| Constitution or even the law relating to religion or belief. The transformation of the classic liberal state into a modern welfare state and the increasing diversification of Christian denominations from the early 19th century onwards altered the setting in which freedom of religion or belief and church and state relationships are embedded. In an indirect way, this transformation has influenced actual limitations as well as the potential for exercise of freedom of religion or belief. More recently, shifts can be seen in the religious spectrum due to the secularization process Christian churches are experiencing, as well as the permanent settlement in the Netherlands of increasing numbers of adherents of non-Christian religions.2Legal developments, though perhaps not directly aimed at church or religion, may nevertheless affect these and raise questions as to how their interests should be taken into account.3Thus, even though basic principles governing freedom of religion and belief have not been altered, the general dynamic in law and society indirectly influences the potential for exercising freedom of religion as well as the actual limitations that are experienced. The Dutch legal system is receptive to international law. The impact of international law is generally strong, and is even stronger in these times of internationalization.4Furthermore, EU-law is rapidly developing, also in the field of fundamental rights. This development is relevant to our topic as well. This essay deals with the constitutional framework in which the right to freedom of religion or belief is set as well as with the constitutional establishment of the right to and limitations of freedom of religion or belief A. The Constitutional Framework: Sources of Law Establishing and Limiting Manifestations of Freedom of Religion or Belief 1. International Law International fundamental rights law is of great importance for an assessment of the limitations on fundamental rights in the Netherlands. This is due to the status of international law in Dutch law. Since 1953, the Netherlands Constitution explicitly states that "(p)rovisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published".5Furthermore, statutory regulations in force within the Kingdom shall not be applicable if their application is in conflict with such provisions and regulations.6As a consequence, legislation, including Acts of Parliament and even the Constitution itself, is subject to judicial review on its compatibility with provisions of treaties that are binding on all persons or of resolutions by international institutions. Any court in the Netherlands has the power to review statutory regulations in force within the Kingdom on their compatibility with these treaty provisions or resolutions by international institutions.7This is especially important as the Dutch courts do not have the power to review the constitutionality of parliamentary legislation (see below). Prior to 1953, this monistic view had already been commonly accepted as a principle of law. The Netherlands are party to a vast body of treaties concerning fundamental rights, including the European Convention on Human Rights ("European Convention")8and the International Covenant on Civil and Political Rights (ICCPR),9which guarantee freedom of religion in Articles 9 and 18,10respectively. From the 1960s onwards, various well-known cases concerning freedom of religion and belief under the European Convention were decided by 5 GRW. NED. ch. V, art. 93. Dutch courts.11In these cases, the Supreme Court appeared to adopt a restrictive approach to its power of review, as well as a very restrictive interpretation of Article 9 of the European Convention.12Some of the cases on religion decided by the Supreme Court have been furthered to the former Commission on fundamental rights and the European Court of Fundamental Rights (ECHR). To date, the results have been negative.13Also, international provisions exist which deal with certain aspects of religious freedom.14 In evaluating the current attitude of the courts towards the application of Article 94 of the Constitution, two elements are of importance. First, the courts have taken a more active approach towards review and are willing to draw consequences earlier. The cases concerned, however, are not pertinent to religion.15Second, in the end, the courts decide whether a treaty provision is self-executing. In doing so, the courts have taken a more liberal view over the decades. The legislature amends laws after court decisions. To date, this has had no practical significance with respect to religion. Apart from treaty provisions, in the UN, there are also the Universal Declaration of Human Rights (Article 18)16and the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief17as well. Although no explicit references were made to these international provisions during the process of revision of the Constitution of 1983, it is justified to say that these elements are relevant in interpreting freedom of religion or belief as guaranteed in the Netherlands Constitution. Comparison between the treaty provisions on religion and the Netherlands Constitution shows that the former contains specifications of the material content.18An elaborate specification of elements of freedom of religion is also contained in Article 3 of the UN Declaration.19 The same is true for the vast body of Organization for Security and Cooperation in Europe (OSCE) obligations.20OSCE human rights obligations are not self-executing, and can play no direct role in court proceedings. The significance of these obligations, however, may not be in court proceedings, but ultimately in their functioning in the legislative and policy process. It must be admitted that, until now, OSCE obligations on religion or belief do not feature strongly in the public awareness. In so far as they are relevant to freedom of religion or belief, their relevance lies first and foremost in the explication of various dimensions of the manifestation of religion or belief that is protected, and not so much in the limitations allowed to be set to this right. European Community ("EC") / European Union ("EU") law requires special attention. Article 92 of the Constitution states "Legislative, executive, and judicial powers may be conferred on international institutions by or pursuant to a treaty, subject, where necessary, to the provisions of Article 91 (3)."21On this basis, powers are conferred on the EC/EU. At an early stage of its existence, the Court of Justice of the EC had specified the character of EC law and its superiority over domestic law.22This superiority is independent from the general system of reception of international law within the legal system. As a result, the status of EC law is identical in every Member State of the EC. EC law enjoys priority over domestic law and EC law can be directly invoked (provided that the law itself answers the basic criteria necessary for being directly invokable).23 EC/EU law has become increasingly relevant with respect to religion. With the growing expansion of EC law in the 1980s and onwards, it became clear that so-called "spill over" effects also manifested themselves in areas that were relevant to religion and to church and state relationships.24This posed the question as to what attitude the EC would need to take in these matters. At the same time, references to church or religion started to appear in secondary legislation.25An example is found in EC Directives on the harmonisation of tax laws.26 Parallel to these developments, a more general discussion started to emerge on fundamental rights protection in the EC. Initially, no systematic fundamental rights protection was envisaged, as the EC was only set up as an Economic Community and was considered to pose no threat whatsoever to fundamental rights. Although this starting-point may be questioned theoretically, the practical aspects came to the forefront with the expansion of EC competences and activities. Stimulated by pressures of national constitutional courts, it was the Court of Justice of the EC that through its case law took the lead in developing fundamental rights protection.27 With the subsequent treaty amendments, notably those of Maastricht and Amsterdam, various specific provisions with a fundamental rights dimension were adopted. Of great importance for our topic is the adoption of joint Declaration nr.11 (no treaty status) to the Final Act of the Treaty of Amsterdam, stating "The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.28The European Union equally respects the status of philosophical and non-confessional organisations." The necessity of a statement on this issue is all the more clear if we realise that since "Amsterdam" the EC Treaty also contains an Article 13 enabling action to counter discrimination based on certain features.29It is clear that legitimate interests need to be balanced, as the enactment of a subsequent Directive on employment shows. At a more systematic level, too, developments occurred in the protection of fundamental rights in the context of the EU. The treaty of Maastricht adopted a general reference to fundamental rights (ex Article F TEU). This provision Comment [PC1]: Is th another quotation in paragraph? Comment [PC2]: Pleas was specified and extended by the Treaty of Amsterdam.30 These developments did not satisfy those who promoted the adoption by the EU of a systematic catalogue of fundamental rights. Subsequent developments led to the establishment of a Convention to design...
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