Commission des Episcopats de la Communauté Européenne
Commission of the Bishops’ Conferences of the European Community
Kommission der Bischofskonferenzen der Europäischen Gemeinschaft
Draft EU Guidelines on the Promotion and
Protection of
Freedom of Religion or Belief
A Contribution by the
Secretariat of COMECE
(Commission of the Conferences of Bishops of the
European Community)
8 April 2013
Commission des Episcopats de la Communauté Européenne
Commission of the Bishops’ Conferences of the European Community
Kommission der Bischofskonferenzen der Europäischen Gemeinschaft
1.- Introduction
The Secretariat of COMECE (Commission of the Conferences of Bishops of the
European Community), acknowledging the work done by the responsible drafters in
the EEAS concerning the “Draft EU Guidelines on the Promotion and Protection of
Freedom of Religion or Belief”, is pleased to submit its contribution to the EEAS,
containing the following comments and proposals.
2.- Comments
2.1.-Collective dimension of FORB
Individual and collective dimensions of FORB are equally essential, as recognized by
International Law.
There is a legal and practical need to recognize the institutional dimension of FORB,
mainly through the legal recognition of the juridical personality of Churches, religious
or non religious communities and associations:
a) Temples, religious places, cemeteries, etc., are not usually individual
properties. A predominant individual approach to FORB does not cover
sufficiently this fact.
b) Social and charitable activities are inalienable part of the
ethos of most of
churches and religious communities. These activities are almost
impossible to be carried out if the FORB’s institutional dimension is not
legally recognized. For example, to open a bank account for charitable
purposes, to receive a bank transfer for cooperation aid, to access the real
state Registry in order to set up a hospital, etc., are indispensible means to
reach charitable goals. These actions can’t be easily done by single
individuals on their own behalf. The result is that the most vulnerable
people in third countries will suffer the lack of legal recognition of
Churches, religious and non religious entities, which impedes their
charitable activities.
In fact, points 37 c), d) and e) of the Guidelines show a certain expression of this
collective dimension of FORB, but it should be reinforced in II.A) 2. (“Individual and
collective dimensions of the right to Freedom of religion or belief”).
2.2.- Non discrimination
Human Rights must be harmonized amongst themselves. A balanced and harmonized
interpretation of FORB with other fundamental rights and principles, particularly with
the principle of non-discrimination, must prevent any undue “over prevalence” of this
last one, which might undermine the essence of FORB. In practice, the principle of
non-discrimination must not hijack the autonomy of Churches and religious
communities and other
ethos based entities, which is essential to FORB.
Commission des Episcopats de la Communauté Européenne
Commission of the Bishops’ Conferences of the European Community
Kommission der Bischofskonferenzen der Europäischen Gemeinschaft
2.3.- Limits to FORB
Following a Human Rights general principle, limitations to FORB as set up in
International Law, should be interpreted narrowly in order to give as much as possible
room for freedom.
2.4.- The moral dimension of religion and convictions
FORB is not only a matter of faith or believes, but it is strictly linked with human
behavior and its morality. Largest religions, such as Christian or Muslim, have a
general code of conduct directly connected with their religious principles, affecting
private, family, social and professional life of their faithful. For this reason, it is
advisable not to reduce FORB only to faith, but also to include morality.
2.5. Civil society. The principle of autonomy of Churches and religious
communities
The Catholic Church is not an NGO.1 Her self-understanding is determined by her
essential divine origin and spiritual goal and vocation. Her religious understanding
includes highly moral requirements towards the society and the service of every
human being. The Catholic Church is very active in the promotion of the temporal
common good of the society and the protection of the human dignity of every single
person and her fundamental rights, throughout the activities of her institutions,
faithful, priests and religious people, parishes, etc.
With this background, the Catholic Church, as such, is not part of the civil society.
The principle of autonomy of Churches and religious communities is the answer to
this reality, in which purely civil categories are unable to explain their essence and
activities. For example: the priesthood vocation can’t be merely reduced to labour
categories; collective worship is much more than an exercise of the right of assembly;
faithful are not only members of an association. The principle of autonomy obliges
third parties (States or not state actors) not to interfere in the internal life of Churches
and religious communities.
All this does not mean that certain catholic inspired institutions could not be
considered as members of the civil society.
2.6.- Tolerance and minorities
FORB is much more than tolerance, particularly towards minorities. We consider that
instead of tolerance, the EU should require third parties abroad a full and integral
respect of FORB and not only tolerance towards religious minorities. The “majority-
minority” logic does contribute to perpetuate discrimination towards minorities by
1 Section V of the Transparency Registry includes “Organisations representing churches and religious
communities”, with a differentiated status from NGOs (Section III). See:
http://europa.eu/transparency-register/your-organisation/who-register/index_en.htm
Commission des Episcopats de la Communauté Européenne
Commission of the Bishops’ Conferences of the European Community
Kommission der Bischofskonferenzen der Europäischen Gemeinschaft
mainstreaming society. Instead of this narrative, the logic of integral common
citizenship might help to destroy the idea that the “majority” only tolerates the
“minority”, and does not positively recognises the fundamental rights of all citizens,
in equal terms.
2.7. Teaching and education
Education is much broader than teaching. Moral and religious education goes beyond
formal instruction and teaching in schools or universities. Instruction, from the
religious point of view, includes not only teaching religion but also transmitting a
religious and moral transversal perspective in all the other subjects in which moral
and religious principles could be relevant. It also includes religious instruction for
religious people.
