ABSTRACT
This chapter suggests four tools which could contribute to mitigating the divergence in the international protection of new minorities’ right to freedom of religion. The first tool is the reference to precedents, an important means to increase the persuasiveness of judicial reasoning, if it is not based on a selective approach and valid explanations are furnished when a precedent is not followed. A second tool is considerations related to the concept of the margin of appreciation, which can convey the message to states that their concerns are taken seriously. Although the extensive use of this concept by the ECtHR in the case law regarding new minorities is deeply problematic, valid reference to related considerations could increase the persuasiveness of the HRC’s reasoning. The third suggested tool is the reference to the case law of other judicial bodies, not only to show that the respective body’s legal reasoning is shared by other bodies, but also to contrast the conclusion reached to contradicting decisions and explaining why an approach is to be preferred. The fourth tool regards giving due regard to the principle of systemic interpretation by considering the standards established in the context of minority specific instruments.
