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Principles of National Constitutionalism limiting Individual Claims in Human Rights Law

Abstract The scope of the fundamental right to freedom of religion has been broadly discussed in recent jurisprudence and doctrine. Doctrine has however paid little attention to the role of constitutionalism and its principles such as this of the separation of church and state and the division of power. These principles are often not mentioned as such in international human rights treaties. Does this mean that they are irrelevant in human rights adjudication? This article addresses the proper function of constitutionalism in human rights jurisprudence and in settling religious conflicts more in general. The Lautsi judgment of the European Court of Human Rights is used as a trigger to look at the relationship between religion, constitutionalism and human rights, and at the legitimacy of supranational courts. The article argues that international human rights jurisprudence must take national constitutionalism and its principles into account when dealing with the freedom of religion, even when those principles are not explicitly enshrined in human rights treaties. For this the use of the margin of appreciation seems to be appropriate.