Human rights
in culturally diverse
societies
Challenges and perspectives
The Hague, Netherlands,
12-13 November 2008
Proceedings
100
95
75
25
COUNCIL
OF EUROPE
CONSEIL
DE L’EUROPE
5
0
HUMAN RIGHTS
IN CULTURALLY DIVERSE SOCIETIES
CHALLENGES AND PERSPECTIVES
Conference proceedings
The Hague
12-13 November 2008
Directorate General
of Human Rights and Legal Affairs
Council of Europe
October 2009
Édition française : Les droits de l’Homme dans des sociétés culturellement diverses :
défis et perspectives
Conference, “Human Rights in culturally diverse societies: challenges and perspectives”,
co-organised by the Council of Europe and the Ministry of the Interior and Kingdom
Relations of the Netherlands, 12-13 November 2008, Spaansche Hof, The Hague. This
publication has been made possible by a financial contribution from the Ministry of
the Interior and Kingdom Relations of the Netherlands.
The opinions expressed in this publication are those of the respective contributors
and do not engage the responsibility of the Council of Europe. They should not be
regarded as placing upon the legal instruments mentioned in it any official interpretation capable of binding the governments of member states or the Council of
Europe’s statutory organs.
Directorate General of Human Rights and Legal Affairs
Council of Europe
F-67075 Strasbourg Cedex
© Council of Europe, 2009
Printed in the Netherlands
Contents
Foreword
Philippe Boillat, Director General of Human Rights and Legal Affairs of the
Council of Europe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Opening session
Mr Terry Davis, Secretary General of the Council of Europe . . . . . . . . . . . . . . . . . . . . . . .13
Ms Maud de Boer-Buquicchio, Deputy Secretary General of the Council of
Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Ms Guusje ter Horst, Minister of the Interior and Kingdom Relations of the
Netherlands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Challenges faced by culturally diverse societies in Europe
Mr Thomas Hammarberg, Council of Europe Commissioner for Human Rights . . . . . .25
Ms Corien Jonker, Chair of the Committee on Migration, Refugees and
Population of the Parliamentary Assembly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Ms Ilze Brands-Kehris, Acting First Vice-President of the Advisory Committee
on the Framework Convention for the Protection of National Minorities . . . . . . . . . . . . .30
Mr Heiner Bielefeldt, Director of the German Human Rights Institute . . . . . . . . . . . . . .35
Integration and respect for diversity
Ensuring equal enjoyment of human rights and preserving social cohesion
Ms Eva Smith-Asmussen, Chairperson of the European Commission against
Racism and Intolerance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Ms Işil Karakaş, Judge at the European Court of Human Rights . . . . . . . . . . . . . . . . . . . .48
Mr Donald H. Oliver, Senator for Nova Scotia, Canada . . . . . . . . . . . . . . . . . . . . . . . . . . .54
Ms Esther Maurer, Member of the Congress of Local and Regional Authorities’
Committee on Social Cohesion, Rapporteur on Migration Issues . . . . . . . . . . . . . . . . . . . .62
Workshop I
Freedom of religion and the role of the state – more than setting an impartial and
neutral framework?
Mr Malcolm D. Evans, Professor of Public International Law, Dean of the
Faculty of Social Sciences and Law, University of Bristol . . . . . . . . . . . . . . . . . . . . . . . . . . .67
Ms Dounia Bouzar, Anthropologist in religion as a social and cultural
phenomenon, Researcher at the French Institute of Higher National Defence
Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70
Ms Barbara John, Member of the European Commission against Racism and
Intolerance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
........ 3
Report of the discussion: Mr Marc Tysebaert, General Advisor at the Federal
Ministry of Justice of Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Workshop II
How to find a proper balance between freedom of expression and protection
against “hate speech”?
Ms Bissera Zankova, Member of the Steering Committee on the Media and
New Communication Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Mr Githu Muigai, UN Special Rapporteur on Contemporary Forms of Racism,
Racial Discrimination, Xenophobia and Related Intolerance . . . . . . . . . . . . . . . . . . . . . . . 91
Ms Finola Flanagan, Member of the European Commission for Democracy
through Law (Venice Commission), Member of the Management Board of the
European Union Agency for Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Report of the discussion: Mr Michael Head, Member and former Chair of the
European Commission against Racism and Intolerance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Workshop III
Exercise of the rights to freedom of association and peaceful assembly by persons
and groups with varied identities: how to ensure proper public participation?
Mr Michael Hamilton, Transitional Justice Institute, University of Ulster,
Secretary to the OSCE/ODIHR Panel of Experts on Freedom of Assembly . . . . . . . . . . . 103
Report of the discussion: Ms Nina Belyaeva, Member of the OSCE/ODIHR Panel
of Experts on Freedom of Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Introduction (second day)
Mr Philippe Boillat, Director General of Human Rights and Legal Affairs of
the Council of Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
The way forward – living together and respecting diversity
Mr Tariq Ramadan, Professor of Islamic Studies, Visiting Professor of Citizenship
and Identity at Erasmus University Rotterdam, Senior Research Fellow at
Oxford University . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Ms Mominat Omarova, Chairperson of the Steering Committee for Equality
between Women and Men . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Ms Gabriella Battaini-Dragoni, Council of Europe Co-ordinator for Intercultural
Dialogue, Director General of Education, Culture and Heritage, Youth and
Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Mr Cristoph Spreng, Special Advisor for Intercultural Dialogue, Conference of
INGOs of the Council of Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Ms Anastasia Crickley, Chairperson of the Management Board of the European
Union Agency for Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
4 ........
Round table
Presentation of the manuals on “hate speech” and the wearing of religious symbols
in public areas
Mr Marten Oosting, Member of the Council of State and former National
Ombudsman, the Netherlands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Concluding remarks
Mr Jan E. Helgesen, President of the European Commission for Democracy
through Law (Venice Commission) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Appendices
Appendix 1, Declaration by the Committee of Ministers on human rights in
culturally diverse societies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Appendix 2, Programme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Appendix 3, Participants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
........ 5
FOREWORD
Mr Philippe Boillat
Director General of Human Rights and Legal Affairs of the Council of
Europe
European societies are diverse in many ways and increasingly so. They bring together
people with a variety of ethnic, religious, cultural or other backgrounds. One of the
main challenges faced nowadays by our democratic societies is to cater for diversity
whilst continuing to develop and strengthen social cohesion. This raises numerous
human rights questions, some of which are extremely topical: is freedom of speech unlimited? What should be the relation between the state and religion? How can we
ensure the full enjoyment of freedom of assembly by all?
To address these questions, the Council of Europe and the Ministry of the Interior
and Kingdom Relations of the Netherlands co-organised an international conference
entitled “Human Rights in culturally diverse societies: challenges and perspectives”
which took place in The Hague on 12 and 13 November 2008. This conference was a
follow-up to a conference held five years earlier, also in The Hague, on “Fundamental
rights in a pluralist society” during the Dutch Chairmanship of the Committee of Ministers of the Council of Europe.
The objective of the conference was to contribute to the development of human
rights policy approaches to better manage Europe’s increasing cultural diversity. To this
end, a group of experts within the Council of Europe (DH-DEV) was entrusted with the
task, in the light of the results of the conference, to explore various follow-up options
and to make appropriate proposals in this context.
In spring 2009 the DH-DEV prepared a Declaration for the Committee of Ministers
on human rights in culturally diverse societies, which was approved by the Steering
Committee for Human Rights (CDDH) and subsequently adopted by the Committee of
Ministers on 1 July 2009. The declaration is appended to this publication (see page 161).
I should like to express my deep appreciation to the authorities of the Netherlands
for co-organising and hosting the conference and for financing the publication of the
conference proceedings. Our thanks also go to all the people who helped to make the
conference a success and in particular the rapporteurs, moderators and speakers.
This publication reflects the wealth of ideas and experience presented and debated
at the conference. It should be recalled that, in addition, the Council of Europe has pub-
........ 9
FOREWORD
lished two practical manuals, one on hate speech and another on the wearing of religious symbols, both launched on the occasion of the conference.
The conference has shown that cultural diversity is a source of enrichment for Europe. To manage the challenge that these “different” identities pose for our societies
today, we must start from the universality of human rights, their enjoyment by all members of society without any discrimination, and that fundamental rights can never be
pushed aside in the name of management of cultural diversity. Quite the opposite, they
should be its basis.
10 . . . . . . .
OPENING SESSION
Mr Terry Davis
Secretary General of the Council of Europe
On diversity, hypocrisy and human rights
The Netherlands is a very appropriate place for discussions about diversity and human
rights. Since the 16th and 17th centuries, when radical free-thinkers and writers from
all over Europe found refuge in the Netherlands, Dutch society has been known
throughout Europe as especially tolerant. In recent years, this tolerance has been put to
the test. Terrorist attacks in European countries and the United States and reports
about forced marriages, so-called “honour crimes” and genital mutilation taking place
in the heart of Europe have sparked off heated debates about the place of religion and
in particular Islam in our secular societies. Several events in the Netherlands have been
emblematic, fuelling the discussion well beyond the borders of this country. I would
only recall the outrageous murder of Theo van Gogh in 2004 and the recent controversy
about the film produced by the Dutch politician Mr Geert Wilders.
This is the background against which the Council of Europe is organising the conference on human rights and diversity in The Hague on 12 November. On this occasion,
two manuals will be released – one about hate speech and the other one about religious
symbols.
The Council of Europe attitudes to both issues are based on the case law of the European Court of Human Rights. It makes a distinction between criticising a political idea
or a religion and targeting human beings because they are different, or inciting violence
or hatred against them.
The issue of freedom of speech versus hate speech goes to the heart of the debate
about the film by Mr Wilders and the controversial Danish cartoons. In both cases, freedom of expression was invoked to justify the dissemination of a clearly offensive message. I believe that there are two points which are clear and cannot be contested.
The first point is that there can never be any justification for violence in response to
any message, however offensive it may be.
The second point is that freedom of expression is an indispensable precondition for
democracy. Those who called for the cartoons or the film to be banned should have
known that any restrictions to freedom of expression must comply with the very specif-
. . . . . . . 13
OPENING SESSION
ic requirements set by the European Convention on Human Rights itself. And any restrictions cannot be applied arbitrarily, even with the best possible intentions.
But if we put the issue of a legal prohibition aside, we must also remember that the
Convention itself refers to responsibility in the exercise of the freedom of expression. In
fact Article 10 is the only article in the treaty which contains such a reference. Against
this background, we should not only ask whether the authors had the right to publish
offensive messages – which is for the courts to decide – but also whether this was the
right thing to do. And this, in my view, is open to debate.
I firmly believe that human rights are universal and should not be subordinated to
cultural or religious traditions or sensitivities, but I also believe that a deliberate insult
to an ethnic or religious community is neither the most appropriate nor the most effective way to make that point.
In the Council of Europe we reject the notion that human rights and multiculturalism are in conflict with each other. On the contrary, our 2008 White Paper on Intercultural Dialogue has as a starting point a full and unconditional respect for human rights
and democratic principles.
The fact is that our societies are not only multicultural, they are also increasingly polarised. We must do everything we can to reach across the gap and close it through dialogue, understanding and mutual respect. We must protect our values of democracy
and human rights against people who openly preach or even use violence against them,
but also speak out against those who hypocritically use these values as a flag of convenience for their own intolerance, prejudice and political objectives.
14 . . . . . . .
Ms Maud de Boer-Buquicchio
Deputy Secretary General of the Council of Europe
Minister, Excellencies, ladies and gentlemen,
This conference comes exactly five years – minus a week – after the conference on
“Fundamental rights in a pluralistic society”, which was held in The Hague during the
Netherlands’ Chairmanship of the Committee of Ministers and in which I had the
pleasure to participate. I said then that “for the Council of Europe, reconciling respect
for ‘different’ identities with fostering social cohesion can only succeed if it is based on
human rights. […] Such a rights-based approach to integration does not mean mutual
tolerance defined as mutual indifference. It means tolerance in a positive sense: willingness to meet and understand ‘the other’, to achieve mutual comprehension.” Today more
then ever I stand by this statement, but I also would like to take a step forward.
I firmly believe that our society will eventually benefit from this “mutual comprehension” when the difference is not simply accepted but considered to be an asset for us
all.
Since 2003, the world has moved on. The recent electoral campaign in the United
States of America has opposed two very different political projects and two visions of
our society. The American people have spoken and have chosen Barak Obama: a
symbol in many respects.
What about Europe?
Broadly speaking, everything we do and have done since the creation of the Council
of Europe in 1949 is directly or indirectly related to the promotion of human rights and
diversity. We see diversity not as a threat, but as a source of enrichment. Europe thrives
on its diversity. Karel Čapek, a great European from Prague, expressed it beautifully in
the following terms: “The Creator of Europe made her small and even split her up into
little parts, so that our hearts could find joy not in size but in plurality.” We want to preserve the differences between our nations and regions, the diversity of our languages,
cultures and mentalities, of all persons living in Europe, irrespective of whether they
have lived here for generations or have arrived more recently from other continents.
Our mandate is to defend and extend – across our 47 member states – the values of
freedom and human dignity for every individual, regardless of his or her nationality,
ethnic origin, cultural background, religious beliefs or other characteristics.
. . . . . . . 15
OPENING SESSION
Among the various Council of Europe activities dealing with diversity and social cohesion, let me single out three which are particularly relevant to the human rights issues
discussed here today: the work of the European Commission against Racism and Intolerance (ECRI), the work of the Advisory Committee on the Framework Convention for
the Protection of National Minorities, the Commissioner for Human Rights and our
youth campaign for diversity, human rights and participation. All these bodies, institutions and actions make a fundamental contribution to furthering the values on which
our Continent rest.
The Council of Europe has also produced two practical manuals on hate speech and
religious symbols, which will be launched at this Conference. They contain very practical suggestions on how to address these phenomena.
This conference follows immediately after the Lisbon Forum organised by our
“North South Centre” and the Alliance of Civilizations, which discussed the principle
of universality of human rights sixty years after the proclamation of the Universal Declaration of Human Rights. While the Lisbon Forum analysed diversity from a global
perspective, here we will be looking at diversity inside our European societies.
The place of this Conference is very appropriate, as it was in 2003. As I said then, this
Conference too “fits neatly into the long-standing tradition of the Dutch of being often
among the first in Europe to open a broad and frank debate in society on difficult, valueladen questions”.
During debates about immigration, integration and diversity, human rights are frequently invoked, by all sides of the political and religious spectrum. In principle, it is
good news that fundamental rights have once again become a “hot topic”. Human rights
are too important to be left only to experts and specialists. As our common value base,
they must be firmly anchored in society as a whole. Human Rights are crucial not only
in the relations between the State and the individual, but also in the relations between
individuals themselves.
Our conference should contribute to a better understanding of the interdependence
and indivisibility of human rights. One right may be protected through another, for example the respect for the special needs of persons belonging to ethnic or religious minorities in schools – in other words, the right not to be discriminated – will contribute
to the full enjoyment of the right to education. In some cases, it may be necessary to reconcile competing rights or to place restrictions on particular rights or freedoms. The
European Convention on Human Rights, as interpreted by the Strasbourg Court, provides ample examples for such a weighing of rights and interests which should guide national legislation and practice.
Let’s take the example of the debate about Wilders’ film Fitna.
Much has been said about the freedom of expression in this context, and as the
Deputy Secretary General of the Council of Europe, which is the guardian of the European Convention on Human Rights, I defend this right very strongly.
The European Court of Human Rights puts this very clearly in the famous OttoPreminger-Institut case, and I quote, “[…] whoever exercises the rights and freedoms
enshrined in the first paragraph of […] Article [10 of the European Convention on
Human Rights] undertakes ‘duties and responsibilities’. Amongst them – in the context
16 . . . . . . .
MS MAUD DE BOER-BUQUICCHIO
of religious opinions and beliefs – may legitimately be included an obligation to avoid
as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public
debate capable of furthering progress in human affairs”.
In this respect, I welcome the recent reform undertaken by the Dutch government
on the notion of blasphemy.
It is a fact that Europe is more and more a multicultural space and that multiculturalism must be properly managed. The starting point must be that human rights
are universal and therefore cannot be pushed aside in the name of cultural diversity, but
what the Council of Europe is trying to do is to develop an approach in which firm insistence on human rights and intercultural tolerance are not seen as mutually exclusive.
On the contrary.
For the Council of Europe, reconciling respect for different identities with fostering
social cohesion can only succeed if it is based on universally recognised human rights,
the rule of law and democratic principles. This is also the main message of the Council
of Europe’s Committee of Ministers’ “White Paper on Intercultural Dialogue”.
Our conference should contribute to the development of a human rights-based approach to integration and diversity management. Human rights apply to all people at all
times and in all places, to Muslims and Christians, Jews, agnostics, humanists and atheists. As standards for liberty, justice, equality and solidarity, they are the glue that bind
us and allow us to live together.
Our approach should be based on tolerance and respect for the right to be different
in the sense of Voltaire’s famous words, “I disapprove of what you say, but I will defend
to the death your right to say it.” Tolerance in this sense does not mean indifference,
simply putting up with “otherness”, but the willingness to actively meet and welcome it.
But a human rights-based approach to integration means no tolerance for activities
or practices that seek to undermine human rights or limit them excessively. Our
common European history has taught us that tolerance sounds its own death knell if it
does not protect itself from intolerance. In the words of Thomas Mann, “tolerance becomes a crime when applied to evil.”
There can be no understanding for intolerance or violence, whether perpetrated by
political extremists or in the name of religion. Cultural or religious traditions must
never be invoked to prevent individuals from exercising their fundamental rights. This
is particularly important when it comes to women’s and children’s rights. Practices
amounting to human rights abuses, such as forced marriages, so-called “honour
crimes” or genital mutilations, can never be justified by invoking culture, religion, tradition or custom. This is also crucial to keep in mind with regard to intolerance towards
lesbians, gays, bisexuals and transsexuals and notably their enjoyment of freedom of expression and freedom of association and assembly.
Taking an inclusive approach in respect of individuals belonging to all kinds of minority groups – be they national, ethnic, religious, linguistic or other – in considering
them as full components of our European societies implies that there is acceptance of
their specific characteristics by what is often called the “traditional” or “dominant” culture. In short, it implies less arrogance and more humility.
. . . . . . . 17
OPENING SESSION
On the other hand, we must not fall into the trap of viewing individuals only as representatives of particular groups. Modern societies are evolving towards plural identities. The same person can be a Dutch citizen, of Indonesian origin, a Muslim, a socialist,
a woman, a vegetarian, a tennis player, member of a local sports club, a heterosexual, a
believer in gay and lesbian rights, a loving mother, a cinema addict and an environmental activist. None of these associations can be taken to be the person’s only identity or
singular membership. Every human being must have a real choice to decide on the relative importance of his or her different associations and affiliations. It is this inherent
freedom that makes our diversity possible.
Ladies and gentlemen,
During the conference we shall hear about practical measures to accommodate for
diversity in order to ensure real and effective equality.
There can be no conference without words but there will be no meaningful conference if we do not move from words to action. Let us be specific and action-oriented in
our conclusions. I am confident that, under the able guidance of the president of the
Venice Commission, Mr Jan Helgesen, we will be able to identify elements for a human
rights-based strategy to integration and diversity management.
Building blocks for such a strategy can already be found in the judgments of the
European Court of Human Rights, the findings of our human rights monitoring bodies
and the reports and conclusions of our Commissioner for Human Rights and the Venice
Commission. We should bring these different threads together, confronting them with
the reality on the ground and experiences undergone in our various member states. All
this should permit us to come up with concrete proposals for follow-up action by the
Council of Europe. Action that makes our rights a reality, not theoretical and illusory,
but positive and effective for every woman and man in Europe.
Thank you very much for your attention.
18 . . . . . . .
Ms Guusje ter Horst
Minister of the Interior and Kingdom Relations of the Netherlands
Ladies and gentlemen,
Article 1 of the Dutch Constitution states that all persons in the Netherlands are
treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever is not permitted.
It sounds simple enough in theory but, as we all know, theory is often simpler than practice.
Let me offer an example. If you make it compulsory for pupils to attend mixed-sex
swimming lessons, are you encouraging gender equality and integration, or are you indirectly discriminating against religious minorities that wish to observe orthodox religious practices? The highest court in Switzerland – the Bundesgericht – recently ruled
in favour of the former. The case has now been taken to the European Court of Human
Rights in Strasbourg.
Today and tomorrow we will be discussing human rights in culturally diverse societies. There are plenty of good reasons for doing so. Increasingly, the consequence of exercising one’s fundamental rights is conflict between them. Conflict between freedom
of religion and freedom of expression, for example.
The question we face is: how can we safeguard social diversity while simultaneously
strengthening social cohesion? The answer relates directly to our pursuit of a safer society.
Five years ago we examined the same issues at the conference on Fundamental
Rights in a Pluralistic Society. At the time the Netherlands called on participants to
compare experiences and share best practices. The last five years have been dynamic
ones in this respect, especially in the Netherlands. For example, the murder of the filmmaker Theo van Gogh and the debate surrounding the controversial film, Fitna, by a
Dutch Member of Parliament both attracted international attention.
Other, less explosive issues also attracted a lot of attention. What should we do about
candidates for civil-service or teaching positions who, for religious reasons, refuse to
shake hands with someone of the opposite sex? How do we deal with pupils who return
to school after a holiday in clothing that covers the face? These incidents are not common, but they divide opinion in our society and attract the attention of politicians and
the media alike.
. . . . . . . 19
OPENING SESSION
Similar discussions are taking place in other European countries. The recurrent
theme is how to deal with the consequences of immigration and globalisation. There are
always tensions when new cultures settle in existing cultures. And expressions of confusion and uncertainty. And while we were aware of these issues five years ago, they are
now more pressing, more acute. Some see this as a positive sign, a sign that people from
other backgrounds now genuinely want to mix and be part of the culture in which they
have settled.
The question is, how should we tackle this confusion and uncertainty?
In tense times it is more important than ever to take a firm and common line on certain questions. Our guiding principle is unchanged: the recognition of human rights as
a common standard, and respect for these rights, is not up for discussion. The debate is
on where the boundaries lie when human rights conflict with each other, and whether
restrictions are necessary to protect public order and safety. In my opinion, it is crucial
that we look for practical solutions to practical problems.
Take, for example, the debate in the Netherlands on clothing that covers the face. It
is up to the legislator to determine a clear framework, which takes account of the Equal
Treatment Commission’s findings and individual court judgments. The Dutch government does not support a general ban on wearing this type of clothing in public. That
would be discriminatory and would go too far in limiting religious freedom. We do,
however, support such a ban in certain sectors. In schools, for example, where nonverbal interaction between teachers and pupils is essential to achieving high standards
of education.
Another example of a pragmatic approach is security, and the registration of ethnicity and country of origin. If you want to take preventive measures against various forms
of anti-social behaviour among young people, a neutral target-group analysis can be
useful. I believe that registering the ethnicity and country of origin of juvenile criminals
will bring us closer to a solution for it will allow us to directly address the organisations
that represent such groups. I believe that in this instance, the need for registration, and
the advantages it offers, take priority over personal privacy.
Local authorities are faced with countless examples of conflicting human rights on
a daily basis. I believe it is the government’s responsibility to offer municipalities a helping hand. In the Netherlands we provide funding to local anti-discrimination bureaus,
which deal with the public’s complaints about discrimination. As of next year, every
Dutch municipality will have its own bureau.
And there are other ways we can help. For example, many municipalities are faced
with questions relating to the separation of church and state: Can Muslims or Jews in
the Netherlands be buried according to the requirements of their faith? Can the government award grants to institutions founded on religious principles? Is it appropriate for
municipal authorities to initiate dialogue between Muslim, Christian, Jewish and other
religious organisations with a view to fostering religious tolerance?
We are keen to offer municipalities the support they need. Next year, together with
the Association of Netherlands Municipalities, I will issue guidelines concerning the
principle of the separation of church and state. The emphasis will be on freedom of re-
20 . . . . . . .
MS GUUSJE TER HORST
ligion and the principle of equality. The guidelines will include an accessible explanation of the legal framework and suggest possible solutions.
In the Netherlands we do not interpret this principle to mean that the government
may never concern itself with religious organisations or issues. In fact, I believe that
municipalities should be able to use churches and mosques as intermediaries with a
view to encouraging social participation among certain minority groups, as long as this
does not lead to any explicit interference in religious matters.
The core of the principle is that the state must take a neutral stance. The government
is obliged to create conditions in which a wide range of opinions and beliefs can be accommodated. This is only possible if the government limits its role to facilitating and
refrains from favouring one party because it deems a certain religion or belief to be
“correct”. There must be room for opposing voices.
I believe in a government that helps to resolve practical problems. So I also support
the Council of Europe’s decision to issue manuals on the wearing of religious symbols
in public areas, and on hate speech. These manuals will help national governments and
organisations to make decisions when fundamental rights are at stake.
Where will we be in five years’ time? We are all working for a society in which governments set clear limits and citizens shoulder their own responsibilities. We must not
lose sight of that last point. Research by the Social and Cultural Planning Office this
year showed that Dutch people feel that lack of respect and solidarity is the biggest
social problem we are currently facing.
Here the Dutch government would emphasise people’s personal responsibility to
treat each other with respect and to respect each other’s opinions. As a government you
cannot force people to do the right thing, but you can offer support and encouragement. This is why we will soon be issuing a Charter to responsible citizenship and setting up the Centre for Democracy and the Rule of Law.
The Dutch government wants to focus more attention on the importance of respect
for individual differences and the safety of lesbians, gays, bisexuals and transgenders
(LGBT) through dialogue and pursue an active role on the international stage.
Many of the issues we face are common issues. And equally common, at a time of
immigration and globalisation, is our desire for a balanced society. The Dutch essayist
Bas Heijne put it this way: “It is about creating a small, tenable world, while recognising
that the larger world cannot be ignored. It is a task with the power of an ideal.”
Well, I agree. And I say we should keep the debate on fundamental rights in a diverse
society both small and tenable. Let us be clear that human rights, the principle of equality, freedom of speech, freedom of religion and freedom of association are not up for
discussion. What we need to discuss are the boundaries between them and the questions they raise in the everyday world.
Over the last five years we have become accustomed to the idea that these questions
need answers. But we have not found them yet. So, over the next five years, it is vital
that we keep talking and acting, at both national and European level. Starting today.
Thank you.
. . . . . . . 21
CHALLENGES FACED
BY CULTURALLY DIVERSE SOCIETIES
IN EUROPE
Mr Thomas Hammarberg
Council of Europe Commissioner for Human Rights
We talk with pride about European values. The Council of Europe is, of course, based
on these values, not least democracy, human rights, and the rule of law. We believe that
these values are important not only in themselves but also that they will, when implemented, make our societies more cohesive, more harmonious. We do not see any contradiction between respect for human rights, on the one side, and diversity and cultural
diversity, on the other.
However, that assumption is now challenged and I have realised during my travels
that there is a problem when it comes to intolerance in many societies in Europe. People
are disrespected for whom they are. Extremists have managed to get fairly wide support
in elections in some countries on messages which are xenophobic, homophobic, antiRoma, anti-Semitic, Islamaphobic or plain racist.
The answer to such tendencies is not to compromise but to stand up for the human
rights values and to educate. It is really crucial that minorities be welcome in our European societies and that they can feel welcome.
This, in turn, doesn’t mean that for instance religion cannot be discussed. Free
debate is important though there are, of course, some limitations to the freedom of expression. We ought, by now, have found an approach to combine freedom of expression
and respect for religions and the sensitivities there. When the Danish cartoons were
discussed, I personally felt that their publication was unwise, unnecessary and even
provocative. But I did defend the right of the newspaper to publish them because there
is a need to distinguish between what is illegal and what is just stupid. Some problems
must be resolved by debate rather than by legislation.
It must also be possible to publish information or opinions which offend, shock, or
disturb. Hate speech is beyond that. By hate speech we mean statements which incite
to hatred, including religious hatred. Hate speech may lead to hate crimes and practically all European countries today have legislation to prevent such expressions which I
welcome.
Of course, drawing the line between statements which offend and shock, on one
hand, and which amount to hate speech in reality is not always clear. And that is why
the judgment of the Court in Strasbourg is very important when it comes to interpretation of the real meaning of freedom of expression in today’s society. I also think that this
. . . . . . . 25
CHALLENGES FACED BY CULTURALLY DIVERSE SOCIETIES IN EUROPE
problem should be discussed at conferences of this kind in order to fine-tune our
understanding about the human rights message in such situations. And when doing
that I believe that it is absolutely crucial to dialogue with the minorities themselves and
listen to their opinions.
26 . . . . . . .
Ms Corien Jonker
Chair of the Committee on Migration, Refugees and Population of the
Parliamentary Assembly
Minister, Secretary General, Human Rights Commissioner, ladies and gentlemen,
It is an honour to address this high-level Conference as Vice-President of the Parliamentary Assembly of the Council of Europe, as Chair of the Committee on Migration,
Refugees and Population and as a Dutch Parliamentarian.
Europe has become a melting pot of diversity. Within this diversity, there are over 64
million migrants in Europe, add to this the large number of national minorities across
Europe, and the pot is bubbling. The perspective for the future is rather one of more diversity than one of less diversity.
As a representation of all those societies, the Parliamentary Assembly of the Council
of Europe is also a melting pot. For me, this is one of the reasons why I love to be part
of it. In a way, members of parliament are a representation of the residents of their
countries. While I was writing this down I realised that this is true but at the same time
it is not.
True, because together politicians reflect Europe as a whole and form a diverse
microcosm.
Not true, because they do not reflect ordinary European citizens. Politicians are part
of an elite group, just like all present here. In a few of the member states of the Council
of Europe is, for example, equal (political) participation of (religious) minorities or
women a present day reality. This, for example, would be an area where we could greatly
improve.
Cultural diversity does not only mean that we ought to strive towards a society
where each person’s talents are being acknowledged or expressed and where one has,
on paper, just as many rights. It also means that individuals of different cultural backgrounds want to live with and next to each other.
Travelling through the melting pot of Europe is fascinating. The United Kingdom,
Scandinavia, the Balkans, the Mediterranean countries, the Caucasus, the Russian Federation, without any hesitation our cultural identity is (closely) united. At the same
time, about five weeks ago during a meeting in Moscow, I concluded that it probably
would be a good idea if all the participants were to follow an intercultural communication course. We, the participants, simply didn’t understand each other. Is this because
. . . . . . . 27
CHALLENGES FACED BY CULTURALLY DIVERSE SOCIETIES IN EUROPE
we didn’t want to understand each other or is this because we couldn’t understand each
other? For the moment I hold on to both possibilities!
Without understanding or respect for the motive of the other person and only viewing the world from ones own reality it is difficult to reconcile differences. Unfortunately
this is an ongoing human process we encounter every time. We lock ourselves up in our
moral ivory tower and judge, in addition to which it is easier to multiply the differences
instead of reconciling them. Sometimes we have to add to this factors, such as the feeling of superiority and power, which makes the situation even less charming.
I experience a separation within Europe based on different historical experiences,
painful historical experiences, bitterness that constantly leads towards looking backwards instead of looking forward. This in turn determines to a larger extent what we see
and what we can or will see.
In this context we have even created a God unto our own image and likeness. He was
what we made Him to be, with our human qualities and often, more or less explicitly,
with our own shortcomings and limitations.
I wish that differences could exist so that people are not being displaced or tread on
because they are, for example, a women, or because they are homosexual, handicapped
or from different nationalities, different religions, etc.
