Militant Democracy and Religious in Europe.

Patrick Macklem of the University of Toronto has posted Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe' on SSRN. It covers the case law of the European Court of Human Rights concerning the religion state nexus.

This is the abstract: This essay tracks the concept of militant democracy in the jurisprudence of the European Court of Human Rights, where it has migrated from a principle that authorizes a state to act in a militant manner to preserve democratic processes to one that entitles a state to establish perimeters and guard against threats of a different kind.

Militant democracy now authorizes a state to assume a militant stance toward the exercise of religious freedom that threatens substantive conceptions of democracy instantiated in its constitutional order. The essay identifies four substantive conceptions of democracy liberal democracy,  secular democracy, republican democracy and conservative democracy  to which militant democracy has migrated in recent years.

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Religious Expression

On July 17, despite the lack of any evidence of a specific threat to public order, the rights of others, or the secular status of France’s public institutions, the European Court of Human Rights upheld a French law that prohibits the wearing of conspicuous symbols of religious affiliation in government run schools. The dismissal by the European Court of Human Rights of the claims of the affected students as inadmissible reflects the ongoing dilemma European nations and public authorities face in trying to properly calibrate their response to possible threats posed to democracy by religious extremism.

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Interlaken next year on the reform

The upcoming conference in Interlaken next year on the reform of the supervision of the ECHR is already yielding a range of preparatory documents. The Commissioner for Human Rights of the Council of Europe has published a memorandum in which he gives his views. He points amongst others to the need to strengthen national supervision of human rights and specifically national monitoring by e.g. national human rights institutions. Not surprisingly the Commissioner also calls for more staff for his own office in order to make his own contribution to the ECHR supervisory system. In the past few years, the budget of the Council of Europe's institutions (apart from the Court) has indeed stagnated. Now that both attention and emphasis are being put more heavily on implementation of the Court's judgments, the enabling environment - as I would call it - of the Convention indeed needs reinforcement.

The Steering Committee for Human Rights (CDDH) in which all state parties are represented has now also made public its 'Opinion on the issues to be covered at the high-level Conference on the future of the European Court of Human Rights'. This document is probably the best indication of the issues to be addressed at Interlaken and also gives an insight in current thinking on the part of the states involved. It will, by the way, be the only intergovernmental contribution, to this conference, it is expected. Just to highlight a few points: the states seem to remain committed to the individual right of application. But further on in the document, an important proviso is added:

In the longer term, there lies the possibility that the Court might one day develop to have some degree of power to choose from amongst the applications it receives those that would receive judicial determination. The time is not yet ripe, however, to make specific proposals to this end.
It is also suggested that a system of fees might be introduced to reduce the number of clearly inadmissible applications. In this same context, the document mentions several options to make the filtering of applications more effective, such as:

(i) a new, separate body of judges within the Court, responsible for filtering;
(ii) additional judges appointed to the existing bench;
(iii) the discharge of certain judicial powers by members of the Registry;
(iv) at least in the short-term, until other solutions can be implemented, a rotating pool of judges taken from the existing bench.
The CDDH also calls upon the Court itself to be clear and coherent and "to take full accoonut of its subsidiary role" - is that a plea to revive a strong margin of appreciation application and in general to leave more to the state parties? One might question whether this way of handing responsibility back to national authorities will automatically strengthen human rights protection. In that sense, supervising human rights is not the same as raising children by giving them increased responsibilities. Caution is called for here.

The Secretary General of the Council of Europe, Thorbjørn Jagland, has also drafted his contribution (dated 18 December) to Interlaken, which will soon be online on the Council of Europe's website.

Finally, on the NGO front, action is also being undertaken to make sure that the reforms will truly happen and more specifically will really strengthen the system of supervision. As I reported last week, there is a joint NGO statement. The drafting NGOs of this document are now calling for other NGOs, in as many ECHR state parties as possible, to endorse this document to make civil society's voice resound in the hills around Interlaken. NGOs who want to endorse the document or who have further questions about it, can contact the main drafters at Europeigoteam at amnesty.org .

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Declaration on the Elimination of All Forms of Intolerance and ofDiscrimination Based on Religion or Belief

The General Assembly,
Considering that one of the basic principles of the Charter of the United Nations is that of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action in co-operation with the Organization to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,
Considering that the Universal Declaration of Human Rights and the International Covenants on Human Rights proclaim the principles of nondiscrimination and equality before the law and the right to freedom of thought, conscience, religion and belief,
Considering that the disregard and infringement of human rights and fundamental freedoms, in particular of the right to freedom of thought, conscience, religion or whatever belief, have brought, directly or indirectly, wars and great suffering to mankind, especially where they serve as a means of foreign interference in the internal affairs of other States and amount to kindling hatred between peoples and nations,

Considering that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed,

Considering that it is essential to promote understanding, tolerance and respect in matters relating to freedom of religion and belief and to ensure that the use of religion or belief for ends inconsistent with the Charter of the United Nations, other relevant instruments of the United Nations and the purposes and principles of the present Declaration is inadmissible,

Convinced that freedom of religion and belief should also contribute to the attainment of the goals of world peace, social justice and friendship among peoples and to the elimination of ideologies or practices of colonialism and racial discrimination,

Noting with satisfaction the adoption of several, and the coming into force of some, conventions, under the aegis of the United Nations and of the specialized agencies, for the elimination of various forms of discrimination,

Concerned by manifestations of intolerance and by the existence of discrimination in matters of religion or belief still in evidence in some areas of the world,

Resolved to adopt all necessary measures for the speedy elimination of such intolerance in all its forms and manifestations and to prevent and combat discrimination on the ground of religion or belief,

Proclaims this Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief:

Article 1. Right to thought, conscience and religion
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Article 2. Prohibition of discrimination
No one shall be subject to discrimination by any State, institution, group of persons, or person on the grounds of religion or other belief.
For the purposes of the present Declaration, the expression "intolerance and discrimination based on religion or belief" means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

Article 3. Meaning of discrimination on the grounds of religon or belief
Discrimination between human being on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.

Article 4. Obligation to prevent and eliminate discrimination on the grounds of religion or belief
All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.

Article 5. Rights of the child
The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.
Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.
The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.
In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle.
Practices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development, taking into account article 1, paragraph 3, of the present Declaration.

Article 6. Scope of the freedom of thought, conscience, religion or belief
In accordance with article I of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms:

To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;
To establish and maintain appropriate charitable or humanitarian institutions;
To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;
To write, issue and disseminate relevant publications in these areas;
To teach a religion or belief in places suitable for these purposes;
To solicit and receive voluntary financial and other contributions from individuals and institutions;
To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;
To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;
To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.

Article 7. Relation of the rights with domestici legislation
The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.

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