibilities attached to this position. In contrast, the IACHR assessed Mrs Pavez’s situation without considering these elements. Instead, the IACHR prioritized the right to privacy as a general and contextual element to limit the extent of autonomy granted to religious communities. Conversely, the ECHR approached this analysis from the opposite viewpoint, where the autonomy of religious communities serves as the general and contextual background to restrict the extent of the right to privacy.

C. The test of proportionality

Both the IACHR and the ECHR use distinctive proportionality tests to examine violations of the right to privacy and the principle of non-discrimination.⁹⁵ Nevertheless, in the discussed cases, the ECHR established the necessary stages to determine whether the measure taken against Mr Fernández was proportional or not, and provided justifications for Spain’s compliance or lack thereof. The IACHR also established the guidelines for assessing the human rights situation of Mrs Pavez, according to its proportionality test, but refrained from complying with the steps of the test and thus failed to provide a detailed explanation of how Chile violated these standards.

The IACHR concluded that Mrs Pavez’s rights to privacy, to work, and the principle of non-discrimination were violated by Chile, but this court did not carry out its own test of proportionality to clarify whether or not there was a human rights violation since not every interference in one’s private life is a human rights violation. The IACHR did not assess whether the aim was legitimate or not, nor whether the measure was necessary or not in a democratic society. In this regard, the IACHR did not respond to Chile’s assertion that the certificate of suitability pursued the aim of protecting the rights of others, mainly religious freedom as established in Article 12 of the ACHR, which includes the right of parents ‘to provide for the religious and moral education of their children or wards that is in accord with their own convictions’.⁹⁶ Therefore, the IACHR reached its conclusion without responding to Chile’s arguments and without providing any legal reasoning, as some scholars have noted and criticized.⁹⁷

Moreover, regarding the right to work, undermining the applicant’s ‘vocation’ is not a category recognized as part of this right.⁹⁸ As Judge Humberto Sierra Porto noted in his concurring opinion, ‘in order to reach this conclusion, the judgment does not provide a solid basis in light of the inter-American corpus iuris’.⁹⁹ Sierra Porto critically noted that

With regard to a person’s vocation as an area protected by the right to work, the Court’s failure to substantiate its position is evident. The judgment does not explain what this concept refers to, whether it is associated with a person’s profession in general, or with the scope of a specific contract; nor does it indicate the scope of this obligation for the State, or what its limits are in relation to the contract or the need for the service. Even more serious, the Court does not explain which provisions directly or indirectly recognize vocation as part of the right to work in the field of international human rights law. Furthermore, the Court does not specify on the basis of which criteria of interpretation it is possible to conclude that Article 26 (…) protects vocation as part of the right to work. On the contrary, in order to provide a legal basis for the violation of Article 26, the Court refers to paragraphs 88 to 90 of the decision, in which it only mentions the prohibition of discrimination in labor matters, leaving its position without legal support.¹⁰⁰

Additionally, differing opinions were expressed by these courts regarding whether safeguarding religious autonomy constitutes a legitimate aim for the purpose of the proportionality test. The ECHR asserted that the aforementioned autonomy is necessary in a democratic society to protect religious freedom in its collective manifestation, and therefore, freedom of association, consistent with the ECHR’s own jurisprudence, human rights treaties, and the approach of treaty bodies.¹⁰¹ However, it appears that the IACHR (although it did not clarify this point) did not consider safeguarding religious autonomy as a legitimate aim to be pursued by the state.

D. The content and limits of religious autonomy

The IACHR took a different approach to framing the issue and carrying out its proportionality test, resulting in varying stances on the extent of religious autonomy. The ECHR, the HRC, and certain apex courts maintain that the selection of religious teachers by religious communities is protected under the scope of religious autonomy, as they are representatives of those communities.¹⁰² Hence, some limitations to human rights are consistent with the protection of this autonomy.

In contrast, the IACHR, based on a wrongful application of the American doctrine of the ‘ministerial exception’, considered that this function is not protected by religious autonomy. Moreover, the IACHR argued that religious autonomy must not comprise the selection of teachers of religion by religious communities, maintaining that they are not representatives of those communities and arguing that it would violate children’s right to education.

Here, the IACHR made a strong and controversial assertion without providing solid evidence to support such a conclusion. The Court stated that the appointment of teachers of religion by religious communities (on the basis of their religious doctrine) directly contradicts the very aims and purposes of the right to education. Such reasoning precluded considering that a state act requiring a religious community to appoint a particular teacher of religion would amount to a discriminatory act based on religion, which is prohibited by Article 1(1) of the ACHR. Moreover, such an interpretation would constitute an illegitimate State’s interference with freedom of religion and freedom of association, which would infringe upon the state’s duty of neutrality and impartiality in religious affairs, as recognized by the ECHR.