When I recently read a paragraph in the book of Roberto Assagioli, I immediately
had to think of this conference and the goals that we aim for. I read the analogy of the
relation that is between a drop of water and all the waters that exist on this planet. I
quote: “If a drop would have intelligence, would it determine that its nature would be
the same as all of the waters that exist on this planet; that is to say, the same chemical
composition, two atoms of hydrogen and one atom of oxygen, linked according to a specific pattern. All waters on this planet have the same chemical composition. Between
them there are countless differences: differences of place (oceans, lakes, rivers), of state
(liquid, solid and gas), of function (water can be part of plant life, animal life or human
organism) and of relations with other substances (solutions). If he would dispose of intelligence, then a small drop could not imagine anything of all these things, let alone
form an image. Nevertheless, it should however at least realise the fact that it has the
same chemical composition as the rest.”
People are intellectual creatures; so can we assume that our nature is actually the
same, that our chemical compilation is actually the same? And regardless of that it
seems easier to see the differences.
Back to the Council of Europe, the Organisation that stands for human rights. We
like to create frameworks in which to express our ideals, but we also come across bureaucratic and self-seeking actions such as fear or uncertainty. So the question is, in
which way can politics and society manage? I think the answer is by expressing the desire, to really wanting to reach the goal. We ought to set clear goals or intentions and we
need to consider those as valuable.
Let us ask ourselves the following questions:
‚ Do we think that a culturally diverse society is valuable enough?
‚ Are we prepared to work hard to reach this?
‚ Are we prepared to make sacrifices?
28 . . . . . . .
MS CORIEN JONKER
Ladies and gentlemen, I will conclude.
My answer to the question on the challenge of a culturally divers society is that it is
the will to succeed.
Looking around and seeing you all assembled here, I can not but presume that we
are all in favour of diversity. I therefore would like to invite you at the end of every day
to ask yourself what you did to realise this, the culturally diverse society.
Doing that would mean that at the end of this conference we can say that we have
come a step closer to the reality of a culturally diverse society.
Thank you very much.
. . . . . . . 29
Ms Ilze Brands-Kehris
Acting First Vice-President of the Advisory Committee on the
Framework Convention for the Protection of National Minorities
Although it is my great privilege to represent here the Advisory Committee of the
Framework Convention for the Protection of National Minorities, in view of the
breadth of the theme of today’s conference, I would like to start out by mentioning that
I will also address the issues not strictly or exclusively from a Framework Convention
perspective, where the mandate is in most articles limited to national minorities. Perspectives from the Framework Convention are nevertheless relevant also for a broader
concept of diversity, and lessons learned through the convention can in many cases be
applicable for other groups and culturally diverse societies in general.
Whose human rights?
The first issue to address is what we mean by “culturally diverse societies” and consequently whose human rights we are talking about. Although it is a broad sense of culture we apply when discussing diversity, it is rights of persons we are focusing on, not
cultures or cultural expressions as such. Cultural diversity could, of course, also include
social and identity-related factors which are not related to ethnicity, such as social origin, (dis)ability or sexual orientation, but for our purposes today it is those identity-related factors which in one way or another could be directly related to a person’s
identification with an ethnic or national group that are the focus of our attention. Apart
from the generic ethnic origin, these are, at a minimum, race, colour, national origin,
language, religion and association with a national minority. It is, of course, not by coincidence that these are factors broadly relating to culture that are listed in Article 14 of
the Convention for the Protection of Human Rights and Fundamental Freedoms. Additional factors, such as descent, as listed in the International Convention on the Elimination of All Forms of Racial Discrimination, can naturally also be assumed to be
included.
Although the human rights of each individual member of society are of equal concern, and the rights of persons belonging to the majority ethnicity and cultural identity
can also be seen through the spectrum of the cultural diversity factors, it is legitimate
30 . . . . . . .
MS ILZE BRANDS-KEHRIS
to identify as the most pertinent topic the respect for human rights of persons belonging to vulnerable groups in society, such a minorities. Identification of these groups of
persons is a highly contextual exercise, with national, regional and historical factors to
be taken into account, and the diversity of Europe itself needs to be kept in mind. The
common assumption that “we all know” whom we are talking about in Europe when
listing the main vulnerable groups, is quickly dispelled by a simple exercise of multiple
choice, in which we would be asked to match factors such as colour of skin, traditional
life style, religion (as belief and/or cultural identity), national origin (immigrants) and
linguistic and national minorities with regions like the East, North, West and South of
Europe. It is a challenge for all of us to remember the variations of diversity within Europe, and the “diversity of diversities,” in Amartya Sen’ s words – the increased complexity through the recognition of sub-groups within any one identified group, sub-groups
of persons – minorities within minorities – who may experience very particular human
rights concerns not shared by others. This complexity is even further increased by the
dynamic nature of diversity itself, which is perpetually changing. There is no such thing
as a still picture we can take of a situation and believe that we have now once and for all
identified the persons and groups who are most vulnerable and whose human rights
guarantees need particular vigilance.
Challenges in ensuring human rights for all
Turning then to the main challenges, these concern both the question of identifying the
relevant vulnerable persons and groups, as well as a set of substantive issues, which can
be singled out as challenges deserving of special attention in contemporary European
societies and which will be listed here, without any attempt to go deeper into their analysis.
Inclusiveness of human rights protection
If the approach argued above on the factors to be taken into account and the contextual
identification are taken on board, it follows that there should be an attempt made in
each of our societies, as well as in Europe at large to identify a baseline approach for the
human rights guarantees which ensures that it is inclusive of all persons and groups in
society. Vulnerable groups need to be identified and awareness of these raised, and a
particular effort made to include the most vulnerable groups, such as Roma and, in
some European societies, Muslims, Jews or visible minorities.
Nevertheless, apart from the larger or more visible minorities, a special challenge
and responsibility for authorities and stakeholders to identity other, lesser known vulnerable groups is essential for establishing an inclusive baseline. These would include,
for instance, numerically small groups, “invisible” minorities (such as the Irish were in
the United Kingdom a few years back), refugees and asylum seekers, immigrants of various backgrounds and, arguably increasingly important, linguistic minorities. The focus
should not only be on well-established or well-known minority groups, but we should
. . . . . . . 31
CHALLENGES FACED BY CULTURALLY DIVERSE SOCIETIES IN EUROPE
also consciously work to ensure that the groups most vulnerable to human rights abuses
are included in the scheme and policies of rights protection.
In this regard, it is unavoidable to mention also the issue of legal status of the individual, especially with recent developments within the EU as well as the broader Europe
that the Council of Europe represents. Although it is generally accepted that some differentiation of rights between persons depending on their legal status and relation to
the state is justifiable nevertheless a set of minimum human rights claims have to apply
equally to all. In the diverse and mobility-driven societies in which we live, we should
therefore also specifically focus on the human rights guarantees in theory and in practice of categories of persons living on European territory, such as non-citizens (be they
third country nationals or stateless, long-term dwellers or recently arrived) and irregular migrants or persons with “questionable” or unclear legal status. All too often, in the
efforts made at strengthening the respect for human rights while building the Fortress
that is Europe with borders with as little permeability as possible, the basic responsibility of ensuring human rights for all persons within the European territory is forgotten.
It is not only a responsibility to ensure the minimum rights to which all human beings
are entitled (as well as identifying what these are, beyond the most obvious ones of right
to life and freedom from torture, such as rights with regards to health, housing, education), but also responsibilities in the ensuring of freedom from hate speech and intolerance. The examples of case law at national level, where publicly enounced expressions
of xenophobia were held to be within the limits of permissible speech, with the argument that although the hate expressed was clearly virulent, the groups targeted were
“foreigners” and “immigrants” and therefore did not identity any specific ethnic group
illustrate all too well the challenges in ensuring this aspect of equal legal protection for
all.
Finally, and in keeping with the introductory remarks on diversity, a clear effort
when establishing the inclusive baseline of human rights protection needs to made in
order to identify particularly exposed sub-groups among minorities – groups for which
factors such as age, sex, disability, sexual orientation are taken into account in combination with the “cultural diversity” factors relating to ethnicity.
Human rights protection for all: addressing the implementation gap
Challenges remain at the very basis of the construction of human rights protection in
our diverse societies, and the proclamations of the indivisibility of human rights and the
holistic political, social, economic and cultural rights, as well as the oft-heard reaffirmation of integration of society as a two-way process, often seem more like hope-inspired
mantras than a reflection of reality, be it conceptual. The gap between rights principles
and legal norms is arguably decreasing over time, but the implementation gap remains
an urgent concern, as we hear reported from many sources, including from minority
representatives, who so often see their legally foreseen rights not respected in practice.
This implementation gap cannot be overcome without the participation of all members of society. The guarantee and promotion of full and effective participation by minorities is a key element of this, and here the Framework Convention and its Article 15
32 . . . . . . .
MS ILZE BRANDS-KEHRIS
can indeed serve as a source of useful insights applicable to the participation of various
minority groups, not only national minorities, in the economic, social and cultural life
of society and in public affairs. The Advisory Committee this year adopted a Commentary on Article 15, based on the experience accumulated over the years since 1999,
which covers institutions, mechanisms and policies for enhancing effective participation and includes a focus on access by minorities to decision-making processes, the
mechanisms established for participation, such as consultative bodies, with the acknowledgment that these have to meet certain requirements in order to contribute to
effective participation rather than window-dressing (such as clearly defined competences, representative composition and set procedures for regular work).
Another human rights challenge with particular relevance for a diverse society is the
achievement of full and effective equality, of which the non-negotiable minimum is the
prohibition of discrimination, as also included in the Framework Convention’s
Article 4, but relevant also to many more minority groups. There has clearly been
progress in many European countries concerning the legal framework of anti-discrimination in recent years – arguably the EU anti-discrimination directives 2000/43/EC
and 2000/78/EC have pushed this development ahead, with an effect also beyond the
present members in the EU, as we see similar developments or demands for such developments also in many other Council of Europe member states. The legislative developments have also triggered an evolution of the interpretation and understanding of
discrimination. Nevertheless, it is again in the implementation of the norms that we
find many states wanting. Apart from actively pursuing the sanctioning of individual
cases of discrimination, the need for studies of the actual situation of various vulnerable
groups as input into active anti-discrimination policy making is essential, which entails
the need for disaggregated data collection in fields such as employment, education,
health care and the provision of goods and services. The challenges in this area are
great, and include not only various obstacles to such data collection in some countries,
but not infrequently also a lack of will to acknowledge the existence of discrimination
beyond a few cases come to light through complaints or litigation, and a consequent
lack of interest in research of the actual situation.
Regarding participation, aspects such as equal access to political rights pose particular challenges for minority groups in a diverse society. Freedom of association, freedom of assembly and freedom of expression may be proclaimed as cornerstones of a
democratically functioning society, but in more Council of Europe member states than
we would casually think these fundamental freedoms remain fragile. It is by definition
minority views that are the ones whose expression needs protection, including those
that may be uncomfortable or even offensive to a majority, and this naturally includes
the expression of positions by minorities who may have “non-traditional” views of a situation. The link between minority protection and the ensuring of legitimate political
rights is often lost in the recent developments in Europe, when instead examples
abound where “freedom of expression” has been misused as an instrument for promoting intolerance against minorities. A key challenge to all of Europe’s societies is tackling
the false dichotomy between freedoms and equality. It is increasingly clear that while
there is essentially a consensus on the norms concerning the freedoms, especially free-
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CHALLENGES FACED BY CULTURALLY DIVERSE SOCIETIES IN EUROPE
dom of expression, then the interpretation of the content of these – especially at the national level – varies greatly, and perhaps increasingly. This is a serious challenge for
sustaining the wholeness of the system of protection of rights in diverse societies and
regions.
In the contemporary world it is impossible not to mention on the list of key challenges for human rights in diverse societies also those created by anti-terrorism policies –
violations of the right to private life and privacy and civil liberties are concerns for all
members of contemporary European societies, and the shameful retreat from the absolute prohibition of torture continue to shock the human rights community. Nevertheless, minorities face, in addition, specific problems stemming from the hardened
approach to security, such as ethnic profiling, in which no claim for equal treatment can
be made, or some limitations relating to freedom of religion. In addition, there is a risk
of misuse by some authorities of the proportionality test, who on occasion claim that
there are sufficiently serious security or safety reasons for a specific measure, but without providing any opportunity for watchdogs or independent analysts to verify the
claims, based on the fact that the evidence constitutes classified information. Such challenges are exceedingly difficult to counter, and accountability for violations of human
rights, which would include explicit tests of the measure’s legitimacy, necessity and proportionality, is lacking. One of the key, and perhaps most difficult challenges is thus to
bring back security-related legislating and policy-making into a human rights framework.
Finally, in all these challenges and many others, an overarching challenge is to ensure
that authorities assume their positive obligations in the protection of human rights, including minority rights. These obligations entail more than reacting to a situation of
violations, if such is uncovered, and indeed means that there is a responsibility and duty
of authorities to pro-actively find out the facts of a situation, to establish baseline studies, to gather information and data, to analyse and investigate when need be, in order to
establish credible and evidence-based human rights policies. National action plans on
human rights, while seriously elaborated or followed up over time only by a few states,
provide an excellent opportunity to frame such positive obligations, by constructing
systematic and comprehensive plans and programmes, which allow for prioritising
amongst challenges and more efficient allocation of limited resources. Such plans
should without fail also mainstream a multi-layered, dynamic conception of diversity,
so that the human rights challenges of our diverse societies can more successfully and
responsibly be met.
34 . . . . . . .
Mr Heiner Bielefeldt
Director of the German Human Rights Institute
Introduction
One of the most disturbing recent experiences in the field of human rights politics is
that right-wing intellectuals in Europe have rhetorically taken up parts of the human
rights agenda using such a selective approach for human rights as a powerful weapon
against the recognition of cultural diversity in general and Muslim minorities in particular.1 The paradox as well as the cunning of their strategy is that they invoke liberal
achievements, especially gender equality and respect for sexual minorities, with an antiliberal intention, i.e. with the purpose of excluding cultural and religious minorities
from full membership in society. This rhetorical pattern is often successful because
there are obvious tensions between the liberating spirit of modern human rights and
traditional patriarchal norms as they still seem to prevail in some milieus among cultural minorities. At the same time, however, it is clear that turning human rights into an
argument for excluding some groups of persons, due to their cultural or religious backgrounds, actually means to abuse human rights and deny their universalistic and inclusive aspirations.
In this presentation I argue for an inclusive understanding of human rights that
opens up the space for an explicit recognition of cultural diversity. Stressing the inclusive
spirit of human rights does not mean to turn a blind eye to conflicts – sometimes harsh
conflicts – between the liberal human rights and authoritarian elements as they obviously exist in some cultural traditions. However, in openly addressing such conflicts,
human rights require sensitivity and precise analysis in order to avoid stereotyping and
sweeping stigmatisation.
In keeping with international and regional standards, I define human rights as the
combination of three basic features: – i.e. (1) the universalistic claim, based on respect
for the inherent dignity of every human being, (2) the liberating essence epitomised in
rights of freedom and equality, and (3) the connection to juridical (or quasi-juridical)
implementation mechanisms.2
1. Cf. Geert Mak, Gedoemd tot kwetsbaarheid (Amsterdam/Antwerpen: Atlas, 2005).
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CHALLENGES FACED BY CULTURALLY DIVERSE SOCIETIES IN EUROPE
There may be compelling reasons to assume that the concept of human rights, thus
defined, historically first developed in Western Europe and North America. However,
acknowledging this historical fact does not mean that human rights are essentially connected to the particular horizon of what is usually termed “Western culture”. Simply
equating human rights with Western culture, unfortunately, is a widespread misunderstanding that has caused enormous damage to the credibility of the human rights concept. Taken to its extremes, it means that the universalistic validity claims underlying
human rights may get a flavour of cultural imperialism or cultural assimilation.
Rather than representing a particular “cultural heritage” of the West, human rights
are an unfinished learning project to which people from different cultural origins can actively contribute. What historically triggered this learning projects were experiences of
structural injustice, such as civil wars, systematic abuses of state authority, social insecurity and mass impoverishment, European colonialism, threats to human dignity by
modern data processing or genetic engineering etc.3 More than anything else it was the
shock of the holocaust and other atrocities committed by the Nazis that historically
forged a global consensus on the necessity of international as well as European human
rights protection after World War II.4 Thus, in responding to ever new experiences of
structural injustice, human rights are a common project of all human beings to shape societal coexistence – nationally, regionally and globally – such that abuses of political,
economic and cultural power are prohibited and, if possible, effectively prevented by
clearly stated universalistic norms.
Although human rights go beyond a mere smallest common denominator of the various norms that currently happen to exist in different cultures, their underlying principles – dignity, justice, freedom and equality – can resonate positively within different
cultural or religious traditions thereby permeating and perhaps also transforming those
traditions. In other words, for all the critical potential that the concept of enforceable
rights of every individual human being doubtless entails, especially vis-à-vis authoritarian components in various cultural traditions, there is a perspective that a cross-cultural
common “ownership” on the idea of human rights can and should develop.5
2. Cf. Heiner Bielefeldt, Menschenrechte in der Einwanderungsgesellschaft. Plädoyer für einen
aufgeklärten Multikulturalismus (Bielefeld: Transcript Publishing House, 2007), pp. 25ff.
3. Cf. Reza Afshari, “An Essay on Islamic Cultural Relativism in the Discourse of Human
Rights”, in: Human Rights Quarterly 16 (1994), pp. 235-276.
4. Cf. Johannes Morsink, The Universal Declaration of Human Rights. Origins, Drafting &
Intent (Philadelphia: The University of Pennsylvania Press, 1999).
5. Cf. Heiner Bielefeldt, “Western” versus “Islamic” Human Rights Conceptions? A Critique of
Cultural Essentialism in the Discussion on Human Rights, in: Political Theory 28 (2000),
pp. 90-121. In order not to sound naïve, I would like to stress that I am not making an
optimistic prognosis that such an intercultural ownership on human rights will actually
come about in the near future. There is no denying that the relationship between European
mainstream societies and cultural or religious minorities is currently precarious and
sometimes poised by mutual mistrust, a situation which can easily be exploited by rightwing populist parties or by advocates of a reactionary and defensive “identity politics”
among minorities. Still, it is our duty to work on behalf of an intercultural ownership on
human rights. This in turn entails the requirement to abstain from unilateral “copyright
claims” on human rights which are problematic also from a historical perspective.
36 . . . . . . .
MR HEINER BIELEFELDT
Human rights as a normative framework for a
culturally diverse society
How can human rights, understood in this way, contribute to shaping a culturally diverse society? The answer to this question is complex. In the following sections, I focus
on three aspects: (1) Human rights demand the recognition of cultural diversity in the
broadest sense. (2) At the same time, they define the limits of what is acceptable in a liberal multicultural society. (3) And finally, they require a precise and sensitive handling
of “hard issues” in order to overcome stereotypes and cultural essentialism.
Recognition of cultural diversity
The liberating spirit underlying human rights, first of all, implies opening up the space
for the recognition of diversity, in terms of religions and beliefs, cultural traditions and
customs, or personal and communitarian ways of life. The most relevant human rights
norms in this regard are freedom of religion and belief, the right to privacy, the right to
personal liberty, and the specific rights of cultural minorities. Thus, in a society bound
by human rights norms people have the rights to manifest their religious or non-religious convictions in private as well as in public, to lead their lives – as individuals and
in community with others – according to their beliefs, and to maintain their religious,
cultural and linguistic traditions and pass them on to following generations. Such a society bound by human rights will necessarily be a culturally diverse society. In this sense
there is an inherently positive connection between human rights and cultural diversity.6
However, from the point of human rights, the “subject” of respect and protection is
not the various cultural or religious identities as such but, rather, the freedom of human
beings to develop, maintain, change or even abandon their cultural or religious identities. It is important to bear in mind that, strictly speaking, the only holders of human
rights are human beings – as individuals and in freely chosen community with others.
Only indirectly do cultural traditions and religious practices move into the focus of
human rights, i.e. by being mediated through rights of freedom as they are exercised by
human beings. In other words, the starting point for understanding the role of cultural
diversity from a human rights perspective must always be every person’s equal claim to
freedom, whereas diversity, in a way, can be termed a second order phenomenon.7 It is
not a purpose in itself but, rather, has the status of a necessary effect of the respect which
human beings can claim for their convictions, orientations and ways of life.
6. For practical reasons, I do not distinguish in the following between cultural diversity and
religious or linguistic diversity. I generally use the term “culture” in the broadest sense such
that it also includes religious or linguistic traditions. This does not mean downplaying the
specific protection that freedom of religion and belief has in the human rights framework.
7. For example, the demand to recognise the Islamic headscarf would be at least imprecisely
formulated. The point in this case is rather the freedom of Muslim women to wear the
headscarf in public – or not to wear it.
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CHALLENGES FACED BY CULTURALLY DIVERSE SOCIETIES IN EUROPE
This clarification is important, because it helps to draw the line between a liberal
multiculturalism based on human rights and romantic concepts by which “cultures” as
such are appreciated and protected, due to their own inherent values. Indeed, human
rights have little in common with a cultural romanticism that seeks to insulate existing
(or imagined) cultural identities from the supposedly levelling tendencies of modernity.8 Rather, the liberating aspect of human rights always also includes a culture-critical
potential – which, by the way, affects majority and minority cultures alike (see for example how the recognition of freedom of religion by the Catholic Church or the gradual
acceptance of gender equality in mainstream society required far reaching cultural
transformation processes).
Last but not least, it should be borne in mind that human rights also protect minorities within the minorities, religious dissidents in majority as well as in minority religions, the various sorts of converts or sectarians, cultural traditionalists or liberal
reformers as well as people with multiple or ambiguous cultural identities. Thus, cultural diversity as it is facilitated by human rights will never amount to coexisting closed
cultural or religious groups with internally homogeneous and undisputed identities. Instead, it will be a multifaceted and complex diversity with open and shifting boundaries,
often disquieting not only for majority society but also for the various cultural or religious minorities.
Defining specific limits of acceptance
While opening up the space for cultural diversity, human rights at the same time set
limits to multicultural tolerance. This is the second basic aspect. In cases of direct conflict with cultural or religious traditions and their concomitant norms, human rights
norms claim a practical priority.9 A clear example is female genital mutilation which obviously constitutes an extreme violation of the rights of physical and psychological integrity and thus can never be condoned. Another clear example is forced marriages
which similarly obviously violate the right to the free choice of one’s spouse and often
also amount to serious infringements of the rights to health and education. Even if the
preservation of such practices were to be propagated in the name of culture or religion
(which actually is not often the case!), they would still be unacceptable.
Pointing to the limits of multicultural tolerance is a popular topic likely to trigger applause in parts of society. Thus, in order to avoid misunderstandings, it is very important to emphasise that drawing normative limits from the priority of human rights does
not amount to propagating a general cultural assimilation of minorities into mainstream society.10 The practical priority that human rights norms claim in cases of direct
8. Cf. for example the various books on this subject by Alain de Benoist, the leading
intellectual of the “Nouvelle Droite” in France.
9. This priority is a “practical” one in that it is not based on the assumption that human rights
are in toto superior to cultural or religious traditions.
10. In the German context, such assimilation has been often demanded under the somewhat
indistinct concept of “Leitkultur” (“lead culture”). It was coined by Bassam Tibi, Europa
ohne Identität? Leitkultur oder Wertebeliebigkeit (Munich: Pieper, 1998).
38 . . . . . . .
MR HEINER BIELEFELDT
conflict with some traditional norms of cultural minorities is not the same thing as a
purported general superiority of European mainstream culture to which minorities
supposedly should be subjected. Complacent assertions that European mainstream culture constitutes the final manifestation of the history of human rights would be mere
hypocrisy, given the continued existence of racist stereotypes, the treatment of refugees
at the common European borders and other very serious human rights challenges.
Moreover, it is important that the definition of normative limits of tolerance be carried out with diligence and precision. The various questions that come up in this context each deserve specific answers and a specific handling. This is not the case, for
instance if the necessary fight against forced marriages is simply lumped together with
calls for prohibiting the Islamic headscarf in public life as it sometimes happens.11 In
order to be in compliance with human rights, the normative limits of tolerance must
always be precise as well as specific in exactly addressing the issue under discussion.
This brings me to the third point.
Overcoming stereotypes and essentialism
The requirement of diligence and precision has also an empirical dimension, because
respect for human rights demands that especially when it comes to publicly addressing
unacceptable forms of authoritarianism within minority cultures we have to avoid
sweeping, stigmatising stereotypes. Currently, this is particularly important with regard
to Islam, because Islamophobic stereotypes obviously exist in many European societies.12 The same is true for prejudices against the Roma population.
“Hard issues” like genital mutilation or forced marriages, which doubtless are unacceptable violations of human rights that needs to be addressed publicly and politically,
require a precise analysis of root-causes, phenomena and backgrounds, precision is a
requirement of fairness. In many cases this will yield insights into the socio-economic
dimension of the problems which is not less important than the cultural dimension. For
instance, forced marriages do not only result from extreme patriarchal norms within
some milieus of cultural minorities. In addition to such cultural root-causes whose relevance cannot be denied, an important aspect is often also the lack of successful participation of immigrant in the recipient societies. Resorting to extremely conservative
patriarchal norms can, under some circumstances, become an element of “image management” for the male members of migrant families who feel that exercising control
over their daughter might compensate, at least within the narrow confines of their cultural milieu, their general lack of success in mainstream society.13 Saying this, of course,
11. An example is the book by Necla Kelek, Die fremde Braut. Ein Bericht aus dem Inneren des
türkischen Lebens in Deutschland (Cologne: Kiepenheuer & Witsch, 2005).
12. Cf. European Monitoring Centre on Racism and Xenophobia (EUMC), Muslims in the
European Union. Discrimination and Islamophobia (Vienna: EUMC, 2006).
13. Cf. Sherene H. Razack, “Imperilled Muslim women, dangerous Muslim men and civilised
Europeans: Legal and social responses to forced marriages”, in Feminist Legal Studies 12
(2004), pp. 129-174.
. . . . . . . 39
CHALLENGES FACED BY CULTURALLY DIVERSE SOCIETIES IN EUROPE
is no excuse and does not mean shifting the blame from minorities simply to majority
society.
Finally, a precise analysis is also needed to avoid the pitfalls of cultural essentialism.
This is not a merely academic requirement. The problem with cultural essentialism is
that by depicting “cultures” as more or less homogeneous and timeless entities, it tends
to ignore the potential for change within many existing cultural or religious milieus.14
Therefore, cultural essentialism typically goes hand in hand with the assumption that
the only promising path of liberation from the authoritarianism of particular cultural
milieus lays in the full assimilation into the mainstream culture. Confronting people
with the alleged dilemma that they have to make a clear choice between human rights
or adherence to their cultural upbringing, however, would go against the spirit of
human rights, because it deprives people of the right to develop their own ways of life.
It is certainly possible that persons stemming from cultural minorities see their way
towards an autonomous life in breaking away from their religious or cultural milieus.
Full assimilation may be a freely chosen option for some. Others, however, may decide
to make their way within a traditional cultural or religious frame of reference, perhaps
at the same time trying to expand the scope of freedom by personal arrangements or by
participation in cultural or religious reform movements. Others again might take a
pragmatic route by trying to more or less ignore questions of religious orientation and
cultural background.
An important feature of modern pluralism, at any rate, is that people can find different ways towards the goal of a personal and communitarian freedom. The liberal spirit
underlying human rights thus relates not only to the goal of an emancipated life, but
also encompasses the freedom for people to find different ways to achieve that goal –
ways which all deserve recognition and encouragement. This is also an important element of modern diversity.
Conclusion
Human rights do not provide a blueprint for solving, let alone generally avoiding conflicts in culturally pluralistic societies. To a certain degree conflicts are a normal phenomenon in modern society. Operating as an instrument to “empower” people, human
rights can under some conditions even increase (rather than decrease) the potential for
conflict.
What is important, at any rate, is that conflicts be carried out in a spirit of mutual
respect. Human rights epitomise, on an institutional level, the respect which is equally
due to every human being as a bearer of human dignity. This basic respect is spelled out
in a number of specific rights, including cultural liberties in the broadest sense of the
14. Cf. Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and
the Special Rapporteur on contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, Doudou Diène, Implementation of General Assembly
Resolution 60/251 of 15 March 2006 entitled “Human Rights Council”, A/HRC/2/1., p. 8:
“From a human rights perspective, members of religions or communities of belief should
therefore not be viewed as parts of homogeneous entities.”
40 . . . . . . .
MR HEINER BIELEFELDT
word. Thus there is an inherent positive connection between human rights and the recognition of cultural diversity.
At the same time, the principles underlying human rights – human dignity, freedom,
non-discrimination – also have a bearing when it comes to defining the limits of legitimate pluralism. It is important to realise that pointing of the limits of multicultural tolerance, from the priority of human rights norms, has nothing to do with the
propagation of an alleged superiority of European mainstream culture.
Finally, when addressing “hard issues”, like forced marriages, we have to avoid all
forms of cultural essentialism, because they hold individual human beings hostage to
purportedly closed and unchangeable cultural identities. Human rights present a principled challenge to such anti-liberal ideologies, by recognising and protecting the equal
dignity and freedom of every human being which is the normative cornerstone in our
complicated, diverse, modern societies.
. . . . . . . 41
INTEGRATION AND RESPECT
FOR DIVERSITY
ENSURING EQUAL ENJOYMENT OF HUMAN RIGHTS
AND PRESERVING SOCIAL COHESION
Ms Eva Smith-Asmussen
Chairperson of the European Commission against Racism and
Intolerance
The task of the European Commission against Racism and Intolerance (ECRI) is to
combat racism, racial discrimination, xenophobia, antisemitism and intolerance in Europe.
I will therefore above all deal with issues of integration and social cohesion through
the anti-racist perspective and from an angle of non-discrimination.
These two ideas, integration and the fight against racism, represent the two different
sides of the same coin.
Successful integration is impossible without the development of effective strategies
to combat racism and racial discrimination. However, these very strategies for combating racism are bound to fail if they are not accompanied by policies designed to promote
integration and inclusion.
These are two ideas which are destined to succeed (or not) together – they cannot
be dissociated from each other.
However, it is not sufficient to simply state that we are “in favour of integration”. We
must also clarify what we mean.
According to ECRI:
‚ Integration is a two-way process, one of mutual recognition between the majority
population and minority groups
‚ It is a process which should allow minority groups to be an integral part of society
‚ It is a process which should be clearly distinguished from assimilation: integration
does not mean erasing differences
ECRI recommends the adoption of integration measures for all minorities, be it immigrants and persons of immigrant origin, refugees and asylum seekers, national or
ethnic minorities, Roma and religious minorities. The approach adopted should be
non-discriminatory, which means that it should not deal with the situation of one group
while neglecting or harming the position of other groups. The integration policy put in
place should be global, and encompass all aspects of integration. The authorities should
consult concerned actors on integration measures to be taken and ensure the follow-up
of these measures.
. . . . . . . 45
INTEGRATION AND RESPECT FOR DIVERSITY
As mentioned above, integration is a two-way process and integration measures can
be directed towards society in general as well as towards minorities in particular. I
would like to briefly mention four of these measures in particular.
Firstly, the acquisition of legal status in the country of residence should be facilitated.
In order to become properly integrated it is necessary to enjoy the prospect of a longerterm future and a degree of legal certainty regarding one’s situation. Stability also presupposes that family reunification is provided for, so that one can envisage staying in
the country with some serenity. This also presupposes facilitation of the acquisition of
nationality, in particular through naturalisation. ECRI believes that people are most
likely to become integrated if they obtain the nationality of the country in which they
are living.
Secondly, the participation of minority groups in public life should be strengthened.
This means not only their participation in political life (and I have in mind notably the
general principle of the right of foreigners resident in the country for a long time to vote
in local elections), but also their access to public sector employment.
