Freedom of Religion in the European Court of Human Rights: Reconciling Ideas of ‘Diversity’ with the
Sahar Ahmed is a PhD student in Trinity College Dublin, supported by a Postgraduate Research Studentship researching the right to freedom of religion within the international human rights legal system and Islamic jurisprudence. Sahar graduated from the University of London’s International Programme in 2010 with an LL.B (Hons) degree. She then went on to undertake the Bar Professional Training Course at The City Law School, London, being called to the Bar of England and Wales in 2011, and is a barrister member of the Honourable Society of Gray’s Inn. Sahar practiced as a commercial and corporate barrister in Lahore, appearing before the courts as an Advocate of the High Courts of Pakistan, covering a wide range of contentious and quasi-contentious matters. Sahar then studied at the School of Oriental and African Studies (SOAS, University of London), reading for the LLM with a concentration in International Human Rights Law, as an Annemarie Schimmel Scholar, and graduated with distinction in 2015. She was also awarded the School of Law Prize for Best Performing LLM Student. This degree was pursued alongside a research volunteer position at Amnesty International in London, researching human rights violations of religious minorities and the then recent lifting of moratorium on the death penalty in Pakistan, for the Pakistan-Afghanistan Team.
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Europe has had a long standing and difficult relationship with religion for many centuries, many times being the source of conflict and war, and ‘has witnessed one after another fierce religious struggle.’ And although there are no longer the kind of ‘violent conflicts that once had their origins in religious enmity’ which took place in the sixteenth and seventeenth centuries, contemporary Europe’s relationship remains complicated, albeit taking on a different hue and colour. The questions raised, being fuelled by the ongoing debate over religion’s place in European integration, cultural and religious diversity, and what it ‘means’ to be European, are often left to the European Court of Human Rights to answer.
With the context of all the religious (and otherwise) wars that have shaped Europe and the European ‘project’ in to what it is today, it would be incomplete to simply say that ‘religion’ has played an integral part in this formation of modern Europe, without pointing out which religion, in specific. ‘Europe is suffused with Christianity, or at least memories of its past influence’ and this ‘Christian heritage is essential to the civilizational identity of Europe’, therefore to vaguely credit all ‘religion’ for the cultural, political, and legal imprint that Christianity has left on Europe would be an intellectual disservice because the ‘history of Europe and Christianity are inextricably entwined’- no one aspect of either can be explained without an explanation of the other as well. But on a continent as religiously diverse as Europe, that claims to be committed to the idea of religious and cultural equality, having a historical hegemony of one predominant religion which informs much of its present understandings of law, culture, and society, is bound to create some tension- is equality truly possible when our conception of equality is heavily influenced by a particular theological and philosophical strain of knowledge?
With Europe having played a pivotal role in our (admittedly, entirely colonised) conceptualisation of modernity and its inextricable facets in the form of democracy, the nation-state, human rights, and civilisation, an examination of the right as it exists in Europe today is critical for our understanding of what the right to freedom of religion is presently. Indeed, it becomes a necessary tool to predict where this right will go from here as well. This becomes even more important when we realise that the forum which has generated the most substantive jurisprudence on religion and its adherents’ place in society (ie the European Court of Human Rights) is also one of the more heavily criticised ones.
This should lead us to the inevitable question then as to how this tension between Europe’s Judeo-Christian past and its current diversity can be resolved, in the context of one of the aspirations of modern and liberal Europe- to not discriminate when it comes to religion.
It has been argued also that the ratification of the European Convention of Human Rights, of which Article 9 protects freedom of thought, conscience, and religion, was a ‘notable but incomplete step towards resolution’ of this tension. With this context, I then suggest that resolution of this tension can only come about if the European Court of Human Rights adopts a more critical approach to the concept of ‘religion’ as found in Article 9 of the ECHR because the Court’s conception of ‘religion’ in legal terms is limited to the idea of ‘belief’, which very specifically privileges liberal Protestant Christianity over other overtly communitarian religions which visibly and obviously ‘manifest’ themselves, eg, Islam and Sikhism, (and even to some extent Catholicism and Orthodox Christianity). Therefore, there is always going to be an inherent bias in favour of (liberal Protestant) Christianity in how the Court understands what religion is and what its ‘manifestation’ means to different adherents.
It has been suggested that any examination of religion within the law should not be to discover ‘how the term religion is used, whether in the world at large or in the legal community, but to know how the term religion should be used, in the interpretation, the application, and the justification of a fundamental freedom.’ However, I must disagree with this idea as without examining how the term religion itself is used, it is impossible to suggest how it should be used. And whilst it is important to acknowledge and appreciate that at no point does the Court explicitly favour a liberal Protestant version of Christianity (as to do so would completely negate the purpose of the ECHR and Article 14 within it) it is worth noting that the way the Court interprets Article 9 and tries to reconcile it with the simultaneous and diametrically opposing claims of states and their religiously diverse citizens, betrays that it is informed by a Judeo-Christian understanding of religion, thereby essentially furthering the tension between what the liberal human-rights objective of protection of freedom of religion is and the conceptual and practical implementation (or lack thereof) of it.
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