Reconciling Judicial Approaches to Limitations on Rights in Hard Cases: the Challenge of Religious Freedom

This paper argues that in hard cases, courts often struggle to adopt a principled approach to their construction of limitations on rights. Through a comparative analysis of the European Court of Human Rights' (ECtHR) approach to the ban on the full face-veil vis-a-vis the UN Human Rights Committee's (HRC) approach in the hotly contested S.A.S. v France and Sonia Yaker v France cases, this paper contends that the time has come for courts to seriously revisit how they approach limitations on rights in hard cases. In this connection, it critiques the increasing indeterminancy of the 'legitimate aims' test, and the unwieldy nature of the margin of appreciation doctrine, which is characterized by the search for consensus. It concludes by arguing that courts should consider reliance on the Siracusa principles when faced with limitations on rights in hard cases, though it acknowledges that these principles are not a panacea, as UN Treaty Bodies continue to be beset by the problem of lack of compliance with their 'views' by recalcitrant states parties.