Thirdly, and most importantly, equal opportunities must be fostered, notably in key
fields such as access to education and access to employment. I will not develop at length
these particular issues which touch on equality and are at the heart of ECRI’s countryspecific recommendations and General Policy Recommendations for all member states
of the Council of Europe. However, I would like to underline that in the field of education, it is very important to have measures to combat segregation at school. As far as
employment is concerned, it should be recalled that the realisation of true equality can
require that persons be treated differently and that positive measures can be envisaged
in this context.
A challenge for the future: are we heading towards an “obligation to integrate”?
A new trend is emerging.
Until now, integration measures were seen as enabling everyone to fully participate
in society, measures fully respecting everyone’s fundamental rights. Today, we are witnessing a move away from a “need for integration” that has to be met, or a “right to integrate” that needs to be secured, towards a notion of “duty to integrate” incumbent on
members of minority groups, or even a “(Statutory) obligation to integrate” matched
with penalties. Tests and other exams are put in place as pre-requisite conditions to obtaining rights (such as the right to residence or citizenship). ECRI is following this trend
very closely, because these measures raise a number of questions in terms of their conformity with non-discrimination standards. Without calling into question the overall
aim of achieving an integrated society – which ECRI fully supports – attention should
be paid to the fact that the instruments used to achieve this aim (such as tests, assessments, contracts, etc) are not counter-productive and above all do not leave room for
abuse.
And finally, is it not once one knows and feels that one’s fundamental rights are respected that one can become deeply integrated into a given society?
It is obvious for everyone here today that when we talk about integration, we should
perceive society as a whole, and analyse it globally.
46 . . . . . . .
MS EVA SMITH-ASMUSSEN
I should like to say at this point that if there is anything that has complicated integration in these last few years instead of making it easier, it is the tone of public debate
on integration which has developed to different degrees in our different countries.
What should I say on this subject, except that discourse on and around integration
should not be a pretext for conveying racist stereotypes of minorities or to stigmatise
them, for example by burdening them with the full responsibility for a so-called “failure
to integrate”.
The best integration measures in the world, the most valuable measures and equality
policies will have little or no effect if higher up, from the leadership of the country, contradictory messages are conveyed. The public discourse of certain persons (including
sometimes political discourse and the media) can ruin all the efforts and measures
taken to increase equality in our countries if it is allowed to convey racist or xenophobic
elements.
Finally this is also why we above all need courageous and effective political leadership.
. . . . . . . 47
Ms Işil Karakaş
Judge at the European Court of Human Rights
The European Convention on Human Rights and
respect for diversity
Introduction
The Statute of the Council of Europe proclaims the signatory states’ “devotion to the
spiritual and moral values which are the common heritage of their peoples” and their
belief that, “for the maintenance and further realisation of these ideals and in the interests of economic and social progress, … there is a need of a closer unity between all likeminded countries of Europe”. And the European Convention on Human Rights refers,
in its preamble, to European states’ “common understanding and observance of human
rights” and their “common heritage of political traditions and ideals”.
European human rights law has essentially been generated through the case-law of
the European Court of Human Rights within a dichotomy featuring two opposing sides
of human rights protection: on one side, the individual with their right to be different,
which is the foundation and very essence of human rights and, on the other side, this
common mindset set out to ensure the application of Europe’s common standards for
effective human rights protection.
The European Court of Human Rights has forged a body of case-law founded on
principles of pluralism, tolerance and openness, which are the hallmarks of democratic
society (judgment in the case of Young, James, Webster v. the United Kingdom,
13 August 1981). In its judgments, the Court seeks to implement the requirement of
pluralism and individuals’ right to diversity in a multicultural society without relinquishing the spirit and common heritage of Europe. It has established the principles of
European public order, while preserving human dignity in a democratic society. Quite
simply, it has sought to reconcile universality and diversity.
Even though the Court has used the term “multicultural society” only once (Sander
v. the United Kingdom, 9 May 2000: “in today’s multicultural European societies, the
eradication of racism has become a common priority goal for all Contracting States”,
paragraph 23), it must consequently uphold an individuals’ right to be different accord-
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MS IŞIL KARAKAŞ
ing to the concept of democratic pluralism because the Convention is “a living instrument which must be interpreted in the light of present-day conditions” and it is there to
secure rights that are “practical and effective” rather than “theoretical and illusory”.
Accordingly, in the multicultural democratic societies of today, the State must respect cultural identities and also foster their expression and self-fulfilment. The Court
has held that respect for these minorities “is a condition sine qua non for a democratic
society” (Gorzelik and others v. Poland, 17 February 2004).
The right to respect for diversity is encountered above all in the area of freedom of
expression, freedom of religion, freedom of assembly and association, respect for private and family life and the right to education.
The key framework for the exercise of this right is to be found in the freedom of expression which is a condition sine qua non for participation in intercultural dialogue.
Thus the judgment in the Handyside v. the United Kingdom case (7 December 1976) is
still of paramount importance in this respect, in that it highlights the protection of ideas
that “offend, shock or disturb”; as a condition for pluralism, tolerance and open-mindedness characterising a democratic society where “a balance must be achieved which
ensures the fair and proper treatment of minorities and avoids any abuse of a dominant
position” (Young, James and Webster v. the United Kingdom, 13 August 1981,
paragraph 63).
The right to freedom of religion:
As far back as in the Kokkinakis v. Greece judgment (25 May 1993), the Court declared
that “freedom of thought, conscience and religion is one of the foundations of a democratic society… it is … one of the most vital elements that go to make up the identity of
believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned” and it also entails choices of whether or not to
follow a religion and to practise it or not.
This judgment is thus for Article 9 of the Convention concerning the freedom of
thought, conscience and religion what the Handyside case (see above) is for Article 10
relating to the freedom of expression, with its reference to pluralism (paragraph 31), not
forgetting the possibility of restrictions on this freedom in order to reconcile the interests of the various groups in question and ensure that everyone’s beliefs are respected
(paragraph 33). Article 9 does not protect every act motivated or inspired by a religion
or belief (Kalaç, 1 July 1997, paragraph 27). The role of the State is to ensure that competing groups tolerate each other (Serif v. Greece, 14 December 1999).
In the decision in the case of Dahlab v. Switzerland (15 February 2001) the Court,
considering the prohibition of the wearing of a headscarf by a primary school teacher,
held that this prohibition was legitimate in a democratic society as it sought to ensure
the school’s denominational neutrality and also prevented interference with the religious beliefs of her pupils (who were young children).
Also of importance here is the judgment in the case of Leyla Şahin v. Turkey
(10 November 2005), which provides a very clear example of the doctrine of states being
allowed a “wide” margin of appreciation.
. . . . . . . 49
INTEGRATION AND RESPECT FOR DIVERSITY
Paragraph 109 refers to the diversity of the approaches taken by national authorities
to regulating the wearing of religious symbols in educational institutions. It is not possible to discern throughout Europe a uniform conception of the significance of religion
in society (Otto Preminger v. Austria, 1994), and the meaning or impact of the public
expression of a religious belief will differ according to time and context (see Dahlab v.
Switzerland). Rules in this sphere will consequently vary from one country to another
according to national traditions and the requirements imposed by the need to protect
the rights and freedoms of others and to maintain public order (Leyla Şahin, paragraph
109).
This being said, “this margin of appreciation goes hand in hand with a European
supervision … The Court’s task is to determine whether the measures taken at national
level were justified in principle and proportionate”. In this particular case, relating specifically to Turkey, the Court attaches special importance to the circumstances specific
to the State and the society concerned.
Respect for privacy and family life
Where this article is concerned, it is more a question of conserving a lifestyle as a cultural group. In the judgment in the case of Chapman v. United Kingdom (18 January
2001), the issue was the refusal to allow the Gypsy applicant to station caravans on her
land. Her claim was for respect for her home as well as her private and family life as a
Gypsy with a traditional lifestyle of living in mobile homes which allow travelling. In
that judgment, the Court observed a certain consensus among Council of Europe States
recognising the special needs of minorities and an obligation to protect their security,
identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community
(paragraph 93), but was not persuaded, however, that the consensus was sufficiently
concrete for it to derive any guidance. Despite the undoubted evolution in regard to
protection of minorities, the Court was not convinced that Article 8 can be interpreted
as implying for States such a far-reaching positive obligation of general social policy (see
paragraph 98).
Right to education
The judgment in the case of D.H. and others v. the Czech Republic (13 December 2007)
concerns both equal opportunities in the area of education and indirect discrimination.
The applicants (18) were of Roma origin and claimed to have received, without objective and reasonable justification, treatment that was less favourable than that given
to non-Roma in a comparable situation (they had been placed in special schools and
considered this to be indirect discrimination). They supplied statistical data in this respect (based on the information provided by head teachers) indicating that over half the
pupils placed in special schools in that town were Roma.
According to reports submitted under the Framework Convention for the protection of national minorities, the authorities admitted that in some special schools Roma
50 . . . . . . .
MS IŞIL KARAKAŞ
pupils made up between 80% and 90% of the total number of pupils and large numbers
of Roma children were referred to those schools. Similarly, a report by ECRI (European
Commission against Racism and Intolerance) pointed out that Roma children were
“vastly over-represented” in special schools. This evidence was sufficient to give rise to
a presumption of indirect discrimination. The burden of proof must therefore shift to
the Government, which must show that the difference in the impact of the legislation
was the result of objective factors unrelated to ethnic origin (see paragraphs 190-195 of
the judgment). It is true that the schooling of Roma children presents some difficulties,
but these children had been placed in schools whose curriculum was inferior to those
of mainstream classes. That difference in treatment was not based on any objective and
reasonable justification. Consequently, there was a violation of Article 14 read in conjunction with article 2 of Protocol No. 1.
No difference in treatment based exclusively or to a decisive extent on a person’s
ethnic origin can be objectively justified in a contemporary democratic society built on
the principles of pluralism and respect for different cultures (Timishev v. Russia,
13 December 2005, paragraph 58).
In the case of Folgerø and others v. Norway (29 June 2007) the Court considered the
question of the teaching of religion of a Christian orientation dispensed in schools. The
Convention enjoins the State to respect parents’ convictions, be they religious or philosophical, throughout the entire state education programme. The State must take care
that information or knowledge included in the curriculum is conveyed in an objective,
critical and pluralistic manner and it is forbidden to pursue an aim of indoctrination
(paragraph 84 h + i). Accordingly, refusal to grant the applicant parents full exemption
from these classes gives rise to a violation of this provision.
On similar lines, in the case of Hasan and Eylem Zengin v. Turkey (9 October 2007),
the Court examined the authorities’ refusal to exempt the pupil from religious culture
classes (a compulsory subject in primary and secondary education establishments
based mainly on the teaching of Sunni Islam, and the applicants were adherents of Alevism, another branch of Islam). The Court stated that the instruction provided in this
subject in its present form cannot be considered to meet the criteria of objectivity and
pluralism (see paragraph 70).
Freedom of association: participation in public life
Effective participation in political life is a sine qua non for democratic society, and this
entails the freedom to found political parties and associations based on minority identities. It may generally be stated that asserting a minority consciousness does not constitute relevant grounds for prohibiting such associations (Bekir-Ousta v. Greece,
11 October 2007, paragraph 36).
In this manner, the Court has already found that the dissolution of the United Communist Party of Turkey by the Constitutional Court was a violation of article 11 (United
Communist Party of Turkey and others v. Turkey, 30 January 1998). The Court noted
that although that party’s programme refers to the Kurdish “people” and “nation” and
Kurdish “citizens”, it neither describes them as a “minority” nor makes any claim for
. . . . . . . 51
INTEGRATION AND RESPECT FOR DIVERSITY
them to enjoy special treatment or rights, still less a right to secede from the rest of the
Turkish population (paragraph 56).
This is because “one of the principal characteristics of democracy [is] the possibility
it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From
that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the state’s population and to
take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned” (paragraph 57).
In this respect, “it was of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that called into question the way a
State was currently organised, provided that they did not harm democracy itself” (Socialist Party and others v. Turkey, 25 May 1998; also Freedom and Democracy Party
(ÖZDEP), 8 December 1999).
The key element in the Court’s assessment is the means deployed to achieve this,
which must in all cases be democratic and exclude any use of violence, and the change
proposed must be compatible with fundamental democratic principles.
The Refah Partisi and others v. Turkey judgment (13 February 2003) emphasises this
aspect, holding that Shariah law is incompatible with the Convention and defining the
limits within which political organisations can continue to enjoy the protection of the
Convention while conducting their activities, namely by using legal and democratic
means in compliance with the rules of democracy.
With regard to associations whose aim is to promote a minority culture, the Court
held that “territorial integrity, national security and public order were not threatened by
the activities of an association whose aim was to promote a region’s culture, even supposing that it also aimed partly to promote the culture of a minority; the existence of
minorities and different cultures in a country was a historical fact that a “democratic society” had to tolerate and even protect and support according to the principles of international law” (Sidiropoulos and others v. Greece, 10 July 1998; Emin and others v. Greece,
27 March 2008).
Conclusion
The Court’s case-law does not expressly refer to the concept of “intercultural dialogue”
within the meaning of the Council of Europe’s “White paper on intercultural dialogue”
(an open and respectful exchange of views between individuals, groups with different
ethnic, cultural, religious and linguistic backgrounds).
But, as I have attempted to demonstrate with this handful of examples, the Court
touches upon the core of this concept in its judgments and decisions. “Democracy does
not simply mean that the views of a majority must always prevail: a balance must be
achieved which ensures the fair and proper treatment of minorities and avoids any
abuse of a dominant position” (Folgerø, see above, paragraph 84 (f ), Valsamis v. Greece,
18 December 1996). This is referring to a multicultural democratic society.
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MS IŞIL KARAKAŞ
Today, for the Council of Europe’s 47 member states and 800 million Europeans, the
Convention is a real component of European identity. For questions where the majority
clashes with the minority, the Court’s task is not always an easy one. The introduction
of common European standards goes hand in hand with recognition of and respect for
cultural diversity, for a better level of human rights protection.
Because in a democratic society “diversity is not perceived as a threat but as a source
of enrichment” (Timishev v. Russia, 13 December 2005, paragraph 56).
The individual and universal have to be fitted together and not pitted against each
other.
. . . . . . . 53
Mr Donald H. Oliver
Senator for Nova Scotia, Canada
Integration and respect for diversity: A Canadian
perspective
Introduction
The vital issues of diversity, integration and human rights have shaped Canadian public
policy and the identity of Canadians for decades. As such, the Canadian experience provides valuable lessons to other western countries now just beginning to grapple with
these same issues.
In fact, Canada can rightly lay claim to being one of the world’s first post-modern
societies. Well before the advent of globalisation, the rise of the information age and the
looming world-wide talent crunch, Canada welcomed peoples from all corners of the
globe. In our early years as a nation, immigration helped to secure our sovereignty in
Canada’s western frontier. Economically, it was essential to harvesting our natural resources. It later contributed to the building of our manufacturing, service and technology sectors. And today, with the aging of the baby-boomer generation and low fertility
rates, it has become more critical to Canada’s continued prosperity than ever before.
As you know, the same is now true for most other western nations. For example, immigrants now account for two-thirds of the population growth in the 30 member countries of the OECD. But whereas the issues of diversity and integration are relatively new
challenges for other nations, Canada has faced these challenges throughout its history.
In this article, I will first explain Canada’s historical context and the major policy and
legislative innovations we pioneered early on to promote diversity and encourage social
cohesion.
Second, I will take a look at where Canada is today – describing our nation’s current
demographic profile and examining its major implications. In this context, I will also illustrate our successes and point to areas where we still have a lot of work to do.
Third, I will outline the business case for diversity, demonstrating the major advantages that diversity presents to countries. I will underscore why embracing diversity is
now – and will continue to be – imperative to the prosperity of any nation.
54 . . . . . . .
MR DONALD H. OLIVER
My message is that Canada is not perfect, nor will our country ever be. But we have
learned a great deal about diversity, cultivating acceptance, and the journey to social cohesion. To date, the most valuable lesson of our experience is that ensuring equality, fostering fairness and cultivating respect for different cultures are absolutely critical to
building a better, stronger and more prosperous country.
Now and in the future, our biggest challenge – and that of all western nations – is to
actively demonstrate strong, committed leadership to these same goals.
The past – Canada’s achievements
Let’s begin by taking a look at Canada’s achievements in advancing diversity, combating
discrimination and protecting human rights. Fundamentally, there are two important
reasons for why Canada chose diversity. The first reason, as I outlined earlier, is economic. With its 32 million citizens, Canada remains under-populated. To effectively do
business with other countries, especially our largest trading partner, the United States,
immigration and openness to diversity has long been an economic necessity.
The second reason is political. Canada was created by two great founding nations,
the British and the French. This accommodation of two cultures, two languages and two
religions raised the possibility of accommodating additional cultures, languages and religions.
In other words, multiculturalism was born through biculturalism. Canada’s constitution and its major institutions had to accommodate both French and English peoples.
And although biculturalism did not necessarily promote diversity, it predisposed Canadians to be more accepting of other cultures.
Multiculturalism became an official policy in Canada in the 1970s. Its objectives
were two-fold: to assist groups to preserve their cultural identity and to help them to
fully participate in Canadian society. In the interest of national unity, multiculturalism
also sought to promote the exchange of ideas and experiences among cultural groups.
Despite its admirable intent, official multiculturalism was strongly criticised by both
ethnic and mainstream thought leaders. It was considered divisive because it emphasised what was different, not the values that were specifically Canadian. Consequently,
successive governments reduced multicultural programme funding and merged these
activities with those of citizenship, Canadian identity and race relations.
Nevertheless, the federal and the provincial governments did take other important
measures to underscore the growing diversity of the Canadian people. For example, the
Broadcasting Act was amended in 1968 to require our public broadcasting corporation
to reflect “the multicultural and multiracial nature of Canada”.1
In addition, the curricula of public schools in most provinces have been revised to
highlight the contributions of minorities to Canadian history and culture. In more
recent years, special care has also been taken to ensure that more visible minorities are
appointed to important roles. The last two appointees to the role of Governor General,
1. Belonging? Diversity, Recognition and Shared Citizenship in Canada: Edited by Keith
Banting, Thomas J. Courchene and F. Leslie Seidle, Institute for Research on Public Policy,
February 2007
. . . . . . . 55
INTEGRATION AND RESPECT FOR DIVERSITY
the Head of State in Canada, were visible minority women who came to Canada as children. And several of the Lieutenant Governors of our provinces are or have been visible
minorities.
Overall, however, Canada has been more successful in protecting individual and employment rights than it has been on the official multiculturalism file. Most of these policies are designed along guidelines provided by three important statutes: the Canadian
Charter of Rights and Freedoms, the Canadian Human Rights Act and the Employment
Equity Act.
The Charter of Rights and Freedoms, enacted in 1982 as part of Canada’s new Constitution Act, provides the basic fundamental principle from which everything else follows. It stipulates that:
Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
The Canadian Human Rights Act of 1985 goes further. It prohibits discriminatory
practices against a person, based on race, ethnicity, religion or sex. These include refusing or limiting employment opportunities as well as harassing people on the basis of
discrimination.
The main purpose of both the Charter of Rights and Freedoms and the Canadian
Human Rights Act is to protect individuals against discrimination.
The third major statute, the Employment Equity Act of 1995, has a different purpose.
It is designed to promote diversity and to eliminate systemic discrimination in the
workplace. It also serves to correct the under-representation of four major target
groups: women, members of visible minorities, Aboriginal persons, and people with
disabilities. I believe this Act remains one of Canada’s most important advancements in
building a diverse and inclusive society. Let’s face it. Employment is the key. More and
more, in our societies obsessed with economic performance, an individual’s contribution to society is measured by work.
It’s especially vital that visible minorities be given the same opportunities as others
to contribute to society through their work. If no one knows what they can do, no employer will want to take the risk. If you don’t force employers to hire visible minorities,
they will simply not do it. This is why affirmative action plans are a necessary condition
to full integration. The Canadian Employment Equity Act, which applies to most employers in the private and public sectors, is critical because it promotes affirmative
action plans.
56 . . . . . . .
MR DONALD H. OLIVER
The present – opportunities and challenges
The foresight in enacting these legislative innovations thirty years ago can readily be
seen, especially since Canada has emerged as one of the world’s most ethnically diverse
countries.
For example, the results of the 2006 Census, released by Statistics Canada just last
April, show that more than 200 different ethnic groups now call Canada home and that
more than 200 languages are now spoken in Canada. The Census further revealed that
83.9% of the immigrants who arrived in Canada between 2001 and 2006 were born in
regions other than Europe – a dramatic departure from the immigration patterns of just
three decades ago.
Even more telling, more than five million Canadians now make up Canada’s visible
minority population, representing 16.2% of the total population in Canada. And the rate
of growth for the visible minority population between 2001 and 2006 was 27.2% – five
times faster than the 5.4% increase for the population as a whole.
If current immigration trends continue, Canada’s visible minority population will
continue to grow much more quickly than the non-visible minority population. According to population projections, members of visible minority groups could account for
roughly one-fifth of the total population by 2017.
The impact of this growing diversity on Canada’s social cohesiveness has been quite
beneficial in several respects. For instance, according to a wide-ranging Canadian
Values Study, diversity has emerged as “a bona fide, embraced Canadian value.”2 In this
nationwide survey, diversity was cited more than any factor as the characteristic that
makes Canada unique – way ahead of other characteristics such universal health care,
the weather, natural resources and even hockey. In other words, diversity has come to
define Canada for many Canadians.
Furthermore, there is little evidence in Canada of entrenched racial concentration in
poor ghettoes that is apparent in many other countries, indicating that people of different races mix and mingle relatively freely in Canada. And some Canadian researchers
have observed that the “thinner” sense of Canadian culture resulting from accommodations among the historical communities of French Canada and Aboriginal people “may
actually have benefits in a multicultural era, making it easier for new Canadians to feel
comfortable here.”3
However, challenges remain. As you will learn tomorrow from Gerard Bouchard, the
co-chair of the Quebec Consultation Commission on Accommodation Practices, a very
heated debate and a great deal of controversy emerged recently in Quebec about diversity, multiculturalism and immigration. The Premier of Quebec appointed this Commission in response to the “media-fanned flames of an accommodation crisis”4 that
began in March 2006.
2. The Canadian Values Studies: A Joint Project of National Post, The Dominion Institute,
Innovative Research Group, September 2005
3. Belonging? Diversity, Recognition and Shared Citizenship in Canada: Edited by Keith
Banting, Thomas J. Courchene and F. Leslie Seidle, Institute for Research on Public Policy,
February 2007
. . . . . . . 57
INTEGRATION AND RESPECT FOR DIVERSITY
At this time, the Supreme Court of Canada ruled in favour of Gurbaj Singh Multani,
a Sikh teenager from LaSalle, Quebec, who wanted to keep wearing his kirpan to school.
Other controversies followed, involving orthodox Sikhs, Hasidic Jews and Muslim
women, mostly over issues of clothing they believe is central to their religion.
In January 2007, the crisis came to a head when the village council of a small Quebec
community (Hérouxville) published a “code of life”, which advised foreigners that public
stoning, burning and genital mutilation of women were not allowed.
These racial clashes, however, are not limited to Quebec. Consider these results
published by the Institute for Research on Public Policy in Canada: “Overall, a third of
racial minorities report having experienced discrimination, a rate that varies from 28%
of South Asians to 45% of Blacks. More troubling is the evidence that the sense of discrimination is higher among immigrants who have been in the country longer and
among the children of immigrants.”5
A summary of the evidence from the Ontario justice system is equally disturbing. It
shows that “police stop Blacks twice as often as Whites; Whites are less likely to be detained before trial than Blacks, and Blacks are denied bail more often and convicted
more often (than Whites).”6
What is more, the economic integration of minorities is widely seen as a very serious
issue in Canada. For example, Canadian immigration policy gives greater weight to educational qualifications. As a result, many recent immigrants to Canada have more
years of education on average than native-born Canadians. Nevertheless, a recent study
shows that only 40 percent of skilled immigrants are working in the occupation or profession for which they are trained. In fact, many immigrants with university degrees are
working in jobs that typically require high school or less.7
To help newcomers to adjust to Canada and to better surmount these barriers, Canada’s federal government cut the “Right of Permanent Residence Fee” in half. It amended the Citizenship Act to facilitate the granting of citizenship for children adopted
overseas by Canadian parents. The government also provided more than $300 million
in additional settlement funding over two years. As well, it earmarked funding to address the assessment and recognition of foreign credentials in consultation with provinces and territories.
Overall, however, despite our laudatory human rights and employment equity accomplishments in the past and our ongoing efforts to remain a destination of choice for
new immigrants, Canada still has some work to do.
4. Building the Future A Time for Reconciliation Report, Gerard Bouchard and Charles Taylor,
Consultation Commission on Accommodation Practices, Government of Quebec, 2008
5. Racial Inequality, Social Cohesion and Policy Issues in Canada, Jeffrey G. Reitz and Rupa
Banerjee, Institute for Research on Public Policy, February 2007.
6. Belonging? Diversity, Recognition and Shared Citizenship in Canada: Edited by Keith
Banting, Thomas J. Courchene and F. Leslie Seidle, Institute for Research on Public Policy,
February 2007.
7. Racial Inequality, Social Cohesion and Policy Issues in Canada, Jeffrey G. Reitz and Rupa
Banerjee, Institute for Research on Public Policy, February 2007.
58 . . . . . . .
MR DONALD H. OLIVER
As Bouchard and Taylor partly conclude, we need to move on – to turn the diversity
debate in a more positive direction. I agree. I also believe that we need to embrace diversity as a much-needed agent of constructive change in our society. It offers bright
promise to the countries who take advantage of its many benefits.
The future – the business case for diversity
Let’s look at what that promise could mean for countries in the future.
I spearheaded a comprehensive study at the Conference Board of Canada,8 which
proves the business case for diversity, within individual organisations and within societies as a whole. Allow me to summarise some of its findings in the context of nations.
First, diverse and inclusive societies attract the best talent. Economist Richard Florida of the University of Toronto postulates that smart, creative people want to live and
work in places and organisations that are technologically advanced. They also want the
opportunity to learn from other skilled and educated people.
But, above all, these creative people seek tolerance. A feeling of acceptance is important to them – very important. They look for places to live that are diverse and inclusive.
Countries, Professor Florida believes, are going to have stop thinking of immigration as
a gate-keeping function and start thinking about it as a talent attraction function, necessary for economic growth.
Second, diversity enables a country’s companies and its governments to reach out
more effectively to other countries. Most visible minorities in Canada and in other
western nations are foreign born. As such, they provide compelling business opportunities, enabling companies to access foreign markets through their knowledge of and
connections to other countries. Likewise, they can help policy makers and diplomats to
better understand the cultures and values of other countries, smoothing the way to
more productive, mutually beneficial relationships among nations.
Third, diversity enhances the global reputation of a country. The value of a superior
reputation may be difficult to quantify, but it is a precious asset nonetheless. And once
that reputation is compromised, it is very difficult to retrieve. Consider what happened
in South Africa in the 1970s. In protest of apartheid, much of the world boycotted South
African products, refused to visit the country, and declined their diplomatic exchanges.
But apartheid continued.
Then in the 1980s, individual and organisational stockholders started asking their
brokers and bankers if any of their money was invested in South Africa. If it was, they
demanded that it be withdrawn. Soon, the trickle of divestment became a flood. And by
1991, shortly before Nelson Mandela’s release from jail, there was $625 billion in global
investment pools not open to the South African regime. When asked whether the investment boycott had played a role in ending apartheid, Mandela replied: “Oh, there is
no doubt.”
Fourth, diversity has an overwhelmingly positive impact on national culture. Tyler
Cowen, an Austrian economist at George Mason University, undertook the ambitious
8. Making a Visible Difference: The Contribution of Visible Minorities to Canadian Economic
Growth, The Conference Board of Canada, 2004.
. . . . . . . 59
INTEGRATION AND RESPECT FOR DIVERSITY
project to show how international trade enriches cultural expression.9 He gathered evidence from the Renaissance 400 years ago to modern-day rap music. He discovered
that as artists obtain knowledge and materials from the rest of the world, they develop
richer and more diverse art forms. And although trade may weaken geographicallybased cultures, it still enriches and multiplies cultural expression within most societies.
Finally, as our experience in Canada demonstrates, diversity can enhance education.
It stimulates the exchange of ideas and perspectives among scholars and researchers. It
also fosters a vigorous sense of tolerance, especially among the young. Most young
people in Canada interact with classmates from a wide variety of cultures and backgrounds. They know first-hand that many peoples from a diversity of origins invariably
share the same anxieties and hopes for the future. They seem to understand that what
divides us is not as important as what we share in common.
The advantages of diversity to nations are clear. Tolerant, diverse societies attract
and keep talented, highly skilled people. They are better able to forge and sustain mutually-beneficial relationships with other countries. They build superior reputations on
the world stage. Their culture and their research are enriched. And their young people
are ready, able and willing to interact with a diversity of peoples. These advantages
translate into positive societal accomplishment – the calibre of accomplishment that
binds people together. In the years to come, these societies will be the most prosperous.
Conclusion
To sum up, long before many countries even considered the possibilities, Canada was
at the vanguard of multiculturalism, human rights and employment equity policies and
legislation. Our country has now emerged as arguably the most culturally diverse in the
world. And our diversity has become a bona fide Canadian value. It’s part of the Canadian identity – the glue that binds us as a society.
But problems persist. Debates about multiculturalism and accommodation continue
to crop up. Research shows that visible minorities continue to experience discrimination. The statistics reveal that the dream of a better life and brighter career prospects
continues to elude many immigrants to Canada, especially those of colour.
Moving forward, Canada – indeed all western nations – must embrace the business
case for diversity. We must move beyond the promotion of diversity as simply a nice or
politically correct thing to do. Instead, we must advance diversity as smart thing to do
– in terms of cultural enrichment, social cohesion and economic prosperity.
This requires committed leadership. In fact, according to the Conference Board,
committed leadership is the single, most important factor in building more inclusive
and diverse societies.
Leaders, at all levels and within all social strata, must develop realistic plans for advancing visible minorities. They must move toward aggressive “make-it-happen” strategies. They must be prepared to become champions for diversity. This level of personal
9. Creative Destruction: How Globalization is Changing the World’s Culture, Princeton
University Press, 2002.
60 . . . . . . .
MR DONALD H. OLIVER
commitment and involvement is absolutely critical because the example of leaders
speaks volumes. Sadly, in most western nations, this example is sorely lacking.
Canada is not an exception. As I peruse the lists of corporate directors and members
of the board at major Canadian corporations, I am hard pressed to find diversity. The
same is true within most departments of the federal public service. Despite the fact that
Canada has one of the most diverse workforces in the world, most of our leaders are
white, Anglo-Saxon men. That’s why I continue to push for greater visible minority representation at the executive levels within the federal public service. It’s why I continue
to point out the dismal record of Canadian corporations in hiring and promoting visible
minorities to positions of real power and authority.
In the global competition for talent, countries that are diverse and inclusive will have
a competitive edge. But strong, committed leadership is absolutely critical to securing
that edge. It’s up to leaders to demonstrate – once and for all – that the opportunities
to advance, to make a meaningful difference, to deliver on the full promise of diversity
are truly available to all people of colour. As Ghandi said, “We must be the change we
wish to see in the world.”
. . . . . . . 61
Ms Esther Maurer
Member of the Congress of Local and Regional Authorities’ Committee
on Social Cohesion, Rapporteur on Migration Issues
Chairperson, ladies and gentlemen,
Over and above all laws and other legal texts, human rights are actually very concrete, even though we often talk about them in abstract and theoretical terms. And the
achievement of human rights, the actual guaranteeing of human rights and the evidence
of their existence form part of daily life at local and regional level, in our towns and villages. Of course, it is usually at national level that the key decisions on migration law are
taken. However, it is at local level that we live together, not at national level. It is at local
level that all our actions as regards integration are decisive for the quality of our community, our neighbourhood and our desire for integration or segregation.
