Religious Freedom in Europe: Trouble in Paradise

Aaron Rhodes is president of the Forum for Religious Freedom-Europe; between 1993-2007, he was executive director of the International Helsinki Federation for Human Rights.  He is the author of "The Debasement of Human Rights" (Encounter Books 2018).

Everyone knows that European citizens have the strongest legal protections of their human rights of any people in the world. And yet there are reasons to question the commitment on the part of courts, governments and civil society to protecting our most basic freedoms. This is especially true as regards the freedom of religion.

Every European Union member state protects the freedom of religion as a constitutional right, both in legislation and social policy. Each has endorsed the principles contained in the Universal Declaration of Human Rights, and religious persecution and genocide were a central impetus to European leadership in the process of establishing the international human rights system. All EU states have ratified the International Covenant on Civil and Political Rights. All have joined the European Convention on Human Rights. All have signed on to the political commitments undertaken in the Helsinki Process, as members of the Organization for Security and Co-operation in Europe (OSCE).

And of course, EU members have pledged to adhere to the standards in the European Charter of Human Rights. The Charter incorporates a possibly wider array of rights and freedoms than any other human rights treaty; on the EU website, it is written that the Charter is a “very modern codification” and reflects an “updated” array of human rights, suggesting an elastic quality. There are 50 substantive articles that make no division or conceptual differentiation between human rights to basic freedoms like the freedom of religion, and “solidarity rights” to things like “consumer protection” and “good administration” (whatever that is supposed to mean).

The Charter also protects “the right to access a free placement service” as a fundamental human right. We could ignore this as politics as usual, but the problem is that all European states have embraced the idea that all human rights are equal and indivisible, a utopian idea that has become a human rights dogma. Is the right to employment counseling just as important, just as paramount, as the prohibition against slavery or the right to freedom of religion? Or, put another way, are those rights no more important than publicly funded employment counseling?

More generally, aren’t our most cherished freedoms, the freedoms that allow us to make moral distinctions and judgments, and to take those into the political arena and to advocate for our vision of social justice, being diluted by this kind of human rights inflation?

I have raised this issue in public meetings with top United Nations and EU officials, but they have just brushed it aside, and these problems are typically papered over by thought-terminating clichés. But we cannot be satisfied when official human rights dogma leads us toward a situation when something like the freedom of religion, arguably our first freedom, the freedom of form a basic moral orientation, is equated with banal social policy. And we should bear in mind that with the dramatic expansion of human rights since the early 1990s, human rights campaigns globally have stalled, and indeed, human rights are even used as a justification for restricting human rights. The esteemed Polish economist Leszek Balcerovic observed that we have more rights, but less freedom.

Since some human rights, like the right to employment counseling, are obviously not natural or inalienable rights, but rather those dependent on the state, there is a marked tendency to consider our fundamental freedoms as arbitrary and political, and all human rights have lost their sacrosanct character. Indeed, one rarely hears any reference to natural rights in human rights discourse these days, and if we do it is when natural rights are fashionably denied. As American Professor Hadley Arkes wrote, natural rights are often claimed to be political and arbitrary, while the nonexistence of natural rights is seen as a hard, objective fact.

Another profound problem is that the freedom of religion, as well as other basic rights, is subject to numerous conditions and derogations in European human rights treaties. This tendency has led to a debasement of fundamental freedoms. The European Convention on Human Rights, set up as a bulwark against totalitarianism, confirmed that “Everyone has the right to freedom of thought, conscience and religion.” But the Convention says this freedom can be limited in the interests of "public safety...the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

The result is that it is too easy for the European Court to uphold interferences in religious affairs. Numerous European states are passing highly dubious laws restricting harmless manifestations of Islamic faith, and the European Court has given the green light for the process, one that is “part of an ongoing attempt to shame, provoke and marginalize Muslims.”[1]

The reasoning of the European Court on this issue is, quite frankly, derisory. According to the Registry statement, “the Court accepted that the barrier raised against others by a veil concealing the face in public could undermine the notion of ‘living together.’” According to the Court Register, the Court ruled that “the barrier raised against others by a veil concealing the face was perceived by the respondent State as breaching the right of others to live in a space of socialisation which made living together easier.” As the Forum for Religious Freedom-Europe stated at the time, “Living together, in a pluralistic society where individual rights are respected, means tolerating differences, not prohibiting them because others ‘might not wish to see them.’” [2]

I am not aware of any universal human right to “live in a space of socialization.” But it apparently trumps the freedom of religion. And in spite of all our treaties and charters, that could spell trouble for the freedom of religion in Europe.

[1] See Mira Sucharow, “Why Jews Must Defend Muslim Women’s Rights to Wear the Burqa,” Haaretz 19 October 2017

[2] “European Court of Human Rights Fails to Protect Religious Freedom,” FOREF-Europe, 3 July 2014.