Opening speech - 44th Annual Study Session in International and Comparative Law of Human Rights: “Religions and international human rights law”
Check against delivery
I welcome you all to the hemicycle of the Council of Europe, the home of human rights.
I have accepted with pleasure the invitation of the "International Institute of Human Rights" to chair this opening ceremony of the 44th Annual Study Session - for two reasons.
Before telling you these reasons, let me first pay tribute to my good friend, Jean-Paul Costa, with whom we co-operated so closely during his time as President of the Court. It was during this period that many important steps were taken to reform the Court system, and I am pleased that today, thanks to the efforts of Jean-Paul Costa, the European Court of Human Rights is in a much more stable situation to meet the human rights challenges of Europe today.
One is the excellent and long-standing co-operation between the International Institute and the Council of Europe. The protection and development of human rights is our common mission. We both want to ensure that human rights are effectively implemented, throughout our 47 member states and beyond, in a common legal space. We are keenly aware that it is not enough to formulate human rights standards; they will only become part of our legal and democratic culture if they are taught, promoted and supported through research and documentation. And that is where the International Institute plays a very important role indeed.
The other reason has to do with the theme of this study session. "Religions and international human rights law" is a subject which has become increasingly relevant for us, especially in recent years. Article 9 of the European Convention of Human Rights — the freedom of thought, conscience and religion — not only echoes Article 18 of the Universal Declaration of Human Rights, but also spells out its legitimate limitations.
In the daily practice of the European Court of Human Rights, one may get the impression that this right is rather marginal. Last year, only six of the 900 judgments in which the Court found a violation concerned Article 9; and only three of our member states were involved. Since 1959, only 46 violations of Article 9 have been found by the Court — a tiny fraction of the total of over 13 000 judgments handed down.
But this impression is misleading. The Court itself has described Article 9 as one of the foundations of a ‘democratic society' within the meaning of the Convention. It can only be restricted on grounds of legitimate aims identified in an exhaustive manner in the Convention. Article 9 has a fundamental value not only for the believer, but also for atheists, agnostics, sceptics and the unconcerned. You only have to read the case-law of the Court to understand that questions such as the obligation to swear a religious oath; the mandatory indication of one's religious affiliation on official documents; on conscientious objection; questions like taxation or state recognition of religious communities; or the right to wear religious symbols in public — that all these issues are fundamental indicators of a free and democratic society which fully respects human rights.
Already twelve years ago the International Institute of Human Rights made this the topic of a study session, which bore the title "the international protection of religious freedom". Given the increasingly multicultural and multi-religious composition of our societies, given also the resurgence of religion in the public sphere, it is more than appropriate to revisit this theme now.
However, the human rights perspectives on religion — and the religious perspectives on human rights law — are considerably wider than the protection of religious freedom, which is at their basis.
These wider perspectives include for instance the contribution of religious communities towards our ability to live together peacefully in multicultural societies and their responsibility to participate in intercultural dialogue. They include the appropriate division of roles and responsibilities between religious communities and the secular state, often discussed under the titles of separation, secularism and mutual autonomy. They include the question how to regulate and prosecute blasphemy, religious insult and incitement to religious hatred. They include the question how the secular state can value cultural religious heritage in an impartial manner. They include the question how to find an appropriate balance between the freedom of thought, conscience and religion, and the other fundamental rights protected by international mechanisms.
These questions are increasingly relevant for a tolerant society, for the prevention of conflicts and the peaceful settlement of disputes. They are questions which influence the general quality of democracy.
Human rights are generally regarded as universal, indivisible and interdependent and all of them must be upheld without exception. None of them can be set aside due to cultural and religious practices and customs amounting to human rights abuses. On the other hand, it may sometimes be necessary to allow for differential treatment to ensure de facto equal enjoyment of the rights by all individuals. This may require introducing appropriate exceptions to a general norm in order to accommodate diversity. Providing a religious group with alternative opportunities in accordance with their conscience might, far from creating unjust inequalities or discrimination, ensure cohesive and stable pluralism and promote religious harmony and tolerance in society.
For example providing alternative measures for conscientious objectors who refuse to perform military service motivated by deeply and genuinely held religious or other beliefs is now recognised in most European states (1). In employment situations there may be a duty for private or public companies to accommodate an employee's or a prospective employee's religious observance or practice, for instance the wearing of religious symbols or clothes at work, on the condition that this does not cause undue hardship to the conduct of the employer's business (2).
The Council of Europe, as the guardian of democracy, human rights and the rule of law on our continent, has therefore developed a more and more intense sensitivity for the role of religion in democracy. Today we assist our member states with practical guidelines and political recommendations, such as the ones published by the "European Commission for Democracy through Law", the "Venice Commission", which has time and again expressed itself on many intricate questions regarding religion such as granting legal status to religious communities (for instance, in Turkey), the scope of religious freedom in the constitutional order of certain member states (Armenia, Georgia or Romania) or the penalisation of blasphemy. We assist our member states in running operational programmes, for instance in the field of cultural heritage and education. Together with them – and with civil society - we launch campaigns, such as the one against hate speech on the Internet: as you know, hate speech very often targets specific religious beliefs and minority cultures.
Ladies and Gentlemen,
These questions are all complex ones, and ones on which emotions sometimes run high. This is why it is doubly important that we can base our reflections on a solid foundation of standards, and from a point of view of respect and inclusion. Your observations will help us all to advance the reflection on what human rights mean today and which challenges they may face tomorrow. Your debates will deepen the culture of human rights, here in Europe and around the world.
I thank you for your attention.
(1) Bayatyan v. Armenia (2011)
(2) Eweida and Others v. the United Kingdom (2013).
22 December 2017
Letter to the President of Romania, Klaus Iohannis
18 July 2017
Letter to the Speaker of the Sejm, Marek Kuchciński