We cannot decide whether or not we want to live with the people who come to our
countries seeking asylum, a new life and a new future. But we can decide how we want
to live together. And that is both an opportunity and a duty. Above all, it is an opportunity and a duty for us as local and regional authorities responsible for the quality of life
of the entire population – in other words, both nationals and migrants.
Often it is a matter of escaping from a vicious circle based on widespread prejudices
against everything that is foreign or, rather, unknown, which sometimes, of course, contain a few grains of truth but should nevertheless be seen from a different angle. And
that can be achieved through in-depth analysis of the facts and figures that ultimately
brings us back to what really matters, namely human rights.
Let us take the example of domestic violence. It so happens that 65% of cases of domestic violence in Switzerland involve a violent husband or partner of foreign origin,
which, incidentally, is far higher than the percentage of foreigners resident in the country. That always leads the parties of the far right to claim that foreigners or, rather, foreign men are much more violent than the Swiss and that most of them are therefore
criminals. If, however – without playing down the tragic dimensions of this particular
crime – we do not just stop at these percentage figures but actually analyse the circumstances and the settings in which domestic violence develops and recurs most frequently, it can easily be seen that this is true:
‚ when people’s employment situation is unstable,
‚ when their economic situation is poor and lacks prospects,
62 . . . . . . .
MS ESTHER MAURER
‚ when they have been uprooted from their own environments and
‚ when they live in overcrowded housing.
And we know that these circumstances apply more frequently in migrant communities than among people who have always lived in our countries or at least have done so
for a long time. It is therefore clear that it is not a matter of a kind of brutality that is
typical of foreign men but, rather, of an accumulation of shortcomings in terms of what
could be called “social justice” or even “human rights”. Having a home, properly paid
employment, the right to education or training and a degree of economic independence
which allows not just survival but also integration into a social network – those are the
best means of preventing domestic violence and hence the suffering and humiliation of
thousands of women (and some men as well) in our countries.
While we are aware that human rights are not a subject to be dealt with in relation
to other countries in other continents unless there is a dimension that affects us directly
every day and everywhere, we can find appropriate solutions to the issues of our co-existence and quality of life in the areas for which we are responsible as towns, villages or
regions. Living human rights means establishing and guaranteeing a minimum of social
justice for everyone. That is what gives our society and our communities stability.
I have cited the example of domestic violence, but I could give you others without
having to mention crimes. However, in all the examples which I could add, you will find
the same factors: the right to education or training, the right to a home, the right to
properly paid employment, the right to live free of fear, torture, violence or humiliation,
in other words, the right of all individuals to physical and psychological integrity. And
there can be no stability in a community if its members do not have access to fundamental human rights. Unless a basic minimum of social justice can be achieved by everybody, a society will be confronted with social segregation, a lack of solidarity,
imbalances and insecurity. And I strongly believe that every society can be judged by
the way in which it treats its weakest members. That is the main starting point.
To prevent any misunderstandings, I am not saying this solely in relation to the migrants or other foreigners in our midst. On the contrary: openness and tolerance towards migrants are all the stronger when people feel that their own position is balanced
and secure. Social justice and human rights act as “stabilisers” both for nationals and for
migrants, both for the well-off and for those struggling to make ends meet and both for
the young and for the old – in other words, for all members of society regardless of their
personal situation. Guaranteeing human rights and social justice is therefore the fundamental basis for bringing about real solidarity that strengthens our societies.
However, I should like once again to refer explicitly to the situation of migrants and
minorities:
In the recent past, the responsibility for cultural co-existence lay almost exclusively
with migrants and minorities rather than with the “host” communities. That clearly
limited intercultural exchanges and in-depth knowledge of “other” groups, triggering
anxieties based on cultural diversity and differences. That was not very effective in
terms of integration policies. Nowadays, we are therefore trying to make a fresh start
with what can be called the “intercultural method” or “interculturalism”, which was, in
. . . . . . . 63
INTEGRATION AND RESPECT FOR DIVERSITY
fact, already known and accepted in communities at local level. This means recognising
that diversity is an opportunity and an asset rather than a threat or a handicap.
Once that is also recognised by the political authorities and a majority of the population, cultural exchanges become easier and more straightforward and are, in fact, increasingly initiated by politicians themselves. And once again, I would underline that
such cultural exchanges will not have a positive impact unless they take place in a stable
and balanced environment where human rights and social justice are not just theoretical terms. Interculturalism can never be a poor compromise because it is the very basis
of a democratic society. How can we explain to our children that we must respect all
human beings if we want to be respected ourselves if that only applies to part of society
and other groups are left out? By what right can one group demand respect and dignity
if that right does not also apply to other groups? Social cohesion can only be achieved
through equal opportunities and dignity for all members of society regardless of their
ethnic or cultural origins.
In January 2008, the Council of Europe and the European Commission launched a
programme to demonstrate the effectiveness of intercultural solutions in towns and
cities and to promote their further development. The purpose of the programme on
“Intercultural cities – governance and strategies for diverse communities” is to pool experiences in this area so as to repeat the good results with all towns and cities interested.
In an intercultural city, it is accepted that diversity is the norm and that it is therefore
only natural for everybody to make concessions.
Intercultural cities do not just accept diversity as an inevitable fact. On the contrary,
they derive benefit from it as a source of innovation, creativity and growth. Intercultural
cities invest in education, the welfare system, housing, employment, culture, public
spaces and political consciousness as a means of helping to shape the environment and
society. A commitment is made so that dialogue becomes both possible and intense and
so that intercultural exchanges take on an everyday dimension. Intercultural cities do
not prevent conflict – but they are capable of keeping it within democratic confines and
resolving it in the common interest. They develop suitable civil or legal solutions for
strengthening mutual respect and understanding and offer encouragement to everyone
who makes a commitment to this vision of future towns and cities where all individuals
have the same opportunities, rights, human rights and social justice.
That is what I call human rights.
Thank you for your attention.
64 . . . . . . .
WORKSHOP I
FREEDOM OF RELIGION AND THE ROLE OF THE
STATE – MORE THAN SETTING AN IMPARTIAL AND
NEUTRAL FRAMEWORK?
Mr Malcolm D. Evans
Professor of Public International Law, Dean of the Faculty of Social
Sciences and Law, University of Bristol
In recent times there has been a subtle, but significant, shift in the perception of the role
of the State in relation to the freedom of religion and belief, the implications of which
remain to be fully understood. Article 9 of the European Convention presents a “classic”
individual right but whilst this works well when an individual is challenging the manner
in which the State has acted in relation to their personal enjoyment of a particular
aspect of that right, it works less well in situations in which what is really at stake is the
approach of the State either to religion of belief generally or to a particular form of religion or belief. In recent times the Court has increasingly been called on to consider
cases of this nature and its response has been to call on states to act in a neutral fashion
as between religions and as between religious and non-religious forms of belief. The
duty to remain neutral and impartial has now been re-iterated on many occasions and
it is clear that any evidence that the State has failed to act in such a fashion in its dealings
with religious bodies will require justification under Article 9 (2) if it is not to amount
to a breach of Article 9.
This duty has a number of facets, perhaps the most important being that “the State’s
duty of neutrality and impartiality is incompatible with any power on the State’s part to
assess the legitimacy of religious beliefs or the ways in which they are expressed”. This
has many practical implications, but to highlight just one as an example, it underscores
the need to permit individuals to determine whether the wearing or display of any particular item of clothing is or is not of religious significance to them, and the State would
be in breach of its duty of neutrality and impartiality if it imposed its own interpretation
of its significance at the expense of that of the believer.
Being neutral and impartial in matters of religion is one thing, but in the case of
Leyla Şahin v. Turkey, the Court went further, emphasising the State’s responsibilities as
the neutral and impartial organiser of the exercise of religions, faiths and beliefs. This
casts the State in a rather different position again. Rather than being required to ensure
that it remains neutral and impartial in its dealings with religions and with believers, its
role becomes one of ensuring that religious life within the State is neutral and impartial,
which is a subtle, but important difference.
. . . . . . . 67
WORKSHOP I
This can play out in a number of different ways. A fairly minimalist approach would
be to see the role of the State as being a “facilitator” of organisational and individual religious freedom, meaning that it would be sufficient if the State ensured that all believers were able to enjoy the individual rights which flowed directly from Article 9.
However, this approach has been largely superseded – or at least, supplemented – by
an alternative model which emphasises the responsibility of the State to ensure the realisation of all convention rights, and particularly emphasises the need for the freedom
of religion and belief to be seen and understood in the broader context of democratic
society.
In the case of Kokkinakis v. Greece the Court said that:
As enshrined in Article 9, freedom of thought, conscience and religion is one of
the foundations of a “democratic society” within the meaning of the Convention.
It is, in its religious dimension, one of the most vital elements that go to make up
the identity of believers and their conception of life, but it is also a precious asset
for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable
from a democratic society, which has been dearly won over the centuries, depends
on it.
In this key statement, the Court acknowledges the significance of the freedom of
thought, conscience and religion to the individual and the role it plays in their sense of
personal identity. It also recognised how important it is to ensure that there is space for
this to be recognised within a democratic society. Rather than see the protection of the
freedom of religion or belief as something which is to be enjoyed by individuals and by
belief communities at the expense of the common good, it sees the enjoyment of the
freedom of religion and belief by individuals and belief communities as the realisation
of a common good. At the same time, it underlines the need to ensure that democratic
society remains open and inclusive by highlighting the importance of pluralism.
To the extent that this may require a balancing of interests, the balance to be struck
should reflect the importance of the rights enshrined in Article 9 to both the individual
and to the ideal of democratic society itself. When individuals and belief communities
are able to enjoy their freedom of religion or belief, democratic society is itself a beneficiary. Likewise, when it is necessary to limit the enjoyment of that freedom in order to
protect wider societal interests, there is a double diminution of democratic freedoms:
not only are the freedoms of the individual curtailed, but there has been an inroad into
the democratic ideal which seeks to support the flourishing of all forms of religion or
belief which are compatible with the underlying principles of democracy, human rights
and the rule of law. This carries the implication that when these interests appear to conflict, a resolution should be sought which seeks to maximise both, to the extent that this
is possible, rather than subordinate the interests of the one to the other.
When these various factors are combined, the goals of neutrality and impartiality
become clear, these being the fostering of pluralism and tolerance and the protection of
the rights and freedoms of others. This raises some difficult and delicate issues. For example, most religious belief systems advance truth claims which are, in varying degrees,
absolutist in nature and reject at least elements of the validity of others. In addition, the
68 . . . . . . .
MR MALCOLM D. EVANS
need to allow for the ‘market place’ of ideas requires that there be exchanges of views,
expressions of beliefs, ideas and opinions and forms of manifestation which may be unwelcome and, perhaps, offensive, to others. This is both necessary for the realisation of
pluralism and tolerance yet at the same time runs the risk of compromising it. As the
Court said in the Otto-Preminger Institut case:
Those who choose to exercise the freedom to manifest their religion […] cannot
reasonably expect to be exempt from all criticism. They must tolerate and accept
the denial by others of their religious beliefs and even the propagation by others of
doctrines hostile to their faith.
Whilst respect for the freedom of religion and belief cannot require others to respect
the doctrines and teachings of faith traditions other than one’s own, it can and does require that one be respectful of them. The role of the State in such cases is to ensure that
the believer, or non-believer, is able to continue to enjoy their convention rights, albeit
that they may be troubled or disturbed by what they see and hear around them. This is
not necessarily a passive role: As the Otto-Preminger-Institut case itself suggests, when
views, ideas or opinions are expressed which amount to a “malicious violation of the
spirit of tolerance”, then the State may not only be able to intervene, it may be required
to do so.
The Court also recognised the potential need for the State to be pro-active in the
case of the Supreme Holy Council of the Muslim Community v. Bulgaria where, emphasising the role of the State as the promoter of tolerance, and noting that the State was
“under a constitutional duty to secure religious tolerance and peaceful relations between groups of believers”, it observed that “[…] discharging [that duty] may require engaging in mediation. Neutral mediation between groups of believers would not in
principle amount to State interference with the believer’s right [...], although the State
authorities must be cautious in this particularly delicate area.”
This suggests that the positive elements of the State’s duty to promote tolerance and
pluralism may permit it to work alongside such bodies in order to realise those objectives. In other words, neutrality and impartiality does not mean that the State must distance itself from religion and religious bodies. On the contrary, it suggests that the State
may engage with them on a non-partisan basis in order to assist in the realisation of
these goals.
The call for state neutrality and impartiality cannot, then, be interpreted as a call for
the State to step back engagement with religions and religious communities. Neutrality
and impartiality does not favour a strict wall of separation between Church and State.
The test is not whether a State is acting in a neutral and impartial fashion – but whether
it is facilitating the enjoyment of the freedom of religion or belief in a neutral and impartial manner. It is an active commitment and calls for a heightened degree of interaction with religious and belief communities in order to ensure that all forms of religion
and belief can flourish within a plural, tolerant and democratic society. This does
indeed take us into new and uncharted areas of human rights engagement, and offers
new and welcome opportunities for positive dialogue and a furthering of mutual respect and understanding.
. . . . . . . 69
Ms Dounia Bouzar
Anthropologist in religion as a social and cultural phenomenon,
Researcher at the French Institute of Higher National Defence Studies
The attitude of the state and its influence on religious
construction: the example of France
Section 1 of the 1905 Act states that the French Republic shall guarantee freedom of
conscience and freedom of worship. The second paragraph of section 2 entitles every
citizen, irrespective of circumstances, to choose their own confession. This implies that
public bodies may provide for the pastoral care of prisoners, the sick, members of the
armed forces and boarding pupils, to ensure that their freedom of worship is respected.
The Act was amplified by subsequent legislation, such as the 1907 law on public
worship, and above all decisions of the Constitutional Council, the Court of Cassation
and the Conseil d’Etat. These legal arrangements place a number of duties on the state.
In particular, it has a duty of neutrality, under which public officials are not allowed to
exhibit their religious beliefs in the course of their official duties1 and restrictions are
placed on the display of religious signs and symbols in public buildings.2 This duty to
remain neutral also requires the state to protect the fundamental freedoms of conscience and religion unless they pose a threat to public order. This even creates an exception to the law’s founding principle of separation of church and state since
section 2.2 of the 1905 Act provides for the public funding of chaplaincies to protect the
freedom of religion of persons who are not free to leave their school, shelter, hospice,
barracks, prison and so on.
However, growing religious diversity is raising new questions, such as how to reconcile individual freedoms and democratic values, public order and general well-being, or
the rights and freedoms of different groups of persons.
1. Conseil d’Etat, 2 May 1950 (Jamet). Individuals are allowed to manifest their religious
beliefs away from work, so long as this has no repercussions on the latter. Conseil d’Etat,
28 April 1938 (Weiss). Revue du droit public 1938, p. 553.
2. Section 28 of the 1905 Act.
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MS DOUNIA BOUZAR
I propose now to look at the various stages of the Conseil d’Etat’s consideration of
the Muslim headscarves issue, and then discuss the implications for the state’s position
on religious construction.
Freedom of conscience and public order
When the first Muslim headscarves appeared in state schools, the Conseil d’Etat ruled
that secularism required curricula and teachers to be neutral but it also required respect for pupils’ freedom of conscience. They could express and manifest their religious
beliefs within school, subject to the principles of pluralism and respect for the freedoms
of others and on condition that this did not conflict with teaching activities, curriculum
content and the obligation to attend classes.3
The Conseil d’Etat took care to ensure that girls who wore veils were not uniformly
classified. What constituted a headscarf was not defined in advance. The November
1989 opinion stated that wearing a distinctive symbol of religious affiliation was not incompatible with the principle of secularism so long as it was neither ostentatious nor
intended as a means of protest.
More specifically, it ruled that under the principles of secularism, pupils cannot be
permitted to displays signs of religious belief that, by their nature, the way in which they
are individually or collectively worn or their ostentatious character or because they are
intended as a means of protest might constitute a form of pressure, provocation or proselytism, infringe the dignity and freedom of the pupil or other members of the educational community, pose a threat to their health or safety, disturb teaching activities and
teachers’ educational role or, finally, disrupt order in the establishment or the normal
functioning of the public service.
The Conseil d’Etat approached the matter from the standpoint of freedom of conscience, with reference to the 1905 Act. Freedom of conscience required the state to
protect the freedom of some to believe and of others not to believe, hence the ban on
what was ostentatious or intended as a form of protest. Headscarves were not deemed
automatically to come into this category, and thus pose a threat to public order. It depended on how they were worn. It was not therefore the headscarf as such that was targeted, but how pupils used it and its consequences for those surrounding them.
Wearing religious symbols only had to be prohibited if it interfered with the running of
the school. What constituted a form of ostentation or protest had to be judged according to the circumstances and the manner in which each pupil wore it. The Conseil d’Etat
therefore left it to each head teacher to decide whether in particular cases the circumstances justified banning symbols of religious belief. It was to refer again later to the
need to assess each situation on its merits, thereby quashing any temptation to consider
the Islamic headscarf as intrinsically incompatible with the goals of education, particularly on account of its would-be ostentatious or conspicuous nature.4
3. Opinion of 27 November 1989.
4. Conseil d’Etat, 27 November 1996.
. . . . . . . 71
WORKSHOP I
Whereas the Conseil d’Etat adopted an individual approach, the Stasi Commission
several years later took a more collective position, arguing that it was no longer a question of freedom of conscience but of public order, which was threatened by the growing
number of confrontations on religious matters and by the “pressures” that were being
placed on under-age girls.5 It also saw a link between discrimination and growing communitarianism and stated that secularism required a constant battle against all forms of
“social and urban discrimination”, which should become a “national priority”.6 Maintaining social cohesion had become the central plank of the debate. The commission’s
report expressed concern about the drift from “a communitarian sentiment towards a
rigid communitarianism” and argued for a strengthening of the shared values that
formed the basis of society.7
The only one of the Stasi report’s proposals to be accepted was the law banning religious symbols inside schools. This 2005 Act drew a direct link between religious visibility and what was ostentatious and proselytising, and therefore banned. No other
factors were taken into account, such as the meaning and use of symbols by and for
pupils themselves, for example whether wearing a headscarf helped girls to mix more
with all the other pupils or forced them to withdraw into a sort of bubble, and the effect
of the symbol on schools’ community life, for example whether headscarves were seen
by other pupils as a barrier or simply a minor difference to be set alongside numerous
similarities. Instead, the religious symbol is now assumed to be a proselytising element
in itself, and therefore automatically incompatible with social cohesion.
How the state should approach religion in order to retain its
neutrality
Defining Muslims as a homogeneous group is to adopt the equivalent of a fundamentalist stance, by reducing a large number of individuals to their purely Muslim dimension. Basing an explanatory model of young persons’ behaviour on their Muslim
affiliation amounts to arguing, just like the fundamentalists, that Islam determines all
aspects of individuals’ lives, including their relationship to others, to the law, to their
neighbourhood and so on.
The result is a line of reasoning based on simplistic explanations that lumps all those
concerned into a single group. It leads to various preconceptions and robs people of
their fundamental right freely to define themselves, again mirroring the extremist discourse.
Political discourse in France has fallen into this trap. On the one side, left-wing politicians have denied individuals’ religious dimension for years. Their message to immigrants and their children seems to imply that the only way of becoming genuinely
French is to abandon Islam. Being simultaneously French and Muslim appears to be an
5. Ibid., p. 57.
6. Ibid., p. 51.
7. Commission to consider the principle of secularism in the Republic, Report of the President
of the Republic (11 December 2003), 77 pages, p. 14 and 17.
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MS DOUNIA BOUZAR
impossibility. In order to integrate, they should have left Islam behind at the border.
Right-wing political discourse in contrast has reduced individuals to their (presumed)
religious dimension. It is now common practice to call young people with North African names “young Muslims”. Apart from the fact that this assigns to a generation of
young persons a religion they have not necessarily chosen to adopt, such a definition
also entails a certain way of approaching their situation. In place of the normal sociological and psychological tools for analysing particular forms of behaviour, it has
become everyday practice to “Islamicise” what is essentially a social diagnosis. Reducing a category of the population to a homogeneous entity – Muslims – makes it possible
to determine their needs for them rather than applying the normal democratic procedures of participation, negotiation and face-to-face debate. It has also made it possible
for more than twenty years to avoid too much questioning of the social and political underpinnings of inner-city policy and management.
Politicians and other institutions therefore have a duty not to fall into this oversimplified way of thinking. Psychologists believe that the fusion of individuals within
groups is one of the main dangers posed by the latter. Individuals become subordinated
to the group and lose their own identities, because they have the feeling of being the
same as the others and of experiencing exactly the same emotions. The group identity
replaces that of the individual. It is therefore critical not to validate or encourage this
type of collective fantasy. Using alternative registers of expression that emphasise the
diversity of individual experience, on the other hand, will interfere with the fundamentalists’ communication system.
Acknowledging subjectivity in religious construction is to treat believers as thinking
entities who establish their identities through the appropriation of a range of constantly
evolving and interacting elements. If we forget the existence of dialogue between
human beings and their sacred texts we reduce them to a definition that they do not accept, we remove their subjectivity and we think in their place. They become enclosed in
a predefined sphere, seen as part of their heredity, in which everything can be explained.8
Recognising that individuals understand their religion in terms of what they are and
their life experience poses a challenge to certain general public preconceptions, like the
vision of an Islam that is in essence incompatible with French secular values and that
determine Muslims’ view of the world. It is a means of disposing of purely ideological
postures directed either against Islam, viewed as a monolithic bloc incapable of change,
or against what some describe as western “cultural aggression”.
Political institutions should base their thinking not on what Islam says but on what
that person understands Islam to say. In doing so they would adopt a posture that no
longer reduced Islam to a number of preconceptions but instead acknowledged that
persons’ understanding of any sacred text can vary according to time, place and other
variables that characterise individuals, such as intellectual, economic, historical and
8. For example, in the discussions on the Stasi Commission’s activities, television channels
presented the refusal of a man to allow his wife to use contraceptives as the product of
Islam, rather than seeing it as a lack of culture and education, as they would have done for
any other type of individual.
. . . . . . . 73
WORKSHOP I
psychological factors. In this way, citizens’ religious practices would be accepted without attempting to transform believers’ personal interpretations into general norms of
their religion.
This posture is also based on a certain notion of the relationship between the state
and religions, or rather the state and religious beliefs or dogmas. The emphasis here is
on the states’ duty of discretion in response to various possible interpretations of sacred
texts and to confine its attention to individual behaviour. What interests the state is not
“what Islam says” but rather “what Hamid, a French citizen, understands Islam to say.”
The role of the state – to distinguish between freedom of conscience
and signs of malfunctioning?
What comes within the scope of freedom of conscience and religion, which is enshrined
in the Constitution and the 1905 Act, and what is a sign of malfunctioning and/or radicalism? In the case of other religions the guidelines are clear. However the current international situation and the fact that Islam is above all the religion of the former
colonies gives it a sort of special status in French public debate. Muslim religious demands seem to be so different from those of other confessions that politicians, educationalists, teachers, police officers and business people feel forced to hesitate and no
longer apply their usual standards. Their representations of Islam interfere with the application of their criteria. Yet when individuals try to assert their subjective rights, the
discriminatory system comes into operation.
The use of this “Muslim” category has two contradictory effects. On the one hand,
this belief in the existence of so-called natural differences leads to the demonising of
Muslims, who are suspected of fundamentalism or of not being integrated because they
wish to practise their religion in one way or another. Yet, this categorisation may also
lead to a form of permissiveness that tolerates certain types of Islamic conduct, in the
name of religion, that would not be accepted from other believers. The principle of respect for differences can result in a clear tendency towards treating Muslims as completely different. Seeing others as being exactly the same as oneself and treating them
as having nothing in common with oneself derive from the same way of thinking that
considers Islam to be the very essence of otherness – a religion that continues to incarnate “another world”.
Representations of Islam are so negative that certain radicals can use it to justify
practically any individual misdeeds.
In the absence of a proper understanding of Islam, small groups of extremists take
advantage of widespread ignorance among French institutions to expand their activities. They operate like sects and manipulate the Muslim religion to establish barriers
between their followers and the rest of the world, which includes non-believers and
non-Muslim believers, as well as other Muslims who do not think in the same way as
them. They force their adherents to renounce all those – teachers, social workers, youth
leaders, parents, even imams – traditionally responsible for their socialisation. The aim
is to exacerbate the rift between them and all “others”, those do not belong to the sect.
They also exaggerate the similarities between their followers, until they merge into each
74 . . . . . . .
MS DOUNIA BOUZAR
other. Within the group, there must be no distinction between individuals, until “I” and
“we” become indistinguishable. The end product must be total unity between all adherents.
Hardly surprising then that the Conseil d’Etat recently decided that a Moroccan
woman who wore a burka and belonged to one of these groups did not satisfy the necessary requirements for acquiring French nationality. However, questions need to be
asked about legal decisions that can equate the religion itself with membership of a particular sect. The Conseil d’Etat’s ruling of 27 June 2008 stated that Mrs M. had adopted
a radical form of practice of her religion that was incompatible with the underlying
values of the French community, particularly with the principle of equality of the sexes.
Yet another example of the institutions of the Republic slavishly accepting the fundamentalists’ definitions of Islam.
This is not the first time that France has allowed the radicals to define Islam. As long
ago as 2005, a court acquitted an “imam” who called for violence against women, on the
grounds that the latter had confined himself to explaining what his religion said through
the Koran and it was not for the court to delve into the inner sanctum of the religion.
More recently, the same type of question was raised by a Lille court’s decision to consider virginity as an “essential quality” of the married woman concerned. Did it think
that in this way it was “respecting the values of Islam”? Would it have made the same
ruling if the applicant had been a Christian or Jewish husband?
Generally speaking, treating certain individuals’ beliefs literally as “religious laws”
amounts to the sanctification of a human interpretation. Indeed, secularism’s role is to
combat the mediaeval system that allowed men to use God to lay down would-be divine
laws that served their own purposes. Separating the profane from the sacred helps individuals, of whatever religious, political or philosophical persuasion, to free themselves from such mediaeval practices. It is therefore time for the French Republic to
treat Muslims as French citizens like any others, and to apply its secular principles to all
religions in the same way. This would be the best way of combating representations that
deem Islam to be an essentially archaic religion, incapable of change, that has to be
treated apart.
The political authorities and other institutions of state have made an incorrect diagnosis that can only lead to impasse. Whether the result is over-permissiveness or denomination, it is always the fundamentalists who will benefit.
. . . . . . . 75
Ms Barbara John
Member of the European Commission against Racism and Intolerance
Freedom of religion as a constitutional right for all has
to be guaranteed and protected by the state
When I worked as the Commissioner for Migration and Integration of the Berlin Senate
from 1981 to 2003 I had ample personal encounters with diverse religious groups, because I made it a regular habit to visit new places of religious worship. In the first decades after the arrival of these religious groups most of their premises were located in
former factories. Only since the late nineties religious migrant communities started to
erect more representative buildings. One of the results was to publish a much demanded brochure “World religions in Berlin”, which served as an informative guide for migrants as well as for the local community.
My activities then had mainly two objectives. Firstly, my intention was to inform
native inhabitants, specially schools and long-term local faith groups in the city about
new denominations within their neighbourhood. Secondly, there was a political need of
teaching administrations and particularly the police of Berlin about places of worship
that were largely unknown to them. For me it was of eminent importance that the police
became aware of how to meet believers in a professional manner and how to “behave”
within their consecrated places. It was not common standard at the time that religious
freedom – a highly revered basic right in the German Constitution – was applicable to
all denominations, as also laid down in the European Convention on Human Rights as
well as in the General Policy recommendations Nos. 5, 7, 9 and 10 of European Commission against Racism and Intolerance (ECRI).
Since all European societies represented within the Council of Europe are more or
less secular states it is simply not sufficient for them just to set and grant an impartial
and neutral framework when it comes to exercising religious rights. As we have observed in many countries there is often a hidden agenda operating, which privileges
either the dominant religion or tries to ban religious symbols such as the veil or buildings of worship altogether, because the state defines itself as having a pure secular identity which is somehow endangered and challenged by old-fashioned faith groups.
Therefore it is essential that, first of all, the state understands its role as being more than
76 . . . . . . .
MS BARBARA JOHN
neutral, namely inclusive, in the emerging of multi-religious societies within the
member states of the Council of Europe.
Challenges ahead for secular societies
The challenges which states must live up to are many-sided:
‚ States must continuously show demonstrative visible gestures that they are not only
willing but also determined to ensure equal treatment and freedom to exercise ones
religion for all denominations in an ever growing pluralistic society.
‚ They are obliged to do so in the light of their own cultural and religious traditions
and values.
‚ They are also obliged to abandon a deeply rooted belief about secularisation of
public life being the one and only way for a “modern” state to function.
Many countries with a number of different religions regularly and insistently pose
themselves the following question: “Don’t we need common values to live together
peacefully?” Without doubt this is a valid claim. But the answers given are often not.
This was for example the case when suddenly – as it happened in Germany at the beginning of the new century – a new term was brought forward on the political agenda:
German “Leitkultur” e. g. leading culture. What was demanded then by many politicians was a subordination of migrants, especially from Muslim countries, under
German laws, traditions and values. The decisive message of this debate was however
not focused on “sticking to the law”, since hardly anyone was doubtful about the lawabiding attitude and behaviour of migrants. The cryptic message was that other religions than Christianity could be seen as representing a counterculture. It was also believed that a non-secular understanding of how to present ones religion in public and
in the society could constitute a threat to a “modern” society. Thus the conformity and
harmony of some religions with modern democratic principles was challenged. The
main target of this discourse was Islam and the large Muslim community, since they
were just beginning to mobilise and build up a Muslim group identity which included
more visible action – e.g. building representative mosques, demanding religious instruction at schools and defending head scarves. In order to exclude Muslims with certain convictions from German citizenship one of the Federal States of Germany –
Baden-Württemberg – introduced in 2006 a test for persons considered to be Muslims
who were applying for German citizenship. One of the questions was: “In some major
German cities the mayor declares him or herself to be homosexual. What is your opinion on this?” What became obvious was that in this particular case the state not only
obliged citizens to be law-abiding, but also required a specified attitude from them concerning an issue of opinion and thought of a non-legal nature.
. . . . . . . 77
WORKSHOP I
The role of the state: ensuring a society governed by
the rule of law and not by the rule of uniform mental
attitudes
After more than half a century of mass immigration to Europe our societies have to
build a new understanding of the state’s role in respect of religious groups. It seems obvious that the prevailing ideology in many states of political secularity excluding public
religious representation cannot any longer serve as a foundation for our multicultural
and multi-religious societies. Therefore, to simply emphasise that states act as just neutral and impartial guards against religious intolerance and discrimination is no longer
sufficient. Much more is required of them.
A structure of communication between the state and the migrant religions is urgently needed in order to negotiate a working relationship. Such communication has been
established in Germany and in France in recent years vis-à-vis the Muslim community.
Basic knowledge about the core content of different beliefs, including humanistic teachings, should be part of the school curricula with a particular accentuation on the dignity
and uniqueness of every human being in all faiths. Without equal acceptance of the representation of religious beliefs, symbols and organisation as being a normal part of an
open democratic society – side-by-side with that of not being religious – freedom of religion will be at risk along with the full integration of millions of immigrants.
78 . . . . . . .