Education of minors is primary a right and a responsibility of parents. States or other
social actors can’t substitute or undermine this primary fundamental right, which is
widely recognised in International Law. Parents are entitled to educate their children
in accordance with their moral and religious convictions and beliefs..
2.8.- UN General Comments
In addition to the UN Human Rights Committee’s General Comment Nr. 22, it is
useful to take into account also other General Comments, amongst them:
-Nr 11 (Article 20. Prohibition of propaganda for war and inciting national,
racial or religious hatred).2
-Nr 16 (Article 17. The right to respect of privacy, family, home and
correspondence, and protection of honour and reputation).3
-Nr 23 (Article 27. The rights of minorities).4
-Nr 28 Article 3. The equality of rights between men and women) (Replaces
general comment No. 4).5
2 Adopted: 29 July 1983:
“(Article 29) “paragraph 2 is directed against any advocacy of national, racial
or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such
propaganda or advocacy has aims which are internal or external”. 3 Adopted in 8 April 1988. In particular, point 11:
“Article 17 affords protection to personal honour
and reputation and States are under an obligation to provide adequate legislation to that end.
Provision must also be made for everyone effectively to be able to protect himself against any
unlawful attacks that do occur and to have an effective remedy against those responsible.”
4 Adopted in 26 April 1994. In particular, points 5.1 and 6.2. 5.1:
“(…) A State party may not, therefore,
restrict the rights under article 27 to its citizens alone.” 6.2:
“ (…) “positive measures by States may
also be necessary to protect the identity of a minority and the rights of its members to enjoy and
develop their culture and language and to practice their religion, in community with the other
members of the group.” At:
http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111
5 Adopted: 29 March 2000. In particular
, point 21:
“States parties must take measures to ensure that
freedom of thought, conscience and religion, and the freedom to adopt the religion or belief of one’s
choice - including the freedom to change religion or belief and to express one’s religion or belief - will
Commission des Episcopats de la Communauté Européenne
Commission of the Bishops’ Conferences of the European Community
Kommission der Bischofskonferenzen der Europäischen Gemeinschaft
-Nr 34 (Article 19: Freedoms of opinion and expression).6
2.9.- About the ANNEX (“Non-exhaustive list of international norms, standards
and principles the EU may invoke in contact with third countries”)
A) The list should not include EU Law (which is not common with third countries).
Any reference to EU law might be seen by certain third countries as an attempt to
“impose” a European vision of FORB. A possible solution is to make a separate
Annex II, including only EU Law.
B) It is not advisable to include the Arab Charter on Human Rights in the list.
Actually, when the Arab Charter came into force in 2008, the UN High Commissioner
for Human Rights, Louise Arbour, declared the incompatibility of certain provisions
of the Arab Charter with international standards, which also directly affects religious
freedom of women, minors and non citizens.7 In our view, the EU should not endorse,
be guaranteed and protected in law and in practice for both men and women, on the same terms
and without discrimination. These freedoms, protected by article 18, must not be subject to
restrictions other than those authorized by the Covenant and must not be constrained by, inter alia,
rules requiring permission from third parties, or by interference from fathers, husbands, brothers or
others”
6 12 September 2011. In particular, on the application of Article 19 (3):
“32. The Committee observed in general comment No. 22, that “the concept of morals derives from
many social, philosophical and religious traditions; consequently, limitations... for the purpose of
protecting morals must be based on principles not deriving exclusively from a single tradition”. Any
such limitations must be understood in the light of universality of human rights and the principle of
non-discrimination”.
33.
Restrictions must be “necessary” for a legitimate purpose. Thus, for instance, a prohibition on
commercial advertising in one language, with a view to protecting the language of a particular
community, violates the test of necessity if the protection could be achieved in other ways that do not
restrict freedom of expression. On the other hand, the Committee has considered that a State party
complied with the test of necessity when it transferred a teacher who had published materials that
expressed hostility toward a religious community to a non-teaching position in order to protect the
right and freedom of children of that faith in a school district.”
“48.
Prohibitions of displays of lack of respect for a religion or other belief system, including
blasphemy laws, are incompatible with the Covenant, except in the specific circumstances
envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the
strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for
instance, it would be impermissible for any such laws to discriminate in favour of or against one or
certain religions or belief systems, or their adherents over another, or religious believers over non-
believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of
religious leaders or commentary on religious doctrine and tenets of faith.”
Available at: http://ccprcentre.org/doc/ICCPR/General%20Comments/CCPR-C-GC-34.pdf
7
“Throughout the development of the Arab Charter, my office shared concerns with the drafters about
the incompatibility of some of its provisions with international norms and standards. These concerns
included the approach to death penalty for children and the rights of women and non-citizens.
Moreover, to the extent that it equates Zionism with racism, we reiterated that the Arab Charter is not
in conformity with General Assembly Resolution 46/86, which rejects that Zionism is a form of racism
and racial discrimination. OHCHR does not endorse these inconsistencies.” Available at
http://www.un.org/apps/newsFr/storyF.asp?NewsID=15698&Cr=Arbour&Cr1=droits#.UV8bJYH_nfm
Commission des Episcopats de la Communauté Européenne
Commission of the Bishops’ Conferences of the European Community
Kommission der Bischofskonferenzen der Europäischen Gemeinschaft
directly or indirectly, any text which is not fully in line with general international law
and standards.
C) We propose to change the title of the Annex: “Non-exhaustive list of general and
regional international texts”, including only texts by UN (general) and 4 regions:
Europe (Council of Europe and OSCE), Americas (OAS), Africa (AU) and Asia
(ASEAN).8
8 http://www.asean.org/news/asean-statement-communiques/item/asean-human-rights-declaration