On the other hand, the ‘ministerial exception’ is a local doctrine developed in American jurisprudence¹⁰³ that has not been transferred to IHRL, at least not in the narrow interpretation adopted by the IACHR. Moreover, Uprimny provided a limited and partial panorama of this doctrine, which led to its erroneous application by the IACHR to limit the autonomy of religious communities in matters related to education. The American Supreme Court of Justice recently ruled that this doctrine should be applied broadly to cover labour disputes involving teachers of religion because, although they are not ‘ministers’, they perform core functions related to the mission of religious communities.¹⁰⁴

In contrast, the ECHR applied the proportionality test, taking into account that most European states recognize the right of religious communities to appoint their own teachers and representatives, thus recognizing Mr Fernández’s duty of loyalty as a teacher of Catholic religion. The ECHR considered that Mr Fernández was aware that certain personal decisions would conflict with the institution’s doctrine.

The IACHR did not address this issue, which is crucial for applying a more contextualized and comprehensive proportionality test. This court boldly stated that any differentiation in treatment based on one of the categories of Article 1(2) of the ACHR would automatically violate the principle of non-discrimination. As some scholars have criticized, the IACHR made an unjustified and a priori value judgment in which there is a strict priority of one’s sexual and individual characteristics over religious and collective ones as elements that are important for one’s identity and autonomy.¹⁰⁵ Moreover, the IACHR argued that due to the public funding of the school, any duty of loyalty (and religious autonomy) would be precluded, which contradicts not only the jurisprudence of the ECHR, but also the practice of many states, as noted by the ECHR.

E. The use of sources

Both the ECHR and the IACHR reached divergent conclusions regarding the scope of religious autonomy of religious communities in the context of publicly funded schools. However, the most interesting aspect of these conclusions is that they derive from very different legal sources. The ECHR supported its claim using its own jurisprudence and comparative law, specifically state practice in other European states. In contrast, the IACHR lacked legal grounds for its conclusion, relying only on a questionable interpretation of the American domestic doctrine of the ‘ministerial exception’ and supported by a sole expert witness specializing in non-discrimination (and contradicted by two expert witnesses on religious autonomy).

In the Pavez Pavez case, although the state of Chile and several amicus curiae referred to the jurisprudence of the ECHR and the pronouncements of the HRC,¹⁰⁶ the IACHR decided not to take them into account. Although the IACHR continuously bases its decisions on an international corpus iuris of human rights,¹⁰⁷ in this case, it selectively reduced this corpus to certain treaty provisions,¹⁰⁸ while omitting (without providing any reason for its departure from the precedents of other mechanisms) the contradictory pronouncements of the HRC and the ECHR.

The only interaction that can be seen in the decision between the IACHR and the views of the ECHR is a footnote in a paragraph which states that

Catholic religion classes, which are part of a public education program in public schools, financed with public funds, are not within the scope of religious freedom that should be free from any interference by the State, since they are not specifically related to religious beliefs or to the organizational life of the communities.¹⁰⁹

In support of this conclusion, the IACHR cites a paragraph of the Fernández Martínez v Spain case,¹¹⁰ which gives the impression that the IACHR did not read the case in its entirety and only selectively took a paragraph that seemed to support its argument. This is so because other paragraphs of the ECHR’s ruling explicitly state that the choice of teachers of religion falls within the scope of the autonomy of religious communities and is considered a legitimate aim for the restriction of rights,¹¹¹ regardless of whether these courses receive public funding in a public school or not.¹¹²

On the other hand, it is interesting to note that the expert witnesses presented by the representatives of the victims openly contradicted the views of the ECHR and the HRC. These experts were Rodrigo Uprimny, a former member of the Committee on Economic, Social and Cultural Rights (2016–18); and Estefanía Esparza Reyes, a professor of Chilean constitutional law. During the interrogation, both experts claimed that the ECHR was wrong in assessing the scope of autonomy of religious communities.¹¹³ Both based their disagreement on their own personal views, but they did not provide any legal arguments or authoritative interpretations of other human rights mechanisms or even of national courts to support their opinions.

Moreover, one of them (Mrs Esparza), while openly acknowledging that she was not an expert on International Law or IHRL and that she ignored the scope of autonomy of religious communities in International Law, still insisted that the pronouncements of the HRC and the ECHR were wrongly decided, arguing that they went against some academic views in Chile.¹¹⁴

Despite this acknowledged ignorance, the IACHR decided to adopt the arguments of Mrs Esparza, while ignoring the arguments of the expert witnesses on religious autonomy (and also experts in IHRL) called ex officio by the very IACHR (Paolo Carozza and Gerhard Robbers), who stated that there is no precedent in IHRL that prevents religious communities from deciding on their own teachers of religion.¹¹⁵ Thus, the IACHR adopted the views of an expert in Chilean constitutional law (who acknowledged her ignorance about the topic as regulated in IHRL) while it discarded the views of two expert witnesses on the issue at stake and well-recognized international human rights scholars.

On the other hand, the victim’s representative argued in this respect that although the regional and universal human rights systems can dialogue with each other, the Inter-American system is different and is not obliged to follow the decisions of the ECHR or the HRC.¹¹⁶ There is indeed no hierarchy nor a rule of precedent between these two regional courts. However, the victim’s representative did not provide a legal argument to discern when the dialogue is necessary and when it is not, or when a regional court can ignore the precedents of other mechanisms and when they should be considered. Thus, the IACHR adopted the jurisprudence of the ECHR in other previous cases,¹¹⁷ while it discarded them in this case, which raises the question of the relevant legal criteria for this determination to avoid the arbitrary use of case law as a source.