Report of the discussion: Mr Marc Tysebaert
General Advisor at the Federal Ministry of Justice of Belgium
The question the workshop was asked to discuss was whether the state should simply
play a neutral and impartial role with regard to issues concerning freedom of religion or
whether it should move beyond that position and take a more proactive approach. I
shall try to present the different points broached during the discussions in this workshop, of which I was the moderator. Unfortunately, one of the speakers, Ms Dounia
Bouzar, was unable to attend the workshop for health reasons.
Mr Evans, one of the workshop speakers, author of the manual on the wearing of religious symbols in public areas, which will be presented at the conference, noted in his
introductory remarks that the position of the European Court of Human Rights on this
question had evolved somewhat in a number of comparatively recent judgments and
that the consequences of this gradual change in its case-law had not yet been fully explored. The Court had emphasised in particular that the state should not only guarantee
the exercise of freedom of religion under domestic law and facilitate it in practice, but
was also responsible for the exercise of this freedom in its capacity as a neutral and impartial organiser. The state thus had to guarantee tolerance and peaceable relations between groups of believers, and between believers and non-believers, and sometimes
even between believers belonging to the same religion. This might sometimes even
cause it to intervene as a mediator between different groups.
The workshop participants took the view that respect for the state’s neutrality and
impartiality should not prevent it from being in contact with religious communities.
The principles stemming from freedom of religion did not require there to be an impenetrable barrier between the state and religions, precluding all contact. On the contrary, it should be for the state to establish a dialogue with religious communities so that
both parties could understand each other’s expectations and thus avoid tensions and
misunderstandings. So the view emerging from the discussions was that dialogue was a
key element.
Religious freedom is regarded as one of the fundamental rights of our democratic
societies, with special significance in many people’s lives. That is also why the participants felt it might be advisable for the state to play a proactive role in this area, without
its neutrality being affected.
. . . . . . . 79
WORKSHOP I
They also noted that the authorities, and in particular local authorities, did not
always manage to provide the appropriate response when faced with a number of very
practical problems arising from religious practices, particularly those of religions other
than that of the majority. The issue of the wearing of religious symbols was raised, especially with regard to civil servants. (Other practical examples will be given later.)
While respecting religious freedom and equality, states should show the required neutrality in their approach to these issues. In this respect, reference should be made to the
above-mentioned manual on the wearing of religious symbols. However a remark was
made that we should not forget that the attitude towards this problem stems from people’s perception of these symbols. It is often only in people’s minds that the wearing of
a certain symbol is expressing affiliation to a religion, which does not necessarily correspond to the reality. Hence, the need to be aware of the context. If someone is dressed
in orange clothes in the Netherlands it will not give rise to any reaction (unless it is a
positive one), but it will be interpreted quite differently if one wore this colour in Northern Ireland in a particular neighbourhood on a precise day (12 July).
More generally, the participants considered that states should highlight the common
points between the various components of our culturally diverse societies, rather than
the differences between them. They should, for example, strike a balance between the
interests at stake, especially when religious practices came up against restrictions, on
the common, firmly established basis of respect for human rights. Ms John, one of the
speakers, gave the counter-example that some questionnaires on access to citizenship
might, as a result of the questions asked, stigmatise persons belonging to religious denominations other than that of the majority and therefore heighten feelings of exclusion.
Some participants also noted that religious freedom was often regarded as a strictly
private matter, not a public one, but that this distinction might be difficult to make in
practice (when did religious freedom exceed the bounds of private life and become public?) and might then seem artificial. Some also pointed out that the state should not give
the impression of contrasting secularism with religion, since the two concepts were not
necessarily contradictory: a person could practise a religion while being in favour of a
secular state.
As regards the promotion of religious diversity in education, it was noted, for example, that if some groups were allowed to set up schools complying with the rules of their
own religion, other groups should normally be able to do so as well (schools closely
linked to political parties come to mind). Also, although this point was not discussed by
the group for lack of time, I wish to emphasise the indisputable importance of objectively teaching pupils about religious facts at school in order to combat any prejudices
they may have about one another at the earliest possible stage, through better knowledge of the others’ religion or beliefs.
While special attention must be paid to the principles of pluralism and equality, a
distinction sometimes has to be drawn between matters that undermine the actual enjoyment of the freedom to express one’s beliefs, and a number of more “marginal” or
trivial requests. One example was the request made to a municipality to have free parking on a day of the week other than Sunday where possible, on the grounds that the ex-
80 . . . . . . .
REPORT OF THE DISCUSSION: MR MARC TYSEBAERT
isting situation favoured Christian religious practice but not that of other religious
groups. The outcome was not that free parking was extended, but on the contrary that
free parking on Sundays was abolished. Some participants felt that this trivial example
showed how simplistic applications might sometimes result in levelling down. However, not all the participants shared this view.
Attention was also drawn to the importance of promoting tolerance on the part of
members of religious communities. Ms John gave the example of sports encounters organised in Berlin between young Muslims prejudiced against homosexuals and LGBT
persons – an initiative that had helped them learn greater tolerance towards others.
However, some participants noted more generally that a number of offensive remarks
and attitudes should nevertheless be tolerated in our culturally diverse societies provided that they did not constitute hate speech.
Some participants also pointed out that religious communities sometimes complained about the state imposing particular values without their being able to help interpret them. This of course meant that dialogue must be established, but should on no
account cast doubt on the principle that human rights were the indisputable common
foundation of our democratic societies.
To guarantee freedom of religion, it was pointed out that the immediate response to
practical problems arising at local level need not always be to draft new legislation at
once. The exchange of good practices between governments could be beneficial. The
workshop participants were most interested in the guidelines for local authorities on relations between the state and religious communities, announced by the Minister for the
Interior and Kingdom Relations of the Netherlands. These guidelines stemmed from
the fact that local authorities were facing various practical situations they found hard to
handle without risking a departure from their position of neutrality. Issues that had
come up included those concerning cemeteries and possible facilities for the funeral
rites of the various religions (in certain regions of Belgium it is possible to buy a burial
plot in a cemetery for 50 years, which can be renewed, and parts of the cemetery are
reserved for Muslims. In other regions such arrangements are being considered) as well
as the building of mosques. The participants considered that such guidelines could be
a most useful practical tool for policy-makers on the ground.
By way of conclusion I shall mention two practical points that emerged from the
workshop’s discussions:
‚ it is advisable for the state to establish a genuine dialogue with the religious communities in order to get a better idea of their expectations, but also to clarify its own expectations, taking a proactive approach without departing from its position of
neutrality;
‚ the exchange between states of good practices concerning freedom of religion might
be beneficial, ensuring that national experiences contribute to other states’ practices
on these sometimes tricky issues; the example of the Netherlands’ guidelines was felt
to be particularly relevant.
. . . . . . . 81
WORKSHOP II
HOW TO FIND A PROPER BALANCE BETWEEN
FREEDOM OF EXPRESSION AND PROTECTION
AGAINST “HATE SPEECH”?
Ms Bissera Zankova
Member of the Steering Committee on the Media and New
Communication Services
Freedom of expression and protection from
discrimination – does the media strike a balance?
Summary
The paper explores the institutional dimension of freedom of expression – the media –
and its balancing role in pluralist democratic societies. Being not only a means of information and comments but also a powerful player in today’s world, the media promotes
intense and multiple communications as a basis for the proper exercising of human
rights and especially that of free expression. Through an independent and accountable
media, freedom of expression can successfully accomplish its public mission in a democracy, while persons and communities can overcome their racial, ethnic, sexual and
generational prejudices and concerns.
As an independent and balancing system the media pursues the following interrelated goals:
‚ The media creates a vibrant and pluralist public sphere which fosters human rights
implementation and awareness through vigorous public debate and scrutiny on the
government.
‚ The media promotes a culture of tolerance, social cohesion and understanding
through dialogue and exchanges of opinions and views.
‚ The media drives discussion and creates the necessary environment where different
groups and communities can come to know each other better and thus avoid discrimination and hatred.
There should be adequate guarantees in a democracy enabling the media to best
serve the democratic principles and values and to promote pluralism, tolerance and
broadmindedness.
. . . . . . . 85
WORKSHOP II
Freedom of expression, freedom from discrimination and human
dignity
Democratic societies can advance their goals if their members are equal in dignity and
respect and free to express their differing ideas, views and comments in the search for
truth. Discrimination on racial, ethnic, sexual, generational or any other ground is at
variance with such values as human rights, rule of law, tolerance and diversity which
comprise the basis for peaceful coexistence of individuals and communities.
Democratic societies are distinguishable by their capacity to reconcile conflicts
through deliberation within the constitutional framework. Practices which hamper or
stifle dialogue not only contradict the foundations of democracy, but from the perspective of the individual they also abuse human dignity. Therefore they cannot be tolerated
as being of any social value.
Free discussion at all levels in which everyone can partake with dignity presupposes exchanges of views without fear from punishment or reproach. In open and vigorous debates it is hard to say what is really meaningful for the common good and that
is why every idea, even incomplete, erroneous, shocking or hurtful, matters. With
regard to this one should remember the seminal decision of the European Court of
Human Rights in Handyside v. the United Kingdom (1976) where it is underlined that
[F]reedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every
man. Subject to paragraph 2 of Article 10, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the State or any sector
of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.
The media as a balancing factor in a democracy
Dialogue at all levels among institutions, communities and individuals is vital for democracy. In modern society it is predominantly driven by the media representing its
balancing role. The media has an imminent and powerful effect on the hearts and
minds of the public (in different degrees according to the type of media, audiovisual
media being the most forceful and pervasive of all). That is why the character of media
presentation of cultural, ethnic and religious problems is of great importance for enhancing communication and for creating a favourable and healthy social environment.
Through more dialogue communities can get to know each other better, sensitivity can
be lowered and prejudices overcome. People can discover a common heritage and similar experiences. The outcome is better understanding, mutual recognition and respect
as a basis for cohesion. The media can draw public attention to intercultural and interreligious issues by structuring public agenda in such a way as to highlight their positive
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MS BISSERA ZANKOVA
effect on life in society. In this respect one of its main tasks is to give prominence to examples of good practice resulting in harmonious co-existence.
On the other hand, by disseminating discriminatory or inflammatory speech the
media can enormously increase the risk of social disruption. There are various forms of
such deformed speech or “malspeech”, the typical example of which is “hate speech”. All
deformed or distorted forms of expression aim to humiliate and denigrate individuals
that differ, that seem strange or suspicious due to human prejudices. By not respecting
the dignity of other persons, hate speech does not contribute to the development of a
public sphere of mutual enrichment and understanding, but rather stirs up conflict and
may easily provoke violence. Therefore it is of no value for the democratic process.
Guarantees for the balancing role of the media in democratic
societies
As the role of the media is central to the strengthening of democracy, media outlets
should be responsible for the quality of the underpinning debate. This duty is even more
relevant in a multicultural and complex environment where various players participate
and different rights and interests intersect. The professional contribution of journalists
merits particular attention within this context. Through the balanced and accurate reporting on communities journalists should, on the one hand, avoid stereotyping and belittling minority and indigenous groups, while on the other, make people more open
and curious about the characteristics and the achievements of “others”.
All this presupposes the establishment of a number of conditions which promote a
free, pluralist and accountable media. The first and foremost is the independence of the
media system from political and economic interference.
The other conditions pertain to the legal status and organisation of the media as an
institution, to the requirements related to its performance and to the cooperation with
other bodies and organisations.
The first prerequisite is the creation of an appropriate legal framework including,
among other factors, effective constitutional guarantees and special rules concerning
the arrangements of the media departments, their work and staff and the operation of
internal and external media bodies (e.g. management boards, programming and public
councils, advisory bodies, committees and regulators). It is desirable that all of them
have pluralist representation in order to adequately respond to problems in a multicultural environment.
Furthermore, the competence and organisation of the specialised media regulator(s)
merit particular attention. Again it is important to note their pluralist membership –
not only from their background but also their identity, culture, religion and traditions.
It is worth thinking in this direction, keeping in mind the challenges posed by multicultural societies and intercultural dialogue. These bodies set guidelines and/or oversee
their implementation aiming at enhancing pluralism and tolerance in the media field.
This implies the application of principles which are not only narrowly tailored for the
sector but which embody broader democratic values and rules – diversity, anti-discrimination, tolerance and broadmindedness. In this respect the criteria of the European
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Court of Human Rights, the Steering Committee on the Media and New Communication Services (CDMC) and the standards of the European Commission against Racism
and Intolerance (ECRI), for instance, can serve as a solid basis for banning hate speech
and boosting dialogue through the media.
The other requirements concern the content disseminated and are made up of rules
for a pluralist and balanced media presentation. The successful implementation of
these standards could be accomplished through the regular application of self-regulation in the form of codes of ethics, professional norms and constant self-control
through the extensive use of the right to reply. In this respect the Council of Europe recommendations should underpin the media regulatory and self-regulatory system imbuing it with human rights values. As far as democratic discussion is concerned the
declaration of the Committee of Ministers on freedom of political debate in the media
from 2004 proves crucial. It highlights the principles governing democratic debate and
the degree of responsibility of the media when disseminating information on issues of
public concern. Allowing the media to freely criticise institutions, public figures and
public officials bearing in mind article 10 of the European Convention on Human
Rights (ECHR) and the jurisprudence of the Court in Strasbourg, the document envisages imprisonment if fundamental rights are infringed through defamatory or insulting
speech, such as hate speech.
Three other recommendations are also highly pertinent in cases of discriminatory
expression.
‚ Recommendation (97) 21 on the media and the promotion of a culture of tolerance targets different social actors responsible for the infringement of a culture of
tolerance including media enterprises as well as in the new communications sectors,
the representative bodies of media professionals, regulatory and self-regulatory
bodies and schools of journalism and media training institutes. Taking on board a
comprehensive approach in drafting an adequate national policy, the act stresses advertising in particular as an area of concern due to its vast impact on the audience.
The recommendation points out that certain advertisements reflect the multiethnic and multicultural character of consumer society and practices and that codes
of conduct have to be drawn up in such a way as to prohibit discrimination on
grounds of race, colour, national origin, etc.
‚ Recommendation (97) 20 on hate speech notes specifically that such forms of expression defined as “hate speech” which incite racial hatred, xenophobia, antiSemitism and all forms of intolerance are unacceptable because they heighten hatred, fear and prejudices among people. They may also have a greater and more damaging impact when disseminated through the media. So as to protect the media and
its public function it is stated that national law and practice should clearly distinguish between responsibility of the author of expressions of hatred and the responsibility of the media to disseminate them as part of their public mission to impart
information and ideas on matters of public interest (paragraph 6 of the appendix).
‚ Recommendation (97) 19 on the portrayal of violence in the electronic media
sets clear guidelines targeting journalists on how violence can be presented to the
public without violating the duties and responsibilities in exercising freedom of ex-
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MS BISSERA ZANKOVA
pression under article 10 of the ECHR. A whole range of measures to be taken by
media professionals in the electronic media are outlined, including a signal content
system, sectoral codes of conduct, internal guidelines together with standards for
evaluating the content, consultation and control mechanism and expanding the selfregulatory standards to other partners such as audio-visual producers, manufacturers of video-games, advertising agencies, etc.
Other recommendations in the field of free expression and the media prepared by
the CDMC provide sufficient guidance for accomplishing cultural diversity and pluralism in media performance, including the new technological environment. A major
challenge nowadays is that of fully benefiting from the opportunities offered by the new
communications services in order to establish meaningful dialogue among individuals,
communities and groups. Public service media should be at the forefront of the process
as it is a media organisation established to work for the public and to integrate all individuals and groups around common values and principles.
Community media or the “third sector” can successfully complement public service
media by implementing a public function oriented towards the specific problems of different communities by dealing with local issues and promoting various traditions. The
support for community media across Europe can prove crucial for expanding their contribution to increasing diversity of content and boosting participation thus helping
them play a more active role in social cohesion and intercultural dialogue.
The co-operation between the media and other bodies and organisations can be
considered an important factor in promoting dialogue and eradicating any form of intolerance. It is worth mentioning that the media can collaborate effectively with other
institutions in the field, such as the commissions for the protection against discrimination. A fruitful trend to be pursued is the expansion of media literacy and media education among individuals and communities. In the same vein is the promotion of the
training of journalists which should aim at raising awareness of the relevant Council of
Europe standards among media professionals and encouraging them to consistently
apply these standards in practice. A whole national and international network can be
established with civil society for fostering human rights and media literacy thus improving media contribution to dialogue and understanding, including through the new
communications services and platforms. This should also comprise a regular exchange
between the relevant governmental institutions, NGOs, media enterprises and schools
of journalism for the promotion of good practices.
Conclusion
The importance of dialogue for resolving social contradictions and tensions can be
comprehensively assessed by taking into account the role of the media as a balancing
communicative power in democratic society. In its “Report on the relationship between
freedom of expression and freedom of religion: the issue of regulation and prosecution
of blasphemy, religious insult and incitement to religious hatred” (October 2008), the
Venice Commission comes to the conclusion that, “[I]t is nor exclusively or primarily
for the courts to find the right balance between freedom of religion and freedom of ex-
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pression but rather for society at large, through rational discussions between all parts
of society, including believers and non-believers”. A similar conclusion could be drawn
from freedom of expression and freedom from discrimination – all parts of society
should take part in the debate on how far speech can go and it is for the socially accountable modern media to be a key-factor.
90 . . . . . . .
Mr Githu Muigai
UN Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance
Hate speech, freedom of expression and the fight
against racism
Discussions over hate speech1 – and how to balance the prohibition thereof with freedom of expression – currently lie at the centre of debates in the UN human rights system. This debate has developed around the notion of “defamation of religions”, put
forward for the first time in the Commission of Human Rights in 1999. While it predates the events of 11 September 2001 and, in particular, the publication of the caricatures of Prophet Mohammed in the Danish newspaper Jyllands-Post in 2006, the issue
has taken a new significance after these events. More recently, the release of the movie
Fitna earlier this year has also raised similar concerns.
At the root of the problem lie different interpretations by States regarding cases of
“defamation of religions” and how they are situated vis-à-vis the international human
rights regime. The key question that was originally the subject of extensive debate was
whether “defamation of religions” raised concrete human rights obligations to States. In
addition, concerns are raised that this notion may be problematic due to its focus on religions rather than on individuals. I believe that the debate at present is currently
moving from the concept of “defamation of religions” to the existing legal notion of “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility and violence”. I welcome this gradual shift since it might help us better
understand the existing legal obligations for states.
However, apart from the issue of a conceptual approach to the problem, there are
other remaining difficulties, such as the threshold which triggers Article 20 and the application thereof.
1. For practical purposes, I will use this concept of hate speech as a convenient short term to
describe the legal notion of advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence, as contained in Article 20 of the
International Covenant on Civil and Political Rights (ICCPR).
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WORKSHOP II
To address these difficulties, the High Commissioner for Human Rights recently
held an Expert Seminar in Geneva on the links between Articles 19 and 20 of the Covenant. The seminar was highly successful in bringing together a number of top academics and experts on these issues, who identified the key challenges and put forward
precise recommendations.
Regarding the threshold that triggers Article 20, a number of questions remain.
What constitutes incitement to violence, hostility or discrimination? In particular,
where do we draw the line between criticism – even if it is deemed offensive – and hate
speech? We need solid legal answers to these questions. The appropriate body for interpretation, insofar as the Covenant is concerned, is the Human Rights Committee.
This is the reason why my predecessor, along with the Special Rapporteur on freedom
of religion or belief, suggested to the Committee the elaboration of a general comment
on the application of Article 20, which should help us guide our legal approach to the
problem. I trust that the Committee will undertake this task when it deems it convenient, in an environment that is insulated from political pressure and focusing clearly on
the legal questions involved.
The Expert Seminar pointed to the need of a case by case approach. One therefore
needs to take into account, for instance, the history of violence or persecution against a
particular ethnic or racial group, which can be a meaningful indicator of their vulnerability. In this view, when Article 20 of the ICCPR is triggered, this generally indicates a
failure of the State to fulfil other obligations, in particular the right to non-discrimination. Article 20 would in this regard be seen as the last safeguard against incitement to
hatred. Its ‘activation’ means that all previous checks failed to achieve a desirable result.
This highlights the fundamental obligation that the State has in fighting racism and discrimination as broader phenomena. I will come back to this point later.
Regarding the application of hate speech laws, the Seminar also identified some objective criteria to avoid arbitrary application of these laws. Some of the criteria that were
raised include:
‚ the public intent of inciting discrimination, hostility or violence must be present for
hate speech to be penalised;
‚ any limitations on freedom of expression should be clearly and narrowly defined and
provided by law. In addition, they must be necessary and proportionate to the objective they propound to achieve, i.e. prohibiting hate speech;
‚ the least intrusive means insofar as freedom of expression is concerned should be
used in order to prevent a chilling effect;
‚ the adjudication of such limitations must be made by an independent judiciary.
When discussing hate speech laws, it is also important to bear in mind the overall
set of obligations to combat racism, racial discrimination, xenophobia and related intolerance. I have argued above that hate speech laws are necessary and legitimate according to international standards. At the same time, I cautioned against their
subjective and overly-broad application and pointed to some criteria that should be followed when applying them. However, the crux of the matter is the obligation of the state
to actively fight racism and discrimination more broadly – i.e. not limited to hate
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MR GITHU MUIGAI
speech legislation. This, in my view, is the most effective response we can give to the
problem.
States have several obligations to fight discrimination, fighting hate speech is only
one of them. Article 26 of the ICCPR establishes the “equal protection” obligation. In
particular, it states that, “the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground”, including
race, colour or national origin. Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) provides an even higher standard
of non-discrimination, including the need to adopt positive actions. Similar grounds for
non-discrimination are contained in most international human rights instruments
I am convinced that the full application of this framework is the most important defence that we have against all manifestations of racism, including hate speech. In this
sense, hate speech is but a symptom of a more profound disease, which is racism and
intolerance. We need therefore to attack these root causes, not only their external manifestation, if we are to be successful in the long-term. Racist and discriminatory policies
and ideas unfortunately still exist around the world: racial profiling, institutional discrimination by law, racial or ethnic approaches to migration; non-enjoyment of economic and social rights by racial or ethnic minorities; limitations to freedom of religion
or belief; lack of acceptance and tolerance to diversity; etc.
In this regard, a much broader set of policy measures are necessary, starting with the
application of the existing legal framework, particularly at the domestic level. Political
will to tackle racism is more urgent than ever. This set of policy measures also include
strengthening freedom of expression as a key instrument in fighting the root causes of
racism: it allows us to change mentalities, educate about cultural differences, empower
and give voice to minorities and promote interaction as opposed to isolation. There is
an urgent need to form broad coalitions to translate these ideas into concrete actions. I
am positive that this will be the most effective weapon against those who want to spread
hatred and discrimination.
. . . . . . . 93
Ms Finola Flanagan
Member of the European Commission for Democracy through Law
(Venice Commission), Member of the Management Board of the
European Union Agency for Fundamental Rights
The Venice Commission, at its 76th Plenary Session on 17 and 18 October 2008, adopted a Report on the relationships between freedom of expression and freedom of religion:
the issue of regulation and prosecution of blasphemy, religious insult and incitement to
religious hatred. This report is contained in the Venice Commission’s publication Tackling blasphemy, insult and hatred in a democratic society. This publication contains the
documentation which relates to the report.
In its Resolution 1510 (2006) on Freedom of expression and respect for religious beliefs, the Parliamentary Assembly of the Council of Europe addressed the question of
whether and to what extent respect for religious beliefs should limit freedom of expression. It expressed the view that freedom of expression should not be further restricted
to meet increasing sensitivities of certain religious groups, but underlined that hate
speech against any religious group was incompatible with the European Convention on
Human Rights. The Parliamentary Assembly, on behalf of the Committee on Culture,
Science and Education, proposed that the Venice Commission prepare an overview of
national law and practice concerning blasphemy and related offences with a religious
aspect in Europe.
Mr Louis-Léon Christians, Professor at Louvain University, Belgium, was invited to
join the Venice Commission group as an expert and he prepared a Report which collects
the legal provisions in force in all Council of Europe Member States. Subsequently a
more detailed questionnaire was sent to a selected number of countries in order to
obtain some indication of current trends and problems in Europe, as well as of related
legal practices. The questionnaire was sent to twelve States (Albania, Austria, Belgium,
Denmark, France, Greece, Ireland, the Netherlands, Poland, Romania, Turkey, the
United Kingdom).
The replies to these questionnaires revealed the following:
‚ Most states penalise the disturbance of religious practice (for instance the interruption of religious ceremonies);
‚ Blasphemy is an offence in only a minority of member states though there is no
single definition of “blasphemy” and the offence is rarely prosecuted;
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MS FINOLA FLANAGAN
‚ Religious insult is a criminal offence in approximately half the member states and
whilst there is no general definition of the offence it appears to cover the concept of
“insult based on belonging to a particular religion” and “insult to religious feelings”;
‚ Negationism (public denial of historical facts or genocide with a racial aim) is only
an offence in a few countries;
‚ Discrimination is prohibited at constitutional level in all Council of Europe member
states;
‚ Practically all Council of Europe member states provide for an offence of incitement
to hatred of which incitement to religious hatred is a subset with most countries requiring that the incitement occur in public but only some requiring that “intention”
be an essential element of the offence.
This report does not purport to provide all the answers to the difficult questions
raise in the field of the intersection of freedom of expression and freedom of religion.
Nonetheless, the Report reaches certain clear conclusions in the Venice Commission’s
opinion, i.e. incitement to hatred should be criminalised and prosecuted, with no unjustified difference being made between different groups. By contrast, neither blasphemy nor insult to religious feelings ought to be criminalised. The report underlines that
democratic societies must not become hostage to the excessive sensitivities of certain
individuals: it must be possible to criticise religious ideas even if such criticism may be
perceived by some as hurting their religious feelings. Fear of violent reactions should
not dictate self-censorship. Nonetheless, reasonable self-restraint should be used if
constructive debate is to replace dialogues of the deaf. The report concludes by proposing a new ethic of responsible intercultural relations.
The analysis of the European domestic laws shows a pan-European penalisation of
incitement to hatred, a clear tendency not to prosecute blasphemy and a tendency not
to criminalise religious insult. The authors of the report considers this to be the correct
approach for the future. The report underlines that it is essential that provisions against
incitement to hatred be applied in a non-discriminatory manner.
It can be seen from the conclusions in the Venice Commission’s Report (which I have
set out below) that legislation, and in particular, criminal legislation prohibiting incitement to hatred including religious hatred, is an essential element in regulating the relationship between freedom of expression and freedom of religion. Nonetheless the
Venice Commission was also firmly of the view that laws are by no means the only
answer to this particular problem for society. The balance that is required between the
right to freedom of expression and “the duties and responsibilities” that go with its exercise are expressly acknowledged in Article 10 of the European Convention on Human
Rights. The Convention guarantees everyone’s right to freedom of expression but,
“since it carries with it duties and responsibilities …” the Convention permits it to be
subject to certain formalities and restrictions where this is “necessary in a democratic
society”. Article 9 of the Convention guarantees freedom of religion, the manifestation
of which may be subject to limitation only where necessary in a democratic society in
the interest of public safety, for the protection of public order, health or morals, or for
the protection of the rights and freedoms of others.
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WORKSHOP II
As we all know, conflict between these two guaranteed rights is something that can
and does arise. The Report’s conclusions seek to address the balance that must be struck
to ensure that, as the Convention requires in Article 17, “abuse of the right to freedom
of expression does not destroy or unduly diminish the right to respect for the religion
of others”. The Commission is of the view that recourse to criminal law should only
happen with caution in the area of freedom of expression. Nonetheless it is of the view
that hate speech justifies criminal sanction; whereas neither blasphemy nor the offence
of insult to religious feelings should be deemed a criminal offence without the element
of incitement or hatred as an essential component.
The Venice Commission “does not support absolute liberalism” nonetheless, and it
is legitimate to expect from every member of a democratic society that they should
avoid as far as possible expressions that express scorn or gratuitous offence to others
and infringe their rights. The report emphasises the essential role of dialogue in society
in between religious groups and of self-restraint in exercising the right of expression
emphasising the need for mutual understanding and acceptance which is perhaps the
main challenge for modern society.
The Venice Commission reached the following specific conclusions which are set
out in the Report adopted in October 2008:
‚ As concerns the question of whether or not there is a need for specific supplementary legislation in the area of blasphemy, religious insult and incitement to religious
hatred, the Commission found:
– That incitement to hatred, including religious hatred, should be the object of criminal sanctions as is the case in almost all European states, with the only exceptions of
Andorra and San Marino. The Venice Commission recommended that these two
states should criminalise incitement to hatred, including religious hatred. In the
Commission’s view, it would be appropriate to introduce an explicit requirement of
intention or recklessness, for which only a few states provide.
– That it is neither necessary nor desirable to create an offence of religious insult (that
is, insult to religious feelings), without the element of incitement to hatred as an essential component.
– That the offence of blasphemy should be abolished (which is already the case in most
European States) and should not be reintroduced.
‚ As concerns the question of the extent to which criminal legislation is adequate and/
or effective for the purpose of bringing about the appropriate balance between the
right to freedom of expression and the right to respect for one’s beliefs, the Commission reiterated that, in its view, criminal sanctions were only appropriate in respect
of incitement to hatred (unless public order offences were appropriate).
‚ Notwithstanding the difficulties with enforcement of criminal legislation in this
area, the Venice Commission concludes that there is a high symbolic value in the
pan-European introduction of criminal sanctions against incitement to hatred as it
gives strong signals to all parts of society and to all societies that an effective democracy cannot bear behaviours and acts which undermine its core values: pluralism,
tolerance, respect for human rights and non-discrimination. It is essential however
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MS FINOLA FLANAGAN
‚
‚
‚
‚
‚
‚
‚
that the application of legislation against incitement to hatred be done in a non-discriminatory manner.
The Commission is instead of the view that criminal sanctions are inappropriate in
respect of insult to religious feelings and, even more so, in respect of blasphemy.
Finally, as concerns the question of whether there exist alternative options to criminal sanctions, the Commission recalls that legal systems provide for other alternative courses of action, which could be used in cases other than incitement to hatred.
However the Commission concludes that, as is the case with other problems of society, it is not exclusively or even primarily for the courts to find the right balance
between freedom of religion and freedom of expression, but rather for society at
large, through rational discussions between all parts of society, including believers
and non-believers.
The Commission is of the opinion that a new ethic of responsible intercultural relations in Europe and in the rest of the world is made necessary by the cultural diversity in modern societies, and requires that a responsible exercise of the right to
freedom of expression should endeavour to respect the religious beliefs and convictions of others. Self-restraint, in this and other areas, can help, provided of course
that it is not prompted by fear of violent reactions, but only by ethical behaviour.
This does not mean, however, that democratic societies must become hostage to the
excessive sensitivities of certain individuals: freedom of expression must not indiscriminately retreat when facing violent reactions.
In the Commission’s opinion, the level of tolerance of these individuals and of
anyone who would feel offended by the legitimate exercise of the right to freedom of
expression should be raised. A democracy must not fear debate, even on the most
shocking or anti-democratic ideas. And that it is through open discussion that these
ideas should be countered and the supremacy of democratic values demonstrated.
Mutual understanding and respect could only be achieved through open debate and
persuasion, as opposed to ban or repression. Such open debate and persuasion is the
most democratic means of preserving fundamental values.
For this reason, in the Commission’s opinion, the recommendations of PACE, ECRI
and many others as to the need to promote dialogue and encourage a communication ethic for both the media and religious groups should be taken up by way of urgency. Education leading to better understanding of the convictions of others and to
tolerance should also be seen as an essential tool in this respect.
. . . . . . . 97
Report of the discussion: Mr Michael Head
Member and former Chair of the European Commission against
Racism and Intolerance
The discussions in Workshop II were interesting and stimulating. The participants were
very grateful for the assistance of the three panellists: Bissera Zankova gave a useful insight into self-regulation in the media field, Githu Muigai explained the close parallels
with the work of the United Nations and Finola Flanagan provided the relevant insights
contained in the recent report of the Venice Commission.
The participants began by asking themselves some very basic and perhaps rather obvious questions, namely:
‚ What is “hate speech”? How can it be defined? Where does mere offence end and
where does hatred begin?
‚ How can you measure its impact in terms of provocation and social damage?
‚ What is the role of the law? Up to what point can its use be justified and with what
safeguards, and how can it be effectively enforced?
‚ What are the alternatives if the law cannot be employed?
‚ Is some degree of appreciation inevitable in any national response to problematic
speech and, if so, what are the implications of this for the enforcement of international law?
‚ What are the implications of this set of issues for political leaders and for politicians
and their parties?
‚ And finally, what is “Plan B” – in other words, if every other safeguard fails what
mechanisms can be developed to deal with the resulting crisis?
The participants absolved themselves in advance from failure by recognising that
they were discussing intangibles to which there were no definitive answers. The Group
was essentially discussing how to reconcile the two paragraphs contained in Article 10
of the European Convention on Human Rights, which in one sense were conflicting but
in another sense complementary. However, the group came up with conclusions on at
least some of the issues.
Firstly, there was a general acceptance that, at least for the purpose of the criminal
law, “incitement to hatred”, whatever form it took, should mean something which
tended directly to harm individuals or groups either physically or through persecution
and harassment in all its various forms.
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REPORT OF THE DISCUSSION: MR MICHAEL HEAD
In this respect, the group found itself drawn into the issue of how the concept of hate
speech – most commonly used in a racial context – could be applied to religious defamation. It was particularly helpful to have Githu Muigai’s observations on the parallel
work of the UN’s experts on this issue. The group drew the lesson that, in this area, it
should generally be sufficient to rely on the proven route of simply penalising incitement to hatred. It felt that introducing into law a wholly new concept of religious defamation would lead into very difficult territory.
This led the group to making some fine distinctions between, for example, the expression of ridicule, of abuse and of criticism of belief and doctrine – all of which, although falling short of actual incitement to hatred, might in different circumstances
have serious consequences. The Group was reminded of the Venice Commission’s conclusion that religious groups cannot expect to be immune from critical public statements and debate.
The following is my personal observation, but in my view it reflects the sense of the
Group’s discussion. I believe that there is a strong case for further work in the appropriate organs of the Council of Europe on the whole definition of hate speech, not just in
the religious context, with a view to producing a text which captures the full complexity
of the concept.
On the issue of the scope of the law, it was the general view that there were clear procedural limits to the sorts of cases to which criminal sanctions should apply. There
should be clear criteria in terms of precision, certainty, enforceability and safeguards
against wrongful conviction; and the bar for prosecution should be set high enough to
exclude acts which fall short of direct incitement to racial violence and hatred. The
Group accepted that there would inevitably be a wide margin of national discretion over
what actually constitutes incitement in the circumstances of the particular case. As an
example can be mentioned the case of the new (2006) United Kingdom law on incitement to religious hatred which contains an explicit exemption, designed to protect freedom of expression, which would specifically permit insult, ridicule or criticism of a
religion.
This discussion led the Group directly into the even more uncertain area of what
constitutes acts of such a degree of provocation and offence that they call for a reaction,
even if of a non-legal nature. Perhaps inevitably, when searching for a test case, the
group found itself drawn into the incident of the Danish cartoons. The opinions on how
this had been handled were sharply divided and particularly on whether the publication
in question should or should not have been prosecuted for incitement to hatred. There
was a general view, however, that failing such a prosecution, the political leadership
should have reacted much more urgently and in a more appropriate manner to this delicate and complex issue.
This in turn led the group on to the observation that a more rigorous approach to
the cartoon incident could have been justified on the basis of the fear that they caused
in the Muslim community at large. There must be real concern about the way their publication reinforced the fears and stereotypes already present in the majority community.
Further discussion, however, was inconclusive on what might be done in cases such
as this where the publication was clearly problematic but where there was not a decisive
. . . . . . . 99
WORKSHOP II
case for a criminal prosecution. Decisions obviously have to be taken on a case by case
basis. Experience suggests, however, that, in any given case, there is a range of informal
options – including self-regulation of the media and awareness-raising measures – with
a view to reducing sensitivities and open debate involving members of the community
affected by an incident. This is not to say that other formal but non-criminal sanctions
do not exist. There are a number of possibilities. They include civil law remedies, restraints on publication and administrative fines. Such measures carry the obvious risk
of triggering proceedings under Article 10 of the European Convention on Human
Rights. Again, this requires a case by case analysis and no one can give any definitive
answer as to where this threshold lies. Issues relating to the legitimacy of the objective
and the proportionality of the measures taken come to the fore here. Perhaps, just as
Malcolm Evans has done in his manual, prepared on the request of the Council of Europe, on the Wearing of Religious Symbols in Public Areas, we should be thinking, in this
difficult field, of providing decision-makers with a check list of the basic principles and
policy considerations that ought to be taken into account, in the light of the jurisprudence of the European Convention on Human Rights, before national authorities reach
conclusions on how to respond to a particular incident. Perhaps this is another task for
one of the appropriate bodies of the Council of Europe.
There was universal agreement within the Group, however, that the fight against
hate speech depends fundamentally on much more than the existence of legal or nonlegal restrictions. This is a matter for society as a whole. It requires firm Government
action across the range of policies affecting the social and economic position of ethnic
and faith groups and their relationship with the majority community. It requires also a
strong and vigilant civil society. This in turn calls for sustained political will. Without
that we are condemned to dealing with symptoms rather than causes.
One conclusion, therefore, is impossible to avoid. The sensitive policing of the
boundary between legitimate freedom of expression and the measures needed to fight
expressions of violence and hatred demands not just a social consensus but also political leadership and courage of the highest order. In the present situation that is needed
more than ever.
And that must be our most urgent message.
100 . . . . . .
WORKSHOP III
EXERCISE OF THE RIGHTS TO FREEDOM
OF ASSOCIATION AND PEACEFUL ASSEMBLY
BY PERSONS AND GROUPS WITH VARIED
IDENTITIES: HOW TO ENSURE PROPER PUBLIC
PARTICIPATION?
Mr Michael Hamilton
Transitional Justice Institute, University of Ulster, Secretary to the
OSCE/ODIHR Panel of Experts on Freedom of Assembly
Ensuring public participation: freedom of peaceful
assembly and the demands of pluralism
Even entirely peaceful assemblies can impact upon others who wish to use the same
space for different purposes. This clash of interests is often heightened because rallies,
demonstrations, parades and protests lend themselves to identity based struggles.1
Where competing claims to public space are made by persons distinguished on the
basis of their ethnic, cultural, religious, political, or sexual identity, the challenge facing
the police, local and state authorities, and the courts is potentially much more difficult.
In these circumstances, how is public space to be shared? What should be done when a
proposed assembly is liable to shock, offend or disturb another sector of the population? The answer very much depends upon how the notion of ‘public space’ is conceived. The regulation of who can assemble in what public space thus forms an
important strand in the construction of identity, and is often symbolic of inclusion or
exclusion on a macro-political scale.2
Clearly, freedom of peaceful assembly is only one of many uses of public space. A holistic approach to sharing such space might also necessarily entail the development of
policies and protocols in relation to the flying of flags, minority-language street signs,
and other such public manifestations of identity. This paper, however, focuses upon
how differing interpretations of the “right to freedom of peaceful assembly” can either
construct “public space” in a way that facilitates public participation, or narrow the conception of ‘public space’ and thereby unduly limit such participation. The regulation of
1. See, for example, Carl Stychin, “Celebration and Consolidation: National Rituals and the
Legal Construction of American Identities” (Summer 1998) 18 Oxford Journal of Legal
Studies 265-291.
2. Marches organised by the National Roma Authority in Budapest provide one recent
example. See further, Michael Hamilton, “We, the People: Freedom of Assembly, The Rights
of Others, and Inclusive Constitutionalism” in András Sajó (ed.), Free to Protest:
Constituent Power and Street Demonstration (Eleven International Publishing, 2009).
. . . . . . 103
WORKSHOP III
public assemblies can work to maintain or to challenge exclusionary hierarchies of
power.
The European Court of Human Rights has said that the State is the “ultimate guarantor of the principle of pluralism.”1 Frequently, though, municipal authorities argue
that the potential for disorder is heightened precisely because of identity-based differences, and that far-reaching restrictions on public assemblies are therefore necessary.2
An obvious example can be seen in the prohibitions imposed upon Gay Pride parades
in a number of countries (comprehensively documented by ILGA-Europe and others).3
On occasion, local authorities have also suggested that the imposition of restrictions on
public assemblies is in satisfaction of their positive obligation to protect the right to life,
or that a particular assembly, if permitted, would unreasonably interfere with the rights
of other persons (such as their right to freedom of thought, conscience and religion
under Article 9 of the European Convention on Human Rights).
Against this backdrop, I will focus on four specific areas in which concrete steps can
be taken to help ensure public participation to the fullest possible degree. First, the
State’s positive obligations in relation to freedom of assembly demand that the authorities look for ways of facilitating “shared space”. Second, if a rights framework is to contribute anything to establishing a level playing field, there is a need to develop a robust
approach to interpreting the “legitimate aims” (for which restrictions can be imposed
on freedom of assembly). Third, the decision making process itself should be transparent if parties are ever to have confidence in (or indeed, successfully challenge) the regulatory process. Finally, I briefly mention the contribution which the monitoring of
public assemblies can make to ensuring that public space is regulated in an equitable
and proportionate manner, and that lessons are learnt for future events.
Positive obligations and understanding public places
as shared places
Article 11 of the European Convention on Human Rights protects the right to freedom
of association and peaceful assembly.4 In interpreting this provision, the European
1. Baczkowski v. Poland (2007) at para. 64.
2. Note, however, that “Contracting States enjoy a certain but not an unlimited margin of
appreciation” (e.g. Ashughyan v. Armenia, 2008, para. 89). Significantly though, in Stankov
and the United Macedonian Organisation (ILINDEN) v. Bulgaria (2001), the European
Court of Human Rights rejected the Bulgarian government’s assertion (para. 73) that a
wider margin should be granted because, inter alia, “tensions between cohabiting
communities … were particularly explosive.”
3. See, for example, ILGA-Europe: Lesbian, Gay, Bisexual and Transgender Rights: Freedom of
Assembly: Diary of Events by Country (August 2008). Also, M. Hamilton, Explanatory
report on “Freedom of assembly and expression for lesbian, gay, bisexual and transgendered
persons” and the related recommendation and resolution, September-November 2006.
Other relevant examples from the case-law of the European Court of Human Rights include
Ouranio Toxo and others v. Greece (judgment of 20 October 2005); Kuznetsov and others v.
Russia (Application no. 184/02, judgment of 11 January 2007); and Barankevich v. Russia
(Application no. 10519/03, judgment of 26 July 2007).
104 . . . . . .
MR MICHAEL HAMILTON
Court of Human Rights has established important parameters for both the enjoyment
and regulation of the right. A number of positive obligations upon the State can also be
inferred from the Court’s jurisprudence.1 Given that the authorities can potentially inflame or exacerbate a tense situation by their actions,2 it is vital that the police, local officials and judges (amongst others) be trained in human rights standards and have
access to translations of relevant case law (or, at least, case summaries).
Fundamentally, the European Court of Human Rights has held that “[a] demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote.”3 Furthermore, “[i]t is of the essence of democracy to allow diverse
political projects to be proposed and debated, even those that call into question the way
a State is currently organised”,4 and “[i]t would be incompatible with the underlying
values of the Convention if the exercise of Convention rights by a minority group were
made conditional on its being accepted by the majority.”5
Since the European Convention on Human Rights establishes only a minimum baseline in terms of rights protection – a floor rather than a ceiling – the recent publication
by the OSCE (and subsequent endorsement by the Venice Commission) of Guidelines
on freedom of peaceful assembly (2007) provides important interpretative guidance with
a view to preventing discriminatory, arbitrary or illegitimate restrictions. These guidelines emphasise that “[t]he state’s duty to protect peaceful assembly is of particular significance where the persons holding, or attempting to hold, the assembly are espousing
a view that is unpopular, as this may increase the likelihood of violent opposition.”6
4. See also: Article 7, Framework Convention on the Protection of National Minorities (1995);
Article 3 (1), United Nations Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities (1992). References to these and other relevant
provisions can be found in paras. 52-53 of the OSCE-Venice Commission Guidelines on
freedom of peaceful assembly (2007). Note also that Article 22 of the European Union
Charter of Fundamental Rights stipulates that “the Union shall respect cultural, religious
and linguistic diversity”.
1. “Genuine, effective freedom of peaceful assembly cannot … be reduced to a mere duty on
the part of the State not to interfere: a purely negative conception would not be compatible
with the object and purpose of Article 11 [ECHR] … Article 11 sometimes requires positive
measures to be taken, even in the sphere of relations between individuals, if need be.” See,
for example, Plattform Ärzte für das Leben v. Austria (1988) at para. 32; Oya Ataman v.
Turkey (2006) at para. 36; Balcik and others v. Turkey (2007) at paras.46-47.
2. See, for example, Ouranio Toxo and others v. Greece (Application no. 74989/01, judgment of
20 October 2005, at para. 42). See also Rufus Osmani v. “the former Yugoslav Republic of
Macedonia”.
3. Plattform “Ärzte für das Leben” v. Austria (1988). See, more generally, the Handyside
judgment; Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 22, para. 42. I
have argued elsewhere, however, that appeals to democracy too often reflect majoritarian
priorities. See M. Hamilton, “Freedom of Assembly, Consequential Harms and the Rule of
Law: Liberty-limiting Principles in the Context of Transition”’ 27 (1) Oxford Journal of
Legal Studies (2007) 75, pp. 84-86.
4. Freedom and Democracy Party (Özdep) v. Turkey (1999).
. . . . . . 105
WORKSHOP III
A robust approach to interpreting the “legitimate
aims”
A rights framework clearly therefore conceives of ‘public space’ as ‘shared space’. However, the legitimate aims listed in the limiting clause of Article 11 of the European Convention on Human Rights, still leave open broad areas of interpretive discretion in
relation to public order, public safety, national security, public morals, and the rights
and freedoms of others. The potential for arbitrary interferences thus remains, even
within a human rights framework.
The OSCE/Venice Commission guidelines note, for example, that the inherent imprecision of the term public order must not be exploited to justify the prohibition or dispersal of peaceful assemblies, and propose the application of a “clear and present
danger” test.1 The guidelines also regard content regulation – where restrictions are
based solely on the message or views being conveyed – as an unjustifiable incursion on
freedom of peaceful assembly.2
In relation to restrictions putatively imposed for the protection of morals, the
OSCE/Venice Commission Guidelines state:
not only are the main human rights treaties (the ICCPR and ECHR) “living instruments” and thus attuned to changing moral values, but the moral views of the
holders of political power are not synonymous with public morals as intended in
this context as a premise for limiting freedom of assembly.”3
Arguably though, the most subtle threat to freedom of assembly comes not from the
egregious abuses of discretion that capture news headlines, but from the routine, and
ostensibly rational, recourse to public or governmental interests such as ensuring the
free passage of traffic, preserving community relations, or ensuring social cohesion.
These apparently laudable aims can conceal attempts to neutralise the public sphere.
5. Barankevich v. Russia (2007) at para. 31. There is also the question of how assemblies
organised by majority groups should be regulated where these potentially impinge upon
minorities. The European Court of Human Rights has held that avoiding abuse of a
dominant position may be a relevant factor (see, for example, Gorzelik and others v. Poland,
Grand Chamber, 2004, at para. 90).
6. OSCE/Venice Commission Guidelines, para. 28. See also Christians Against Racism and
Fascism v. the United Kingdom (1980): “[T]he possibility of violent counter-demonstrations,
or the possibility of extremists with violent intentions, not members of the organising
association, joining the demonstration cannot as such take away that right …” See further,
Ezelin v. France (1991); Ziliberberg v. Moldova (2004).
1. OSCE/Venice Commission Guidelines, at para. 63. Cf. for example, the grounds relied upon
by the Bulgarian authorities in Ivanov and others v. Bulgaria (Application no. 46336/99,
admissibility decision of 9 September 2004, and judgment of 24 November 2005): the
assembly would “create conditions for breaches of public order”.
2. See, for example, Guidelines, paras. 39, 74, 95 and 135.
3. Guidelines, para. 67.
106 . . . . . .
MR MICHAEL HAMILTON
Perhaps the most common reason cited for restricting public assemblies is the
claimed need to facilitate the free passage of others (and this was demonstrated recently
in the case of Patyi and others v. Hungary, 2008). Reliance on this “free passage” argument, however, constructs “public space” as being primarily for vehicular and pedestrian “traffic”. As Nicholas Blomley has argued:
Traffic logic serves to reconstitute public space in important ways. Public space is
not a site for citizenship, but a transport corridor. Legal battles, often reliant on
claims to rights, are reframed as collisions between forms of traffic. Speech and expression, for example, become reconstituted as blockage and flow.1
This logic reduces the user of public space to a mere “traffic participant”.2 In this regard, it should be emphasised that the incursion into public space by public assemblies
is usually a temporary incursion, and inevitably entails some interference with the activities of others.3
Given that the right to freedom of peaceful assembly can be restricted to protect the
rights and freedoms of others, it is important to emphasise that the various rights potentially engaged often have a high threshold which must be met before they are actually engaged in a specific situation. On this basis, there is a need to articulate more
clearly what are the factors that authorities should take into consideration when assessing whether or not an assembly might impact on particular rights of others.4
Transparent decision-making
Implicit in what I have said thus far is that part of the problem lies with vague legislative,
or indeed Constitutional, provisions, the meaning and scope of which are contested,
and which confer far-reaching discretionary powers on officials. As such, they enable
the imposition of pre-emptive and often arbitrary restrictions upon fundamental rights.
This is not to suggest that discretion is necessarily a bad thing, but rather to note the
importance of the application of the principle of proportionality.5
The European Court has emphasised that the reasons for any restrictions must be
both relevant and sufficient,6 and that “the containment of a mere speculative danger, as
a preventive measure for the protection of democracy, cannot be seen as a ‘pressing
1. Nicholas Blomley, “Civil rights meet civil engineering: urban public space and traffic logic”
22 (2) Canadian Journal of Law and Society 55-72, at 64 (2007).
2. Fryslan Province, Shared space: room for everyone (2005). Available online: http://
www.shared-space.org/files/14445/SharedSpace_Eng.pdf at 13.
3. See, for example, Ashughyan v. Armenia, 2008 at para. 90; also Balcik v. Turkey, 2007 at
para. 52.
4. See further, Hamilton, supra, note 2.
5. Compare, for example, Éva Molnár v. Hungary (2008) (no violation of Article 11) with Patyi
and others v. Hungary (2008) (violation of Article 11). The least intrusive means of
achieving the legitimate objective being pursued by the authorities should always be given
preference. The forceful dispersal of assemblies may only be a measure of last resort.
6. See, for example, Vajani v. Hungary (2008) at para. 55.
. . . . . . 107
WORKSHOP III
social need’”. However, in order to be able to test whether the reasons adduced by the
authorities are relevant or sufficient, those subject to restrictions must be told of the
reasons for their imposition, and must be able to challenge the empirical accuracy of
those reasons.1 The OSCE-Venice Commission Guidelines state (para. 43):
Procedural transparency should ensure that freedom of peaceful assembly is not
restricted on the basis of imagined risks or even real risks that, if opportunities
were given, could be adequately reduced prior to the event.
Monitoring public assemblies
Finally, guidelines are nothing unless they are implemented. The training and deployment of monitors2 at particular assemblies is something which organisations like the
Council of Europe and the OSCE, and indeed member states themselves, could resource and support. As the OSCE-Venice Commission Guidelines emphasise:
The monitoring of assemblies can provide an impartial and objective account of
what takes place, including a factual record of the conduct both of participants and
of law enforcement officials. While the primary responsibility to promote and protect freedom of assembly lies with the state, NGOs play an important role in furthering the cause of human rights. Human rights defenders should therefore be
permitted to operate freely in the context of freedom of assembly.3
1. Note that in order to properly assess whether restrictions are indeed proportionate, it may
be necessary for the courts to have sight of the evidence upon which local authorities relied.
2. For the purposes of the Guidelines, monitors are defined as “non-participant third-party
persons or groups whose primary aim is to observe and record what is taking place”.
3. Guidelines, at para. 163. See also, for example, Dominic Bryan and Neil Jarman,
Independent intervention: monitoring the police, parades and public order (Democratic
Dialogue, Northern Ireland, 1999).
108 . . . . . .
Report of the discussion: Ms Nina Belyaeva
Member of the OSCE/ODIHR Panel of Experts on Freedom of
Assembly
Group experience
Group III assembled about 20 participants representing twelve countries: Bosnia and
Herzegovina, Croatia, Estonia, Greece, Ireland, Latvia, Monaco, the Netherlands, Romania, Russia, Switzerland and the United States – each country having a unique experience in regulating the freedom of assembly and association.
There was a good interaction in the group with everyone contributing. Several
rounds of questions and comments took place in the course of two hours and a serious
discussion was held on the problematic issues arising from practical experience of implementing these important rights in different countries having their own specific cultural and legal environment.
The two main speakers within the Group were Sanela Bešić from Bosnia and Herzegovina and Michael Hamilton from Ireland. Sanela Bešić, representing the Council of
Roma People, focused on the freedom of association and described the use of this right
by the Roma people represented in more than a dozen Roma NGOs in Bosnia and
Herzegovina. A major problem – though far from being solved – is access to material
resources since they have to compete for funding with more experienced and welltrained associations which have better opportunities when applying for various grants
both within the country and abroad. The other issue she raised was the proper political
representation of the Roma people as they often are not invited when their rights are
being discussed or means of support appropriated. Many institutions making decisions
on behalf of the Roma people are too “far away” from the Roma community. A solution
might be to include representatives of minorities among the staff of these policymaking institutions so that they are better able to establish communication between the
Roma people and the authorities.
Second speaker, Michael Hamilton, representing the OSCE/ODIHR Panel of Experts on Freedom of Assembly, focused on four problematic issues: a. better understanding of what constitutes the “public space” relating to the physical environment
where assemblies are held; b. misinterpretation of “rights of others” when it comes to
grounds for restricting the freedom of assembly; c. transparent decision-making re-
. . . . . . 109
WORKSHOP III
garding the regulations of assembly – “who actually makes the decision?”; and d. the
need for rigorous monitoring of assemblies.
The point that really caught the attention of the Group was “who makes the decision” which includes the question of which institution is given authority regarding the
practical implementation of these rights in different countries. The Group held a tour
de table with participants stating which body has authority in their country to a. register an association (if any registration is needed at all) and b. make the decision, based
on the national legislation, of whether to allow or prohibit a public assembly. This
proved to be a very educational exercise since the participants learned about very diverse practices of regulating associations and assemblies and that the authority responsible for implementing these rights can be invested either with the executive or
legislative powers, courts or even be given to community-based Parade Commissions
which are not even governmental organs, but citizens-driven initiative although authorised by Government to administer parades, demonstrations and other public
events.
During the course of these “country presentations” other important points were
raised which were later reflected upon in the discussion and which the group referred
to as “painful issues”.
Painful issues raised during the discussion
‚ Switzerland: Whether the concept of nation-state is best suited for contemporary
societies that are very diverse ethnically? How well do the Constitutions recognise
multiculturalism? Do the existing texts ensure the embracement of multi-cultural
attitudes?
‚ Greece : What policy is most suited with respect to demonstrations of nationalist or
other extremist character – banning them, provoking controversy or allowing them
to happen quietly, thereby also contributing to broadening the marketplace of ideas.
‚ Monaco: Nationals forming a nation state can at the same time constitute a national
minority within their own country. This situation may lead to different set of issues.
‚ Netherlands: Rights and freedoms overlap and reinforce each other: both the freedom of assembly and the freedom of association serve to consolidate and advance
minority groups and they constitute an important “tool of emancipation” for minority groups. These rights contribute to the promotion of more equality for minority
people, advancing them, making their voices heard and recognising their needs.
‚ Latvia: Forming political parties is also exercising the right to freedom of association
since it gives minorities an extra channel for their voices to be heard and serves as a
tool for political representation. It is important that parties are allowed to raise and
advocate national rights issues, but it is dangerous if they restrict their membership
to only one particular nationality.
‚ Northern Ireland: Reasons for restricting the freedoms of association and assembly
are sometimes “artificial” as they relate to “public order” or the “rights of others” in
very general terms, even when those rights appear not to be threatened at all.
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REPORT OF THE DISCUSSION: MS NINA BELYAEVA
‚ Russia: When restrictions are about “protecting morals” it is important to look at
what these morals actually are about since some common morals might be based on
intolerance, aggressiveness or attitudes which represent misperceptions and prejudices. Morals themselves often need to be changed so that they do not serve as a
basis for legitimately restricting the right to freedom of assembly.
Recommendations
In order to move ahead to the next step to secure the right to freedom of assembly and
association, all parties concerned – be it legislators, executives, judges, police and other
law-enforcement officials as well as social leaders, human rights activists and the media
– should be guided by some important principles that can bring about very specific results:
Inclusion
Ensure that all types of minorities are included in the decision-making process – both
at the local, national and international level – concerning all issues that affect their
rights, freedoms and opportunities provided by legal regulations and policy decisions.
It should be a rule that NO minority rights question – whether racial, ethnic, religious
or sexual preferences – be discussed or decided upon WITHOUT the presence of the
representatives of the minority concerned.
Access to the media
Observe the role that mass media play in covering issues concerning the freedom of assembly and association in two ways:
‚ promote the existence of regulations which ensure minorities the right of access to
the media so that they can voice their concerns and ensure that such a practice is implemented. Monitor how much time national minorities are given on the local or national television and how much space is devoted to and provided for them in the
printed media;
‚ the media themselves should act responsibly while covering issues concerning minorities in order not to provoke violence, quelling national tensions rather than provoking them.
Monitoring
Ensuring the freedom of peaceful assembly requires regular monitoring activities to be
carried out by specifically trained teams. It is therefore very important to set up certain
monitoring structures or institutions – both governmental and non-governmental –
which need to be trained. Example of Parades Commissions in Ireland composed of
community members representing different ethnicities and religions in order to work
together on how to use the public space for the public benefit. Other countries can learn
. . . . . . 111
WORKSHOP III
from this example and train people on how to monitor the exercise of peaceful assembly.
Responsibility
Promote responsibility of local authorities and the police in organising inclusive and
democratic processes to deal with associations and assemblies. It often happens that
local authorities ignore the problems or leave them non-resolved with the result that
the problems are moved to the upper-level authority and even as far as ending as cases
before the European Court of Human Rights. But by the time the decisions are made in
Strasbourg (sometime several years later) it might be too late. Problems should therefore be resolved at the local level and in a timely manner.
Interconnectedness
Recognise and reinforce the interconnectedness of these two basic rights – the freedom
of assembly and the freedom of association – as they reinforce each other providing an
excellent “emancipation tool” for the advancing of minority groups. This REINFORCEMENT should be institutionalised through closer co-operation between different European institutions working on manuals, guidelines, white papers and policy
recommendations.
Institutional co-operation can also be ensured through expert exchange (by appointing experts representing one body to another body) and joint working groups, etc. This
could help achieve more consistency in the texts, whenever appropriate. For example,
the OSCE/ODIHR Panel of Experts on Freedom of Assembly has defined “public space”
for the purpose of the Panel’s Guidelines while the Council of Europe Manual on the
wearing of religious symbols in public areas also address this question. It may be that a
different understanding of “public space” is appropriate for different issues, but it would
at least be worth discussing such issues further.
For the various manuals and guidelines it might also be useful to apply an interdisciplinary approach combining legal, social and cultural approaches.
Research
In order to clarify to what extent the existing Constitutions of Council of Europe
member states recognise multi-culturalism as a guiding principle in a modern democratic state, the Working Group voiced the idea of the Venice Commission conducting
a comparative constitutional study to look into the wording of national constitutions to
determine to what degree they recognise the rights of minorities and in which way they
approach or mention the issue of cultural and ethnic diversity and guarantee the rights
112 . . . . . .
REPORT OF THE DISCUSSION: MS NINA BELYAEVA
of national minorities. The group believes that such a study would draw attention to this
issue.
Training
Much of the problem relating to the exercise of freedom of assembly and association is
due to a lack of democratic culture and experience which cannot change without access
to information and training.
Countries that have capacity and experience in democratic processes as well as institutions should provide such training for countries that need to learn from such experience. As such training at the intergovernmental level can only be carried out upon
request and cannot be successful without mutual interest and close co-operation, countries in democratic transition should be encouraged to raise such requests whereas
international institutions should be open to provide support for such training.
. . . . . . 113
INTRODUCTION (SECOND DAY)
Mr Philippe Boillat
Director General of Human Rights and Legal Affairs of the Council of
Europe
It is both a pleasure and privilege for me to open the second day of work of our conference on “Challenges and perspectives of human rights in culturally diverse societies”. As
an introduction to today’s meeting, I would like to provide you with some personal observations regarding an event that took place in Lisbon at the beginning of this week
(10-11 November 2008), relating to a similar theme to that of this Hague Conference.
This event, the Lisbon Forum, was organised by the North-South Centre of the Council
of Europe, which is based in Lisbon, and by the Alliance of Civilizations of the United
Nations, whose President is Mr Jorge Sampaio.
This extremely interesting forum focused on the principle of universality of human
rights, 60 years after the proclamation of the Universal Declaration of Human Rights,
and on the implementation of these rights through regional mechanisms. You will easily
notice a certain number of links between the issues explored at the Lisbon Forum –
concerning the universality of human rights – and the present conference which aims
at examining the problems, challenges and perspectives which human rights generate
in culturally diverse societies.
The debates held during the Lisbon Forum were very rich and even very animated
at times. The first remark that can be made is that although the implementation of the
rights and freedoms is proclaimed and recognised as being universal in the Declaration
of Human Rights it is far from being effective. Why is this so? All five continents were
represented at this important event. It would therefore seem that the main obstacles
preventing the recognition and effective implementation of human rights at the global
level are extremely diverse. This is due to cultural, social, political and economic factors
– in some cases geopolitical ones.
It is understandable that for some countries, particularly those in Africa and Asia,
these obstacles are very real and that due to their particular situation they find it difficult to implement human rights and freedoms, such as those contained in the Universal
Declaration, in an efficient and effective manner. But I still believe that it is, now, more
than ever, important to affirm the universal character of these freedoms and to regard
the difficulties that stand in the way of their effective implementation as temporary ob-
. . . . . . 117
INTRODUCTION (SECOND DAY)
stacles that may be overcome and not to use them as long-term reasons for questioning
their universal nature.
Another issue which emerges from the discussion at the Lisbon Forum is the opposition between individual rights and collective rights. The Europeans have been accused of having insisted too much on the individual character of human rights, and for
having forgotten social, economic and cultural rights. Even if it is true that the Universal
Declaration is based on the individual character of human rights and not primarily on
their collective character, this criticism is not without any grounds. However, I think
that it would be a serious mistake to call into question the universality of human rights
on the basis of the fact that their indivisibility is not always fully recognised. We should
reassert that these rights are not only universal but also interdependent, meaning that
they are complementary to each other. They form a whole and are indivisible.