On the other hand, this lack of consideration of other positions is evident not only in the IACHR’s reluctance to analyse the positions of the ECHR and the HRC, but also in its consideration of comparative law, which is relevant to the determination of customary norms, and therefore, one of the primary sources of International Law. In this regard, there is a large body of comparative law from different states that have adopted a favourable position towards a wide scope of autonomy of religious communities in the choice of their teachers of religion (Trinidad y Tobado,¹¹⁸ Canadá,¹¹⁹ Brazil,¹²⁰ and the USA¹²¹), which was not taken into account by the IACHR.

Thus, the IACHR’s main arguments to decide this case were based on Uprimny’s and Esparza’s ideas, which did not provide a clear reason why this court preferred to follow the views of these academicians instead of the pronouncements of other experts (the ECHR, the HRC, or even of Paolo Carozza).

This discrepancy merits further examination, particularly given the contrast in conclusions when the two courts encounter an issue not explicitly regulated by their mandate treaties. In such circumstances, where there is a lack of European consensus on sensitive moral issues, the ECHR has recognized that states can exercise a broad margin of appreciation in the absence of clear regulation in IHRL.¹²² Meanwhile, the IACHR has determined that such an absence of explicit regulation empowers the court to make a unilateral decision on how the issue should be uniformly regulated in all states¹²³ through a doctrine called conventionality control.¹²⁴

In the Fernández Martínez case, the ECHR, using comparative law, implicitly concluded that it could not establish a uniform model or condemn state choices due to the diverse constitutional models regulating state and religion in Europe. States have a range of legitimate options recognized under the margin of appreciation. On the other hand, the IACHR asserted that it could condemn the choice made by the Chilean legal order due to the differing constitutional models on this matter. This reduces the range of options to the parameters established by the IACHR, despite the absence of clear regulations in the ACHR.¹²⁵

In this respect, the ECHR has adopted a more bottom-up approach based on deference to states and consensus to develop human rights standards,¹²⁶ while the IACHR has been reluctant to use comparative law and has opted for a more unilateral and uniform approach to develop human rights standards.¹²⁷ As some scholars note, this lack of flexibility and lack of recognition of pluralism by the IACHR results in a model that not all states have agreed to accept, and that is provoking problems in the region.¹²⁸

4. CONCLUSIONS

Fragmentation within the IHRL regime could lead to divergent or even contradictory human rights standards, which could undermine the universality of these norms and the legitimacy of the system.

This article analysed a recent contradiction between the ECHR and the IACHR's positions regarding the scope of religious communities’ autonomy and the principle of non-discrimination in employment contracts. A closer examination of their arguments reveals that the quality of the legal reasoning presented by these courts in these cases did not enjoy the same degree of legal rigour or coherence with the general rules of International Law.

In the case of Fernández Martínez v Spain, the ECHR ruled that the selection of religious teachers by religious authorities (both in public and private educational institutions) falls within the scope of religious autonomy recognized to these communities. The IACHR, for its part, reached the opposite conclusion in Pavez Pavez v Chile. While the ECHR relied on the notion of the duty of loyalty, a contextualized analysis of the case and the specific situation of the application, and on the use of the margin of appreciation; the IACHR based its conclusion on the doctrine of the ministerial exception, the prioritization of the principle of non-discrimination, and an emphasis on the public nature of the educational institution.

As can be seen in the analysis of these two cases, the different approaches of the ECHR and the IACHR reveal the use of different sources and methods of legal analysis. In the case of Pavez Pavez, the IACHR lacked a more rigorous argumentation to support its conclusions. The IACHR relied on a very reduced set of sources, mainly, the American domestic doctrine of the ‘ministerial exception’ and the opinions of two expert witnesses. Also, regarding the methodology and doctrines used by the IACHR, this Court lacked a rigorous and coherent use of the proportionality test.

This combination of poor use of sources and the proportionality test undermines the legitimacy of the human rights system. These types of decisions, made without solid legal reasoning and foundations, give the impression that the IACHR decided the case based on the policy preferences of its members, which are embellished and concealed by citing the opinions of experts sympathetic to those preferences.

The quality of the IACHR’s reasoning could have been enriched by a more rigorous use of legal sources and the thorough application of its proportionality test. The IACHR could have relied on comparative law material or a jurisprudential dialogue with other mechanisms, such as the ECHR and the HRC.

Accordingly, a comparative analysis could be a useful tool for improving the quality of legal reasoning provided by human rights mechanisms in a context of fragmentation, which can help to keep the integrity and coherence of the system without imposing a uniform approach. In the cases at hand, the IACHR had the opportunity to contrast its position with those previously adopted by the ECHR and the HRC, but the court was reluctant to even look at them. Thus, this judicial fragmentation could have been avoided by considering previous judgments, relying on comparative law, and explaining and legally justifying any divergent position.

Footnotes