The collective character of rights is also obviously relevant in Asian countries where
collective rights take priority over individual rights. The priority is first to ensure the
survival and welfare of the community as a whole, which may include several millions
or even over a billion people, before dealing with the rights of the individual. Such an
approach is of course understandable, yet it must be perceived as temporary. The universal character of individual rights must not be denied even where the priority lies in
ensuring the survival of over a billion people.
The greatest risk with which we are confronted is probably that of “regionalisation”
of human rights and cultural relativism. In other words, “what is considered a right in
your country may not necessarily be a right in our country and vice versa”. It is true that
we have been aware of this risk for a long time, but I have the feeling that, unfortunately,
it is becoming more common.
Platforms for exchanges of views, reflection and mutual enrichment, such as the
Lisbon Forum, are essential today, not only at the regional level, which is the case within
the framework of the Council of Europe, but also at the interregional and universal levels. Likewise it seems to me that such dialogue must take place on an equal footing and
be based on the principle of mutual respect for the identity of the other. Europeans must
not pass for know-it-alls, which is the impression that we sometimes appear to be giving. We may have the right and, I might add, duty to proclaim our convictions and to
state our values, but we should do this without “moralising”. The dialogue should be envisaged in full respect of one another.
118 . . . . . .
THE WAY FORWARD – LIVING
TOGETHER AND RESPECTING
DIVERSITY
Mr Tariq Ramadan
Professor of Islamic Studies, Visiting Professor of Citizenship and
Identity at Erasmus University Rotterdam, Senior Research Fellow at
Oxford University
Thank you for inviting me to participate in this conference!
When speaking about the way forward, living together and respecting diversity, I
prefer to go straight to the point. Having listened to the discussions in the workshops,
I think we need to distinguish between facts and figures, perceptions and legislation.
There seems to be some overlapping between the dimensions, but there also appears to
be a great deal of confusion when speaking about these issues. In my presentation I
would like to start from the bottom and focus on my experience at the grass-root level,
and then move up from the bottom to the consequences within the different dimensions, i.e. the fields and domains that should be the priorities in our work, through
which we can change, not only the perceptions, but also the way in which we ensure the
implementation of legislation.
What we are facing today at the grass-root level is less of a legal problem than a problem of perception and mistrust. Having travelled through Europe – including Britain
after the terrorist attacks of 7 July and France – and now working with the municipality
of Rotterdam, I find that many people believe that we are facing legal problems, but in
fact when looking at the facts and figures there are few such problems. What is creating
problems are rather the perceptions. In order to understand the reality, we need to look
at the facts and the figures and we then realise that legal answers are not the solution to
the problems. Problems cannot only be expressed in facts and figures; they stem rather
from the perceptions we have – in the form of mistrust – and this mistrust is an important issue.
If you want to deal with human rights and with dignity of people, then you should
concentrate on perceptions since negative perceptions by one person may undermine
the dignity of another. The psychological dimension is often an important aspect in the
protection of human rights and in respecting diversity. When we speak about law for
example, some people may find something unacceptable for themselves, but not in relation to others. Here, the perception you have of people may determine the way you
read the law; if you trust people you read the law inclusively; the law is for “us” as a
group. If you mistrust people, you will read the law in a way so as to protect yourself
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from the possible harm that persons may do to you or to society as a whole. We use the
law to create another group “them” from whom we have to protect ourselves. In my
opinion this is really quite an important point. We create an environment of “us” against
“them”. Today, this happens at the local as well as at national level.
Having established this connection between perceptions – mistrust – and the legal
dimension, we have to look at how the laws and the State’s rules are enforced. Imagine
moving upwards from the grass-root level towards an analysis of reality, in the middle
dimension we encounter problems in relation to the enforcement of the law. One example of this problem is the issue of neutrality. What is perceived as “neutral” within the
public sphere? When we see a Christian church in the street, it is conceived as neutral
in the sense of it being normal. There are politicians in my country, Switzerland, who
claim that when you build a mosque, you are challenging the neutrality of the public
sphere. Here the problem is not the law but perception. You think it is neutral because
you are used to it. But what you have to understand is that our societies have changed
so as to include a broader diversity of religious and ethnic groups and they all have equal
rights. An obvious consequence of this is the expression of such diversity within the
neutral public sphere. It is thereby to be understood that diversity does not mean that
the public sphere is becoming less neutral. In fact, diversity is more normal because it
better represents our current society. I stress this point as particularly important when
considering the public sphere and the concept of neutrality. It is an example of law enforcement based on the enhanced perception of what our societies are today.
Moving up further we arrive at a dimension which is less legal and more psychological. This morning, we heard about the activities of the Quebec Consultation Commission on Accommodation Practices and I was very interested in these activities and how
they are carried out, especially the open dialogue activities where everyone can speak
publicly about negative perceptions of immigrants in Quebec. I consider the Commission’s work as a model of good practice which promotes transparency, open discussion,
open dialogue and expression. We should try to promote similar models all around Europe. Let people engage in discussions; they cherish democratic values more than we
might think. At the grass-root level, this aspect of democracy – communication – will
lead to change. It is, in fact, we, rather then the immigrants and indigenous people, who
believe that time is not ripe for open discussion. But actually people are ready to talk,
they are ready to listen and ready to participate if only we have trust in them. We have
to believe in the attractiveness of democratic values and realise that people actually are
attracted by them, and that they know what freedom means. If you look at facts and figures the great majority of the so-called “new citizens” can be characterised by the four
Ls: a. they are Law abiding, b. they master the Language, c. they are Loyal to the country
and d. they know the meaning of Liberty.
Facts and figures are telling us that this is the situation today. Our idea of what is
happening at the local level is far behind reality and I am not being overly optimistic
here; I have been working in this field for the past twenty years and I can assure you that
what is happening is a silent revolution. The revolution of society that has happened in
Canada is happening here and all over Europe.
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The reason why I am making this point is because at the highest level, we speak
about equal rights. However sometimes, at other levels, when people are claiming their
rights, it is perceived as if they were asking for minority rights; but we have to understand that this is not the case. Take, for instance, the Sharia law and what we have discussed about it. I myself am against the Sharia law because I do not think that Muslims
need it. But when listening to the arguments of others who are against it too, it seems
to me that they would accept special laws for some religions but not for others. When
Muslims ask for equal rights, they are asking to be treated like everyone else but we perceive it as if they were asking for specific rights. A negative strategy will then be applied
with the view of banning Sharia law for everyone. This is exactly what I would like to
point out: If we speak of “equal rights”, we should mean it. The concept of “equal rights”
implies that all of us – whether religious, non-religious, atheist, etc. – enjoy the same
rights and this is very important.
With regard to sensitivity, we should be able to understand that there needs to be a
certain degree of sensitivity in intercultural dialogue and hate speech is not enough.
This does not mean that we have to accept a Muslim person saying: “I will not tolerate
any critical comments against my religion”. Muslims will have to accept criticism against
their religion. But at the same time, we have to understand that there is a certain degree
of sensitivity that must not be overstepped; and the understanding of this and such
practice cannot be achieved by law, but only through public discussion and intercultural
dialogue. Take myself as an example. In France, I have been prevented from speaking
twenty-four times in the past two years. Is this “freedom of speech”? In France, there are
some people who are more free than others to speak. So let us conclude that, rather than
merely idealising equal rights in theory, it is really up to the way we deal in practice with
the problems at the grass root level.
Before arriving to the end of my presentation, I would like to clarify: At the bottom,
we have facts and figures, then we arrive at the perceptions – mistrust – and this mistrust is having an impact on the way we implement the legal dimension, our legislation.
And thirdly, there is the psychological dimension, a problem that also needs to be resolved. In all we have three domains, or rather priorities, on which we need to focus.
The domains are concomitant. We therefore need a concomitant policy and strategy.
We have to work on all three levels and not speak only about human rights in the legal
dimension but also the perceptive and psychological dimension. We have to work on
the trust among citizens if we want to achieve the respect of human rights for all and by
all.
We should also work on education. In education there are three aspects which are
particular important: First the teachers. We need teachers from all sorts of backgrounds
and not only white teachers who say they respect diversity. There should be a policy to
have teachers from different countries as it represents the situation of the future. If you
see teachers from different backgrounds, you will realise that this is a reflection of your
country and society. This is not the case if all teachers are white. So actually teachers are
the very substance of what I have been talking about, because at the end of the day, we
have to ask ourselves what is being taught as “neutral” in schools, starting from the
clothing of teachers and pupils.
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The second important aspect regarding education is that of the schools themselves.
In the schools children develop the idea of what is neutral. I myself went to a secular
public school and I believe that such schools represent what neutrality is today. I would
like to see all students together in public state schools. At the moment, there are special
schools, such as religious schools, as our society suffers from social segregation. We
divide schools into urban schools and city schools teaching children from different
social classes apart from each other according to the policy: “Let us come together”. But,
in fact, there is no “together”. The reality is that our urban policies are not promoting
the idea of living together. Instead we have second-class schools and we have segregation. We need policies in this respect. The third point in relation to education is the
school curriculum. We need to teach a common history of memories and we must not
neglect the history of the people who are now building our societies. So we need to work
on our curriculum on the basis of an official voice claiming: “This is your country and
we respect your memories because this is the way we build our common history.” This
is not an easy task to realise but it could certainly help change mentalities.
We also have to work on the media and everything that has to do with perception.
At this point please recall that the reaction among Muslims in Europe to the Mohammed cartoons was mainly positive in the way that it was not emotional. This should not
be forgotten. You should not take people in Pakistan and speak of them in the same way
as the people who live in your country as citizens. Before anything else look at the Muslims and their reactions, for example in the Netherlands, after the publication of Wilder’s film Fitna on the Jihad. The citizens actually reacted very wisely by not reacting at
all. So we have to understand that there is a change among the Muslims and in the right
direction.
We also have to work on an equality policy against discrimination and racism on the
job markets. We will never be able to achieve equality if socio-economic problems are
culturalised and Islamised. You have citizens who are faced with discrimination on the
job market, but this has nothing to do with religion. If someone is confronted with a
problem on the job market, you cannot say to this worker, “You are Christian, you are a
Jew, you are an atheist”. Very often we culturalise the problems. Muslims are wrong
when they do it, but society is wrong in accepting and nurturing it and I believe this is
a problem.
The last point I should like to make is that in the future we have to stop talking about
integration. I repeat this point over and over again, the success of integration is to stop
talking about integration. As long as you continue to talk about integration you are
putting people outside “us”. I prefer to speak about contribution and participation and
to promote creativity, cultural diversity and equal policy towards diversity.
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Ms Mominat Omarova
Chairperson of the Steering Committee for Equality between Women
and Men
The aims of the Council of Europe are to promote democracy, human rights and the
rule of law, through the development of common standards for its member states in response to their political, social, cultural and legal challenges, and to promote awareness
of a European identity based on shared values and cutting across different cultures and
create an area of democratic security.
The consideration of equality between women and men is the responsibility of the
Steering Committee for Equality between Women and Men (CDEG). The work of the
CDEG is carried out on the two following premises: gender equality is an integral part
of human rights and gender equality is a fundamental criterion of democracy. Since its
creation the activities of CDEG has been focused on setting up European gender equality standards and developing strategies and tools to promote de jure and de facto gender
equality.
During their 3rd Summit (Warsaw, 16-17 May 2005), the Heads of State and Government of member states of the Council of Europe declared that European countries
have today overcome painful divisions and have enlarged their area of democratic security, but that they were concerned by unresolved conflicts that still affect certain parts
of the continent, putting at risk the security, unity and democratic stability of member
states and threatening the populations concerned.
Gender equality is one of the conditions which contribute to European democratic
security. For many years now the Council of Europe has sought to promote the balanced
representation of women and men in the political and public decision-making process,
considering that balanced participation of women and men in political and public decision making, in particular as regards conflict prevention and resolution and in peace
building, is a matter of full enjoyment of human rights and a necessary condition for the
better functioning of a democratic society. During the 4th European Ministerial Conference on Equality between Women and Men (Istanbul, 1997), the European Ministers
adopted a Declaration on gender equality as a fundamental criterion of democracy.
Gender equality can make real progress only in a society which seeks peaceful solutions to conflict. For this reason, for many years now, the work of the CDEG has been
aimed at promoting the equal representation of women and men in the political and
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public decision-making process. That process clearly includes decisions concerning
conflict prevention and resolution and peace building.
As regards participation of women in conflict prevention and resolution and peace
building, this theme was taken up by the Council of Europe, in view of specific situations occurring in some regions of Europe. The 5th European Ministerial Conference
on Equality between Women and Men (Skopje, 2003) on “Democratisation, conflict
prevention and peace building: the perspectives and the roles of women” paid special
attention to the issue of intercultural and interreligious dialogue in relation to conflict
prevention and peace building. The drafting of an instrument in this field was recommended by the European ministers who participated at the conference as they considered that such a regional instrument would be a useful complement to the United
Nations Security Council Resolution 1325 (2000) on Women, Peace and Security.
As a follow-up to the Conference, a Report on the role of women and men in interreligious and intercultural dialogue for conflict prevention, for peace building and for
democratisation was prepared by a group of specialists whose task had been to take
stock of the situation and propose follow-up action. The group concluded its work by
recommending that the Council of Europe draft guidelines for member states on the
promotion of women’s participation in conflict prevention.
The main aim of the Group of Specialists on the role of women and men in conflict
prevention and resolution and in peace building, in charge of drafting the recommendation, was to study women’s participation in conflict prevention and resolution and in
peace building in member states of the Council of Europe and to give more visibility to
this issue. In this framework, the Group also examined the role of women as active
actors in the reconciliation post-conflict reconstruction process as well as the need of
increasing the number of women in decision making at all levels of society. It also considered the need to set up peaceful behaviour between communities, and to re-establish
peaceful human relationships through reconciliation, instead of concentrating only on
the public sphere in the reconstruction of society after a conflict, and thus improve the
opportunities to solve conflict in a non-violent way for the interest of the whole society.
This is the background of the decisions of CDEG to put the promotion of intercultural and interreligious dialogue and the role of women and in conflict prevention, solution and peace-building on the agenda. Here are highlights of the ideas represented
in the mentioned report and the draft recommendation.
Cultural diversity
Cultural diversity is an essential condition of human society. It is caused by such factors
as migration, the claim of minorities to a distinct cultural diversity, impact of globalisation, etc. More and more individuals are living in a “multicultural” dimension, facing the
influence of different cultures and having to manage their multiple cultural affiliation.
As it is stated in UNESCO Convention on the Protection and Promotion of the diversity
of Cultural Expression, “Cultural diversity is a rich asset for individuals and societies”.
Protection, promotion and maintenance of cultural diversity are factors of human development and essential requirement for sustainable development for the benefit of
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MS MOMINAT OMAROVA
present and future generations. At the same time increasing cultural diversity creates
challenges that can provide grounds for rejection, social exclusion and even conflict. In
this context the promotion of dialogue plays a significant role.
Conflict and dialogue
When the Group of specialists on the role of women and men in intercultural and interreligious dialogue for conflict prevention, for peace building and for democratisation
(EG-S-DI) started its work, it was agreed that there had been little research in this field,
especially research into gender-specific roles. Although more effort has recently been
made to acknowledge and explore women’s role in intercultural and interreligious dialogue, this was a relatively new dimension in terms of content, organisation and the key
significance of dialogue today. Furthermore, there were no tools for studying the nature
of the role of women and men in the light of their gender-related experience and potential and no appropriate models for addressing the issue.
It is difficult to examine and document the various aspects of the impact of women’s
involvement in conflict prevention. It is often thought that, in a context of male domination and a male power set-up, the situation would change if more women were involved. The principle of equality between women and men is, however, considered an
integral part of human rights and, accordingly, balanced participation of women and
men in intercultural and interreligious dialogue for conflict prevention, peace building
and democratisation is justified.
Many conflicts in the world apparently originate in tensions between two religions,
as in Northern Ireland, or between different factions within the same religion, as in the
case of the conflicts between Sunnis, Shiites and Wahabis under the banner of Islam.
Conflicts can also be linked to the status of religion in countries where the Church and
State are separate. Ethnic identity is often linked as much to citizenship as to religion
and nationality. Cultural differences and separatism are another source of conflict.
The secularisation of society can also be a source of conflict because a section of the
population is ignorant of religious matters. Some social and family conflicts are linked
to the wearing of religious symbols, such as the headscarf, the cross, the kippa or the
turban. Equally, replication of an international situation at local and community level
has become a source of tension as a result of an influx into host countries of refugees
fleeing conflict.
Intercultural and interreligious dialogue
The concepts of intercultural and interreligious dialogue have often been used but have
rarely been defined. In this context, rather than defining these concepts, the Group considered it would be useful to consider what form intercultural and interreligious dia-
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logue that took account of women’s role would take, and how its potential could be
developed.
Balanced participation of women and men is a prerequisite for intercultural and interreligious dialogue. Interreligious dialogue is currently widely discussed but the intercultural aspect is also very important. Politicians might be concerned about the
phenomenon of religion, its institutionalisation and its use as a political instrument, but
it is also necessary to consider religious phenomena that are part and parcel of a culture,
as is often the case, and are difficult to separate from it.
Successful examples of interreligious dialogue and co-operation on the part of individuals in pursuit of peace exist, and a number of initiatives have been taken, mainly in
rural areas, but they are undervalued and often invisible in the community at large, and
usually separate from the official (political) peace building agenda. The point should be
made that ignorance of such initiatives and the lack of political attention are far more
evident when the dialogue is between Christians and Muslims or with other religious
minorities or communities.
The role of religious communities is of great importance in fostering such dialogue
and raising awareness of the need for tolerance and respect, especially among peacebuilders (women and men alike). Interreligious dialogue as such can be encouraged by
building on successful work by other peace building agencies (peace groups, women’s
groups, spiritual groups and public authorities) at national and local level, but also on
work directly involving atheists and people who do not declare to be religious.
The roles of women and men
Women and men experience conflict in different ways and react to them differently. If
balanced participation of women and men is one of the main goals and a prerequisite
for an understanding of women’s specific role not only in conflict prevention but also in
times of crisis and in post-conflict situations, the responsibilities of both women and
men should be taken into account, with due regard for their experiences, capabilities
and priorities.
The issue of women’s and men’s roles has to be clarified and, since a gender-neutral
text would fail to do this, a gender-mainstreaming approach has to be adopted. Such an
approach must be comprehensive and sensitive to the special roles of women and men
from a wide variety of cultural and religious backgrounds, in very diverse situations. For
example, when examining a document setting out statistics for the practice of the main
religions in Council of Europe member states, the statistics were not gender-disaggregated and took no account of mixed marriages, and did not therefore make it possible
to identify women’s existing and potential roles in these religions or communities.
The group also highlighted the importance of women’s role in the democratisation
process as a key factor in conflict prevention, without ignoring the obstacles to balanced participation by women and men. Religious influence in a community, especially
with regard to women’s rights, for example, can have adverse consequences for women’s
participation and role. For example, family voting may prevent women from participating in public life for cultural and/or religious reasons.
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MS MOMINAT OMAROVA
In contrast with other issues (for example, the issue of national identity), where religious communities have slowly shifted their stance and come to advocate a culture of
tolerance towards, and recognition of, different nations and citizens with various national identities, their attitudes towards gender equality issues very often remain traditional and seem to be becoming even more entrenched in this respect. A patriarchal
attitude to the acceptance of men and women in interreligious dialogue is evident from
their status or role: men are much more respected as leaders or teachers than women.
The experience of religious associations shown that women’s role tends to be geared
more to charity and aid, while men tend to have a role as moral leaders and providers
of enlightenment.
In addition, there is a tendency for the teaching profession to become “feminised” in
primary and secondary schools, particularly in the field of religious instruction, and
senior positions in the education system are occupied by men.
The majority of people identify themselves as believers and claim to adhere to a religion, but it is often assumed that there is no significant difference in the levels of religious belief between women and men. Women, however, practise their religion more
openly (attending church services, etc).
Very little is known as yet about gender-specific outcomes, approaches and challenges, either in religious circles or more widely, in connection with the peace building
agenda. Moreover, there is very little understanding of the gender dimension of the
issue or of the changes in gender relations and in the positions of the two sexes, and the
underlying reasons for these. The role of women and men in interreligious and intercultural dialogue for conflict prevention, peace building and democratisation therefore
needs to be explored in greater depth, from both a gender-sensitive and a multicultural
perspective. Much more research, including such basic work as data collection, is
needed to obtain more than a general picture and come up with hard facts. There is a
lack of gender-disaggregated statistical data concerning the role of women and men in
interreligious and intercultural dialogue.
Women influence peace building processes through a number of activities and in
various ways, very often going further than defining peace as the absence of violent conflict and introducing approaches based on inclusion, good governance and justice,
which entail the elimination of unjust social and economic relations, including unequal
gender relations. The idea is not to replace male rhetoric with female rhetoric, but to
integrate a gender approach which supports the values of pluralism, inclusiveness and
equality.
When addressing the role of women and men in intercultural and interreligious dialogue for the prevention of conflict, peace building and democratisation, the right
course of action at this point in time is to highlight the position of women. The underlying principle of adopting a gender perspective that looks at both genders should not
however be forgotten.
The focus on the role of women should be seen as a form of affirmative action that
lays the foundations for further changes in the roles of women and men. The aim should
be to avoid a dichotomy between the roles of women and men as, for example, in the
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image of the (active) male warrior and the (passive) female victim or peace-keeper. Instead, the idea is to enhance the impact of both male and female peace-makers.
In addition to, studies and policies concerning intercultural and interreligious dialogue need to acknowledge women’s capacity to bring about change highlighting women’s most successful attempts, development models and good practice, and
incorporating them into a broader platform calling for a new form of multiculturalism.
Mechanisms for the organisation of dialogue
Despite the vast amount of information about the various topics and the growing
number of information sources, relatively little is known about mechanisms for organising interreligious and intercultural dialogue. In France, provision for such dialogue
has recently been made with the appointment of the National Council of French Muslims, which is an elected body representing Muslim communities in France and a talking partner for the government. In Romania, where the majority is Orthodox and there
are Hungarian, Catholic, Lutheran, Roma and Pentecostal minorities, women’s NGOs
and the churches have organised joint activities. The wives of Orthodox priests are also
involved in welfare work in the community, and the government is developing a policy
for the integration of the Roma population. In Bosnia and Herzegovina, the Interreligious Council plays a very important role in bringing together the Muslim, Catholic,
Orthodox, Jewish and Protestant communities. It also promotes the role of women. In
Bulgaria, a process for peaceful dialogue between the Muslims and the Roma has been
initiated.
The group also emphasised the importance of generational considerations and the
way in which different age groups interpreted religion. For example, although interreligious groups in the United Kingdom have difficulty in recruiting young people,
there is a revival of interest in religion in the former communist countries, particularly
among young people.
Networks interlinking the various levels of participation need to be set up/supported. One of the major obstacles seems to be that dialogue ends at local level. There is a
need to connect it with the work that has already been done by the higher tiers of government (regional, national and international) in order to achieve a wider outreach and
broader impact. Networks, which are usually based on personal contacts, are an excellent mechanism of enhancing the dialogue that exists at community or local level. It is
especially important to co-ordinate efforts made by NGOs with those made at governmental level.
The group stressed that member states should acknowledge the successes and expertise of women’s NGOs when pursuing national policies and security programmes.
As regards co-operation with other international governmental organisations, the
Council of Europe should work closely with UNESCO on issues of joint concern, paying
special attention to the teaching of religion in a multicultural, inclusive context and
taking advantage of the system of UNESCO Chairs in intercultural and interreligious
dialogue. Work on issues of common concern, such as the role of women as peace builders, with a view to enhancing their skills and potential in conflict prevention and reso-
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MS MOMINAT OMAROVA
lution, should be stepped up. Very often there are religious and cultural
misconceptions, and it would therefore be useful to ensure that the various religions
know more about other religions in a multi-cultural context.
The media are fairly influential in shaping people’s perception of war and peace and
the role of women and men in these contexts. The media might therefore be one of the
mechanisms that could be used by the various groups involved in intercultural and interreligious dialogue and the different networks. Working together with (and not
against) the media is an important mechanism of enhancing the efforts made. Furthermore, by presenting and endorsing good examples of the role of women in intercultural
and interreligious dialogue for the prevention of conflict, peace building and democratisation, the media could change the widespread perception of women as victims.
Another equally important factor is media education as a means of inculcating a
critical attitude towards the media. Such education is necessary for those who are involved in intercultural and interreligious dialogue and work with the media, for the sake
of effective public relations. It is only when people know what kind of information is relevant or interesting to the media that effective co-operation is possible. More generally,
media education needs to take priority in school curricula.
Whilst various mechanisms for interreligious and intercultural dialogue exist, it is
difficult to find many examples where the role of women has been singled out, and particularly of action to interlink the gender, religious and cultural aspects. Women therefore need to be acknowledged and given credit for their contribution and role in future
recommendations.
. . . . . . 131
Ms Gabriella Battaini-Dragoni
Council of Europe Co-ordinator for Intercultural Dialogue, Director
General of Education, Culture and Heritage, Youth and Sport
On 7 May 2008 the foreign ministers of the Council of Europe launched a White
Paper on Intercultural Dialogue, Living Together as Equals in Dignity. Gabriella
Battaini-Dragoni, Co-ordinator for Intercultural Dialogue and Director General of
Education, Culture and Heritage, Youth and Sport of the Council of Europe, explains the significance of this initiative.
Intercultural dialogue, as this meeting attests, is a necessity of our times. More than
ever, in an increasingly diverse and insecure world, talking across ethnic, religious, linguistic and national dividing lines is imperative to secure social cohesion, trust and to
prevent violent conflicts.
Events of recent years have raised the crucial question of how members of different
communities relate to one another.
But as these episodes suggest, questions have been more evident than answers when
it comes to coping with cultural diversity. It was for this reason that in 2005 the heads
of state and government of the member states of the Council of Europe, at their Warsaw
Summit, decided to put Intercultural Dialogue high in the political agenda of the Organisation and to appoint a co-ordinator for intercultural dialogue. And, later that year,
the culture ministers called for the preparation of a White Paper to provide guidance on
policy and good practice in this arena.
The Council of Europe, as this meeting has so eloquently demonstrated, was well
placed to take this initiative since it has embodied from the outset the universal norms
of democracy, the rule of law and human rights. These are essential bulwarks to protect
civilised life from the threat of man’s inhumanity to man – a threat that is all the greater
when “the other” can be stigmatised as less than fully human.
When the Council of Europe embarked on a protracted consultation to prepare the
White Paper, there was unanimity that these universal norms provided the only secure
foundation on which intercultural dialogue can take place. There was a clear recognition that a culture of tolerance paradoxically demands the intolerance of intolerance, as
manifested in any form of “hate speech”. And there was consensus, perhaps surprisingly,
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MS GABRIELLA BATTAINI-DRAGONI
that gender equality was a sine qua non which no taken-for-granted cultural “tradition”
could be allowed to trump.
The consultation proved a vast affair. It lasted six months. It engaged 47 member
states, non-governmental associations, religious communities, experts and practitioners, along with the various components of the Council of Europe itself. In the process,
this threw up a host of examples of good practice which informed the White Paper.
Interestingly, however, one of the clearest lessons was conceptual. The consultation
with the member states drew out that the reason governments have found the events of
recent years so challenging is that they have found inadequate two traditional approaches to addressing cultural diversity.
The first of these, which was also historically prior, is the notion that members of minority communities should assimilate to the dominant ethos of the state, even though
that ethos has been defined by the “host” majority. This has proved increasingly difficult
to sustain in ever-more diverse societies and does not sit easily with recent Council of
Europe affirmations of the rights of persons belonging to minority communities, such
as the Framework Convention for the Protection of National Minorities and the Charter for Regional or Minority Languages.
Partly in response to these problems, the alternative multiculturalist notion argued
that the distinct ethos of minority communities should be politically recognised as
being on a par with that of the “host” majority. But this also turned out to be problematic, as it unwittingly led to a sacrifice of the rights of individuals – notably women –
within communities. And it tended inadvertently to reproduce individuals to communal stereotypes, to which could be attached enemy images, and became associated with
ghettoisation and mutual incomprehension.
It is in this context that the new paradigm of intercultural dialogue has emerged.
This has taken from assimilation, at its best, the emphasis on the universality of the citizen and his or her equality, allied to the exercise of impartial public authority. It has
taken from multiculturalism, meanwhile, an appreciation of the reality of cultural diversity and its potential for cultural enrichment. Critically, however, it shifts the focus from
the relationship between the individual or community and the state to the necessity for
dialogue across communal barriers. And it is marked by a culture of broad-mindedness,
which recognises the fluidity of identities and the need for openness to change in a globalising context.
Interculturalism thus offers a new answer to the question of social integration. If assimilation placed the onus to integrate entirely on minority communities, and multiculturalism was cavalier about the need for integration at all, in the spirit of intercultural
dialogue integration is reconceptualised as a two-way street, in which all have roles and
responsibilities.
As demanded by the member states in 2005, the White Paper launched in May this
year by the 47 Ministers of Foreign Affairs translates this into policy and practice. As to
the former, it discusses the need for democratic governance of cultural diversity,
marked by a culture of citizenship and participation.
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THE WAY FORWARD – LIVING TOGETHER AND RESPECTING DIVERSITY
Such governance arrangements must be underpinned by an equality of life-chances
and by the equal enjoyment of rights. Any form of discrimination or exclusion means
intercultural dialogue does not take place between equals or does not take place at all.
Intercultural dialogue depends not only on a supportive political environment but
also on the capacity of individuals to engage in dialogue with others. The empathy that
stems from reciprocal recognition of our common humanity may generate goodwill,
but particular competences are needed. These include some familiarity with other languages, a basic understanding of the world religions and an appreciation of the multiple
perspectives which may be brought to bear on the history of one’s own society.
Intercultural education is thus critical if intercultural dialogue is to thrive.
Indeed education is key to intercultural dialogue because education opens minds. In
educating – especially educating young people and children, but also in training the
teachers and multipliers – education will decide the future of our societies. If our
schools, our media and civil society organisations look inward, our societies will too. If
our schools, our media and civil society organisations are open to the world, our societies stand a good chance of seeing diversity not only as an unavoidable reality, but as an
opportunity for joint human and economic development. Education is not only about
learning “facts and skills”. It concerns at least as much the attitudes and skills to use this
knowledge in a responsible way. Who, in a culturally diverse world today, can seriously
maintain that learning how to “live together as equals in dignity” is not one of the main
challenges we face?
Education is multidimensional. The Council of Europe has long taken the view that
education, particularly that in schools and universities, must fulfil four key purposes:
‚ the development and maintenance of a broad and advanced knowledge base;
‚ personal development;
‚ preparation for the labour market;
‚ preparation for life as active citizens in democratic society.
But are we not neglecting a fifth, increasingly urgent purpose? I cannot imagine that
the society we want, would not be fluent in intercultural dialogue.
The Council of Europe has much experience in education for democratic citizenship
and intercultural competencies and plans to produce a guide to good practice in intercultural education.
The media also play a crucial role here, as they can fan the flames of insecurity by
sensationalist reporting – particularly when it comes to painting whole immigrant populations as criminal and all asylum-seekers as bogus – which breaches the norm of impartiality. Media organisations need themselves to reflect the diversity of the society
they serve, for example in minority-programme broadcasting as well as in the make-up
of their journalistic staff.
There are many more social locations where intercultural dialogue takes place and
many more organisations – including non-governmental organisations alongside governments and international bodies – which are responsible for its promotion. Indeed it
is hard to think of any arena or social actor for which intercultural dialogue is not a relevant concern: as John Donne famously put it at the beginning of the 17th century, “No
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MS GABRIELLA BATTAINI-DRAGONI
man is an island, entire of itself; every man [and, we would now make clear, every
woman] is a piece of the continent, a part of the main.”
But how then to manage this complexity? Again the consultation which led to the
White Paper pointed to solutions to this co-ordination dilemma. Some governments
have led the way in developing integration plans, which offer “joined-up” approaches,
seeking to ensure that policies pursued by different departments are working to realise
a common interculturalist goal.
Local authorities have also been pioneers. Many have established integration committees which bring together representatives of minority associations with municipal
political leaders.
Non-governmental organisations have, however, probably been the greatest source
of innovation in good practice. Their closeness to life on the street, their specific engagement of members of minority communities, and their relatively small scale and
flexibility all lend themselves to new initiatives. Very many examples of good practice
emerged in the White Paper consultation, including in the spheres of youth, women’s
participation, sport and the arts.
But intercultural dialogue must take place on a global as well as local scale. And the
White Paper, which recognises of course that this year has been designated by the European Union as the Year of Intercultural Dialogue, also explores how the Council of
Europe can work with its international partners to promote dialogue beyond the continent. This is a particular imperative in terms of the Arab and Islamic worlds, and the
Council of Europe here benefits not only from its relationship with UNESCO but also
more specifically with the cultural organisations of the Arab League (ALECSO) and the
Organisation of the Islamic Conference (ISESCO). The North-South Centre of the
Council of Europe also comes into play here, as does the Anna Lindh Euro-Mediterranean Foundation and the UN Alliance of Civilizations.
The Council of Europe is only too aware that intercultural dialogue, by definition, is
an evolving activity which involves many partners and many policy areas. It by no
means seeks to claim a monopoly of wisdom in this regard. And it very much hopes that
the “White Paper process” can and will continue, for example via good-practice networks such as the Intercultural Cities project and the Media Campaign against Discrimination.
The White Paper on intercultural dialogue offers multiple answers to the questions
with which governments have wrestled in recent years as to how diverse individuals can
live together. Intercultural dialogue is a “work in progress”, one step on a longer road towards the construction of a social and cultural model for a fast-changing Europe, allowing everybody to “live together as equals in dignity”.
. . . . . . 135
Mr Cristoph Spreng1
Special Advisor for Intercultural Dialogue, Conference of INGOs of
the Council of Europe
Introduction
The INGO Conference is one of the three consultative bodies of the Council of Europe,
which is run by the Committee of Ministers. The two other consultative bodies are the
Parliamentary Assembly and the Congress of Local Authorities. The INGO Conference
has 408 accreditations as per 2007. In June 2008 it adopted its own new, revised structures and rules of procedure.
Some current affairs indicators pointing to a bigger
role for the Council of Europe
‚ There is a study2 on the history of law (by Vittorio Klostermann) focusing on the
management of state borders and populations which looks into the fluctuating ideologies and methods around freedom of movement and residency, or the limitation
thereof. The study reveals that this is not only a 20th- and 21st-century phenomenon, but one that has been present throughout the 19th century as well.
‚ At this year’s film festival in Cannes, the French social drama Entre les murs3 by Laurent Cantet was awarded the Golden Palm. The award winning movie is enacted by
many volunteer actors and depicts the multicultural realities of a school in Paris. It
is an example of the high quality work and good talent which is required when focusing these issues for the public at large.
1. The contributor is Representative of Initiatives of Change – International. He began his
active involvement at the Council of Europe INGO Conference with the elaboration process
of the White Paper on Intercultural Dialogue in 2006. He operated as INGO project
manager for it and has subsequently been appointed Special Advisor for Intercultural
Dialogue by the INGO Conference Executive in July 2008.
2. Rechtsgeschichte, Band 12, Verlag Vittorio Klostermann, FfM, 2008.
3. http://www.imdb.com/title/tt1068646/.
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MR CRISTOPH SPRENG
‚ The Swiss Commission on Racism states in a recent report that the current trend
shows that people have fewer inhibitions about writing what they really think on the
Internet. Hence what may have been opinions held in private in the past is now published on the web. So, the confrontational nature of the debate increases.
‚ Australia, March 2008: The Prime Minister expressed an apology to the Aboriginal
People of Australia for the 19th- and 20th-century policies of forced family separations putting their children into re-education, robbing them of their language and
culture. This policy has caused serious personal and social tragedies. An inquiry4
published in 1997 had brought the “stolen generation” evidence to light. But the
report of this inquiry had intentionally not been received at Government level.
Therefore, much hard work from NGOs – among them the author’s colleagues and
many civil groups – went into initiating “National Sorry Days”5 without official, but
much popular support. Eventually, the Government came around to facing and acknowledging the hurts caused in the past. The mere fact of acknowledgement was
reportedly as important as the material measures to remedy the harm done. By
doing this Australia took a conscious, important step of removing historic obstacles
to intercultural dialogue.
‚ The book6 on the world’s cultures has been published exploring what they have in
common and what is different among them. The ethnologist, Christoph Antweiler
is looking for patterns in the vast sea of diversity across the globe. One of his reasons
for publishing these findings is the perceived need to drop prejudice (which is often
fed by a measure of ignorance and generalisation) and get to know reality which he
is working on to establish.
‚ BBC World Service Radio has programmes called Race and Reconciliation and Culture Shock. The latter is – in spite of a slightly provocative title – a good series of
broadcasts which help listeners to get to know the human face of changing realities
near and far, thus contributing to reduce ignorance and false myth.
‚ The 2008 Frankfurt Book Fair hosted Turkish authors under the banner “Turkey in
all its colours.” One of the media reviews7 had two striking headlines: “Diversity as a
Programme” and “On the Road to an open society?”
‚ A recent report on homophobic statements by opinion leaders in different Council
of Europe member states records how regrettably close they are to hate speech.
‚ The population of Greenland held a Referendum in November 2008. As a result of
it the language and ethnic population of Greenland are formally recognised as forming a part of the Kingdom of Denmark. This marks yet another phase of normalisation after the decolonisation of the island in 1953 and the beginnings of autonomy
in 1979.
The above is just a random, incomplete sampling. Even so it points to the need of
making our Culturally Diverse Societies function. Some writers have suggested, even
4.
5.
6.
7.
http://www.humanrights.gov.au/Social_Justice/bth_report/.
http://www.nsdc.org.au/.
“Was ist den Menschen gemeinsam? Über Kultur und Kulturen”, WBG Darmstadt 2007.
Neue Zürcher Zeitung Nr. 238, 11/12 October 2008, page B1.
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THE WAY FORWARD – LIVING TOGETHER AND RESPECTING DIVERSITY
recently, that in the past societies in European states were homogenous. The first and
the last of the above samplings point to the fact that states in Europe have always been
de facto diverse societies. But still now this reality needs to be reflected properly in the
basic texts of some Council of Europe member states.
The above should help to refresh the understanding that Europe is at a crucial point
in time, needing to get better equipped to address the current realities as well as putting
to rest some old ghosts. One of these old ghosts is that culturally diverse populations in
societies were seen as a weakness and should be either avoided, denied, or even abolished.
The Council of Europe has a solid track record on standard setting for areas covering
the Rule of Law, Human Rights, the Social Charter, the hard issues as defined in law,
which are at least in principle enforceable by the competent instances. It is to be commended that by initiating the White Paper on Intercultural Dialogue process it is extending its concerns and competence to some more soft issues, not as easily traceable as
the hard issues but increasingly important to the good functioning of 21st century
states and entities.
Identity, dialogue, dignity and respect and the appropriate spaces for their exercise
are closely linked with human rights, democracy and the rule of law. One could say that
the hard and the soft issues – although very different from each other – are very dependent on each other. Metaphors like the two wings of a bird, or the two sides of the
human brain.
What the INGO Conference has done
The INGO Conference has welcomed the adoption of the White Paper on Intercultural
Dialogue and has actively supported the consultation work undertaken by the Council
of Europe to write it. Besides quite a number of events arranged by member organisations it conducted its own hearings and debates at the sessions of October 2006, February, April and June 2007. It also organised a special three-day Forum on Intercultural
Dialogue at the European Youth Centre in November 2006.
Above all, there are the INGO Conference Committees for Human Rights, for Culture, Science and Education, and for Civil Society and Democracy with their manifold
activities, resolutions and recommendations. All these proceedings are documented
online.8
Overview of INGO hearings on intercultural dialogue
Here follow some summary thoughts from the INGO debates:
‚ The hope of creating a space with full respect for basic human rights across Europe;
‚ The will to aim at equality of opportunities, also for women and men;
‚ Great care to be taken that children be brought up to respect differences;
8. See http://www.coe.int/NGO/.
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MR CRISTOPH SPRENG
‚ The need to help new arrivals in a country to be able to function within that hostcountry;
‚ A strong wish to reach concrete measures for intercultural dialogues;
‚ The will of INGOs to take part in the process;
‚ A call to different cultures to come together without the threat of loss of identities;
‚ The role of the media in making these things successful;
‚ Registering the role of religious and other belief communities in this process;
‚ A change of mentalities is required in order to progress in this field;
‚ To take care that dialogues do not remain at saying nice words but get to the point
of addressing the difficult issues;
‚ INGOs, with their member organisations in different countries and continents, have
a particular contribution to make as they have their own intercultural experience.
Their own progress depend on working creatively with the cultural differences
within their ranks;
‚ Taking account of mindsets is vital, such as national narratives, and acknowledging
and dressing the wounds of the past, eventually arriving at shared histories, as all this
is part of the context for honest dialogues to occur.
Based on some initial achievements already accomplished, more
work is required on
‚ Basic analysis of the causes of conflict;
‚ Identifying the critical areas where dialogues need to happen, and
‚ The methodology of such dialogues.
A brief comment on the White Paper on intercultural
dialogue
Paragraph 150 is especially worth quoting as it is unique in the strength of its statement:
Cultural diversity in urban areas will be a further priority theme. Successful cities
of the future will be intercultural. They will be capable of managing and exploring
the potential of their cultural diversity, to stimulate creativity and innovation and
thus to generate economic prosperity, community cohesion and a better quality of
life.9
This statement is future oriented, of programmatic nature. But it also has proof in
history. There are many examples of past immigrations that have resulted in dynamic,
creative developments for the host region which later was taken for granted and it was
practically forgotten how they came about.
Summarising, there is a majority of affirmative recommendations. Quite a number
of points are being put on the agenda of the Council of Europe. The Committee of Min9. Last paragraph of Recommendation No. 5.2 of the WPID; see http://www.coe.int/dialogue/.
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THE WAY FORWARD – LIVING TOGETHER AND RESPECTING DIVERSITY
isters, having adopted the White Paper in May 2008 should be reminded to allocate adequate budget provisions to carry out the tasks in these domains.
Proposal and concluding remarks
Europe is in a period of relatively fast and deep changes, therefore the public authorities
as well as other constituted bodies of society need to leave behind traditional self-serving, self-justifying attitudes and mechanisms to become much more able to learn, adapt
and innovate. Governments need to become “learning organisations”. All constituted
bodies including those in civil society need to adopt more of the learning mode if a creative spin is meant to take hold of the deep transformations that are under way.
Specifically, we suggest that National Round Table Dialogues be organised.
‚ These dialogues should be co-hosted by the Council of Europe, so as to be seen in
the context of broader trans-national issues.
‚ Participation should be non-partisan and represent a very broad spectrum of
‚ society.
‚ The aim would be a few basic deliverables that take “Human rights in culturally diverse societies” beyond their role as mere party political footballs.
‚ The National Round Table Dialogues should have as their outcome that broad 21stcentury consensus of what Winston Churchill called for in 1946: “… to recreate the
European fabric, … under which it can dwell in peace, in safety, and in freedom.”10
This time, however, not a far-sighted call from a leader having made it out of disaster,
but rather the jointly worked-out common will of a series of National Round Table
Dialogues.
The proposed Title could be: “An honest Dialogue on shared, multiple Identities –
Spaces for its exercise of Human Rights, Democracy and the Rule of Law”.
Proposed items for research and dialogue could include:
‚ Identifying and acknowledging exclusions in the past, drawing lessons from them;
‚ Take stock of existing understandings of identity;
‚ What do we really want: uniformity or unity in diversity?
‚ Is a state the unique property of the “dominant group”11 or can it belong as much to
the “non-dominant groups”?
‚ Which barriers need to be removed so that humane and inclusive societies can operate?
‚ Explore and clarify the concept of shared multiple identities;
‚ Map out those action fields that are conducive to improving national situations.
‚ Build on and enhance existing Council of Europe Projects like Education for democratic citizenship and human rights in order to share out the Round Table results in
the broader society.
10. Winston Churchill speaking in Zurich, 19 September 1946.
11. Term quoted from a statement by Council of Europe Human Rights Commissioner Thomas
Hammarberg, 9 October 2008.
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MR CRISTOPH SPRENG
Grounds for the proposal of National Round Table Dialogues
From the NGO side, many are engaged in work to overcome the confrontational mindset and its ugly consequences, or at least to bring some relief to victims of actual harm
done. There they are, as well as some local government agencies, trying to improve
things at the grassroots. But what is often most visible and what is heard loudest are
those events that confirm or even glorify confrontational attitudes.
On the other hand there are the leaders12 who fully share the inclusive concepts and
attitudes, but they look to the grassroots for real progress. So, the leaders are looking at
the grassroots for real progress and the grassroots are looking at leaders for an encouraging overall climate.
To engage in a broad collaborative effort at this time of need must therefore include
both leadership and grassroots of all sections of society.
The Dialogues themselves are meant to be a learning experience, both for participants and for the public via the media.
In conclusion, we in Europe have a particular responsibility and opportunity to work
out the way from the uniformity of the “winner takes all” approach to a more balanced
type of society which upholds unity in diversity. The Council of Europe is a unique institution placed to be at the forefront of working this out. And finally, our thanks and
congratulations go to the Ministry of the Interior and Kingdom Relations of the Netherlands for having hosted this conference in The Hague.
12. The paraphrasing of a question and answer exchange with the contributor when European
Union Commissioner Ján Figel spoke at the Jean Monnet Foundation for Europe of the
University of Lausanne, 26 September 2008.
. . . . . . 141
Ms Anastasia Crickley
Chairperson of the Management Board of the European Union Agency
for Fundamental Rights
As Chair of the European Union’s Fundamental Rights Agency, I am very glad to be here
and to demonstrate again the ways in which we wish to co-operate and in particular
with the Council of Europe in this important work.
Firstly, I consider the title of this conference an important one: Human rights in culturally diverse societies. The groups that look at these sorts of issues tend to look at
them in parallel lines, at human rights issues on one hand and at issues of equality and
cultural diversity on the other hand. The bridging of these divisions is absolutely crucial
and I suggest to bridge them in a way that does not give predominance to one or the
other, either to the human rights lawyers or to the NGOs and activists who promote
issues of diversity and against oppression.
Secondly, facts and perceptions and laws are all important. The facts, and in particular the research that we have done in the Fundamental Rights Agency, show that unless
you can back your attempt to address perceptions with some form of facts and with
some form of analysis, you are up against a brick wall. In particular the Roma, Traveller
and Sinti communities whom I have worked with for the last 30 years say, “Look, we’re
not that bothered with what they think about us, but we want them to stop doing it. It
would be nice if they didn’t continue to think in that awful way, but it would be even
better if they stopped doing it”. Although I agree with the previous speaker, I would not
like to put perceptions up above. Let us have the facts, let us have the laws, and then let
us try using both to deal with perceptions.
It seems to me as a starting point the currency we have at the moment throughout
Europe of blaming the discriminated for being discriminated against. Blame LGBT
people for being LGBT, blame Roma, Sinti and Travellers because they continue to
show that there are different ways of living in the whole of Europe. That currency is
something we have to acknowledge and address.
Thirdly, before we even begin to talk about living together and respecting diversity,
we have to acknowledge that a big and continuing barrier is racism and also discrimination in all its forms. You cannot get to integration, inclusion or living together and respecting diversity unless you also acknowledge and continue to name and address the
barriers to it. One of the problems we face at the moment is that it has become slightly
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MS ANASTASIA CRICKLEY
old fashioned to talk about the barriers. What we should be focussing on now are the
new issues and the ways of managing them. While I acknowledge the need to get
beyond integration, ten generations on am I still being integrated as an Irish person in
the United States or wherever I happen to be. I do agree that we need to get beyond that
language of only integration.
But actually there is a question of integration when people live for generations in
countries where they do not even have citizenship which is also a question of exclusion.
As we move forward it seems to me that it is the question of exclusion that we need to
deal with because it links the experience of the locally poor with that of the marginalised minorities. We have dealt with these questions, both locally, nationally and even internationally. Nevertheless how often does the department concerned with poverty in
the Council of Europe, the European Union or any other members or participating
states talk to the department that is concerned with integration? I welcome the launching of the White Paper on Intercultural Dialogue and the new initiative by the Council
of Europe of living together as equals in dignity because we need action and not just
cheap talk. We need to go beyond intercultural dialogue to intercultural action that can
provide a frame for linking a number of different things together.
We also need to avoid linguistic gymnastics where we use different words to describe the same thing. This is not a huge problem but let us not start fighting over it. We
need to acknowledge that we do come from different and well-held cultural traditions
and notions about how things should be across all of the states of the Council of Europe.
We do, indeed, live in multicultural societies. All of our societies have been multicultural, even my own which always pretended it was monocultural and monoreligious;
it was neither monocultural nor monoreligious ever since we had Roma, Sinti and Travellers in Ireland for years, there have been Black Irish people and Jewish Irish people as
well. We all live in multicultural societies and those societies have changed over the last
hundred years. We often seem to ignore those sorts of realities.
For me the struggle is towards an intercultural society; we do not have it yet and that
is the struggle. The White Paper articulates this very clear. It is about linking human
rights principles with respecting diversity, saying quite clearly that human rights principles cannot be trumped by customs or traditions of the minority or the majority. This
is very important as we begin to work towards intercultural societies. That also means
that they cannot be trumped by pretending that all of us are the same. We are men,
women and children and we have different realities and come from different perspectives.
Paulo Freire wrote a lot about education and moving forward education is important. But sometimes I think we are in danger of turning what is a tool into the actual
transformation itself. Paulo Freire was quite clear, without education you cannot have
any transformation but the transformation is not just the education. In considering how
we live together and respect diversity, education is absolutely important and I refer to
the work that the Council of Europe has done in this respect and to the Toledo Guiding
Principles of the OSCE. Education and learning about religion is crucial. But that is not
enough to ensure that people in the future act in ways that are appropriate. For that to
happen, I agree, we need political leadership.
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THE WAY FORWARD – LIVING TOGETHER AND RESPECTING DIVERSITY
With regard to the two manuals which will be launched later at the Conference, I
wonder whether the Council of Europe might consider preparing a handbook on political leadership for living together and respecting diversity. There is a galloping race any
time there is the smell of an election away from honesty about these issues and this race
is happening at the local level as well.
I agree that we live our lives locally; thinking globally and acting locally is very important. There are very important and concrete things going on at the local level, and I
respect and acknowledge the initiatives that have been taken by cities and by rural communities throughout Europe. But other things could also happen at the spatial planning
level so as to acknowledge the need of old and new populations that are excluded. Often
it looks fashionable to deal with the new population and just ignore the older ones. Although we have a hard time acknowledging it, much can be done to act locally when it
come to fighting the worst forms of neofascism and the worst forms of hate speech. It
is at this level that discrimination against people on the basis of their religion can be experienced.
I fully support the idea of participation, but all of us who have participated in national partnership arrangements, and I was part of developing those in my own country, all
of us who have participated in interreligious dialogue, and I have been part of those, all
of us who have advised the Council of Europe and the OSCE, they must be sick of us by
now, all of us who have participated in European Union fora are clear that there is a difference between participation and consultation. There is also a difference between participation and being involved in the deliberations of decision-making. You may be
involved in the deliberations of decision-making but in the end you are not actually a
participant in the decision. Maybe that is an appropriate role because we are not governments and we are not the ultimate deciders. I think there needs to be a little bit of
honesty about the roles that we can take and the roles that can be played in those spaces.
In conclusion: We come from different traditions, we need to move with what we
have and I do believe that thanks to the Council of Europe, the European Union and the
OSCE, there are frameworks in place and even legislation in most countries. We need
to move with what we have got and demand not only its implementation which can rapidly become a box-ticking exercise. We need to demand an analysis of the impact of the
existing frameworks on the people, individuals and groups that they are supposed to
support. I think the idea of national round tables would be a good one, but I think a prerequisite is a demonstrated direction from the top. Otherwise national round tables,
and we have all participated in them, could become a very useful talking shop and an
excuse for action. I would like to see demonstrated direction, and I encourage and support the Council of Europe in ensuring that that demonstrated action will come about.
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ROUND TABLE
PRESENTATION OF THE MANUALS
ON “HATE SPEECH” AND THE WEARING
OF RELIGIOUS SYMBOLS IN PUBLIC AREAS
Mr Marten Oosting
Member of the Council of State and former National Ombudsman,
the Netherlands
It is both an honour and a pleasure for me to have been invited to act as moderator at
this round table to launch the two Council of Europe manuals on “Hate speech” and on
the Wearing of religious symbols in public areas. I have had the opportunity to have a
first look at the manuals to gain an overview of their content. Both manuals constitute
a rich source of information and stimulate due and proper attention to the two fundamental human rights in question, i.e. the right to freedom of religion or belief and the
right to freedom of expression within the sense of European Convention on Human
Rights.
Allow me to make a few remarks about the two manuals from the perspective of
public authorities. From the outset I think it is important to be aware of the fact that the
two manuals leave us so-to-say empty handed, at least with regard to the following two
aspects. Firstly, the manuals do not present a clear definition of the two key concepts.
There is neither a definition of what is “hate speech” nor a definition of what is considered to be a “religious symbol”.
Secondly, the manuals do not contain any clear recommendations. Quoting from the
manual by Mr Evans, it does not offer as much practical assistance to domestic policy
makers as they might have wished to receive. I do not say this in order to blame the authors for these two missing points because they are not to be blamed in any way. In fact
they had good reasons for drafting the manuals as they have done.
Let me dwell upon these two points briefly, i.e. the point about recommendations
and the point about definitions. I found it very interesting to have a clear analysis of the
case-law of the European Court of Human Rights and other relevant sources. The manuals make it clear that the univocal definition of the two key concepts “hate speech” and
what is a “religious symbol” cannot be derived from the case-law of the Court. I do not
think this is a disadvantage, but it leaves an important job to be done in this field by the
public authorities concerned. As a starting-point they have to take into account the recognition of the rights of the individuals concerned in Articles 9 and 10 – rights which
refer to some very fundamental values in our societies, in our cultures – related to the
importance of the recognition and the respect of the autonomy of the individual. At the
same time, none of these rights is absolute, at least when exercised in the so-called
. . . . . . 147
ROUND TABLE
forum externum or public space. Article 17 of the Convention makes it clear that there
are limits and anyhow it is obvious that individuals have their own responsibility in exercising the rights conferred to them – responsibilities towards other individuals, responsibilities to groups and to society as a whole.
As I said, I would like to focus on public authorities. Public authorities have to balance two responsibilities and two attitudes; on the one hand, the duty to uphold neutrality and impartiality as concerns the rights discussed here today and, on the other
hand, they have the duty to foster pluralism and tolerance and to protect the rights and
freedoms of others. In particular the second paragraph of Articles 9 and 10 provides a
basis for the public authorities to perform their duties in this respect. With regard to
the restriction of the rights and freedoms in question, I would like to recall the following
well-known three sets of criteria: the requirement that restrictions are prescribed by
law, that they are necessary in a democratic society and reflect a pressing social need
and the requirement that the interference is proportionate to the legitimate aim. I think
that it is a challenge for any public authority concerned to apply the second paragraph,
the so-called paragraph on restrictions, both in general when it concerns the relevant
legislation as well as in practice when it concerns a specific situation.
As I already said, we do not find any recommendations in the manuals. Again, I do
not want to blame the authors since the sources which they have analysed could not
bring them further in drafting guidelines that might guide the reader, the public authorities concerned – in particular guidelines based on principles as they can be derived
from an analysis of case-law of the European Court of Human Rights and other relevant
sources in international law. It is very interesting that this rich source of information
now has been channelled into these two manuals of the Council of Europe with its 47
member states reflecting great diversity, indeed cultural diversity, which is the topic of
this conference. It is an important duty for the Court to cope with the huge amount of
cases, but also it is not an easy job for those interested to follow the work of the Court
with the growing volumes of its case-law. The application of the guidelines is contextdriven as we can see in both manuals. The Court recognises in its case-law that states
have a margin of appreciation and it is no doubt a challenge for public authorities to
strike a fair balance between competing rights and interests at stake.
Before concluding let me make a distinction between three categories of public authorities: those elaborating the legislation and policy-making in general; those ensuring
its implementation; and those working in the courts. It is a duty of every legislative body
vis-à-vis the public to be as precise as possible. I quote from one of the manuals: the law
must be formulated with sufficient precision to enable the individual to regulate his or
her conduct. Although this may easier be said than done, there is clearly a requirement
of legal certainty. The legislation – the product of the legislative process – should also
be checked with regard to the Strasbourg Court. One could say that it is a challenge for
every legislature to make sure that its product is “Strasbourg-proof ” so as not to run the
risk of subsequently being criticised by the Court. Also for that reason is it important
to have these guidelines contained in the manuals and to make the case-law of the Court
accessible to advisors in the legislative process.
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MR MARTEN OOSTING
I shall say just a few sentences about my own daily job as member of the Council of
State. As an advisory body of state legislation we also analyse the case-law of the Strasbourg Court when assessing and giving advise on proposed bills and whether they are
applicable. So from my daily practice I welcome manuals like these and if I may add a
wish: it will be interesting not only to update these manuals regularly, but also to extend
the range of volumes to other relevant articles of the Convention.
The public authorities do not only consist of legislative actors but also of those ensuring the implementation of the policies, for example the police, public prosecutors
and public institutions in various fields as mentioned in the manuals. In order words:
for people who work daily with the implementation of public policies, and who ask
themselves questions with regard to Articles 9 and 10, like which behaviour to promote
and accept or prohibit and not protect in the specific situation. This requires the ability
of the authorities concerned – the civil servants – to draw borders when applying and
using the margin of appreciation in specific situations. I think it is important to be
aware of the fact that particularly in the implementation of policy-making, for example
by the police, there is often not much time for reflection, less time than for a Court or
actors in the legislative process. Hence the importance of manuals like these to be as
clear and accessible as possible. I think the two books qualify in that respect.
Finally, the work as laid down in the manuals is important for the work of the domestic courts which have to keep a clear eye on what is going on in Strasbourg as well as in
Luxembourg. Reflecting on my previous twelve years as national ombudsman in the
Netherlands, the work laid down in these manuals may also be of importance for ombudsmen, who as far as I understand now exist in almost all 47 countries of our continent.
In concluding, for the authorities – not only public authorities – but also the wider
public like the media the tool kit offered in these manuals is very useful. It is very useful
to have access to the case-law contained for example in Chapter VIII of the manual of
Mr Evans, and in Annex II of the manual of Dr Weber to have examples of national
measures and initiatives in various countries of Europe which may be used as best practices. It is very stimulating to learn from relevant experiences in other countries. Hence,
I welcome these publications and congratulate the authors as well the Council of
Europe for having commissioned this project. It underlines the importance of the work
of the Council of Europe and I can only wish that the manuals be widely spread, studied
and actively used in the interest of the rights concerned and of course in the interest all
individuals concerned in Europe.
Thank you very much.
. . . . . . 149
CONCLUDING REMARKS
Mr Jan E. Helgesen
President of the European Commission for Democracy through Law
(Venice Commission)
I shall start by thanking the two organising institutions, the Dutch Ministry of the Interior and Kingdom Relations and the Directorate General for Human Rights and Legal
Affairs of the Council of Europe.
The subject of this conference is more than important: it is really one of the few crucial topics on the human rights agenda towards the end of this decade. If we are not able
to tackle these challenges, we risk losing territory already conquered in the fight for
human rights.
The practical arrangements have been perfect, as usually is the case when a conference takes place in the Netherlands. When I thank the two organising institutions for
the excellent performance, on this point I know I am supported by each and every participant.
From now on, I dare not claim that I speak on behalf of each and every participant.
On the contrary, these concluding remarks are my concluding remarks. This is certainly
not going to appear as a concluding document negotiated by the conference. Furthermore, when addressing you I do not represent the two organising institutions. Neither
do I represent the participants. As far as some of my remarks are concerned, I know I
interpret the points of view and opinion of the Venice Commission; this cannot, however, be said in general.
Ladies and gentlemen,
Diversity is a non-negotiable feature of modern society, whether one likes it or not,
whether one views it as an asset or as a problem. Diversity is there, and will not go away.
There is no use trying to counter it or trying to demonstrate that is has downsides.
Diversity is a dynamic phenomenon, developing as society develops. It is a contextual phenomenon too, specific to a specific place and period. This does not mean that
States do not face very similar issues.
As enriching as cultural diversity is, managing it is a challenge. It is so, because recognising everyone’s equal entitlement to individual rights and freedoms inevitably leads
to tensions. These are only inherent and healthy in a society, provided that they are adequately and proactively managed.
. . . . . . 153
CONCLUDING REMARKS
What is needed is courage, both intellectual and political.
First, the courage is needed to engage in discussions like we have been doing these
two days. If we go some 60 years back, when human rights norms were established, the
founding fathers struggled and argued for the recognition that all rights were of equal
importance. Today, as we are to celebrate the 60th anniversary of the Universal Declaration on Human Rights, it is of paramount importance to recognise that the human
rights norms must be interpreted and applied in present-day societies. They cannot be
interpreted and applied in abstracto. Yes, human rights are indivisible, inseparable. But
the challenges in our societies bring us to discuss how the different human rights should
be weighed and balanced when there is a conflict between them. This is an inevitable
evolution. The more sophisticated the protection of human rights is, the tighter the net
or web of human rights norms is, the more frequently conflicts of human rights norms
will arise.
After the intellectual and political discussion, the next challenge is to have the courage to implement these conclusions in our culturally diverse societies. When addressing
this basic challenge, let me be more concrete. The days have passed when one could legitimately argue that freedom of expression is the sacred, the fundamental human right.
That was a valid point of view as the revolutions hit Europe and North America in the
1700s. This has been a valid point centuries thereafter, when the democratic states were
established.
Today, freedom of expression has to be balanced with other rights, which also are
basic and fundamental. Furthermore, when one is to assess the degree of democracy
and of democratic spirit of a given society, freedom of expression is not the only yardstick. Freedom of expression cannot be perceived as an isolated right: it must be seen
as one element in a sequence of norms protecting the cluster of ideas and rights. First, I
may think what I want, no one can prohibit or dictate my thoughts; this is freedom of
thought and conscience. Then: my thoughts can relate to supernatural entities, I can believe in a God, or not. This is freedom of conscience and religion. Then, I can go out and
present my inner thoughts to the world: this is freedom of expression. Then, I can join
other individuals who are fighting for the same ideas: this is freedom of association. Finally, I can enter into the political arena; I can join a political party and struggle to be
elected to Parliament: this is the right to political participation.
Freedom of expression is not an isolated value, is an integrated value in a sequential
line of rights and freedoms.
It is clear to me that in a modern, culturally diverse society the necessary limitations
which restrict the enjoyment of all these rights must differ from one right to the other.
My inner thoughts cannot be restricted or dictated, not even by a democratically elected regime, while my freedom to express my inner thoughts must be restricted by a democratically elected regime in order to protect the legitimate rights and freedoms of
others.
In recent years, societies seem to be experiencing more difficulties in handling such
diversity-generated tensions. A certain degree of fear – fear for one’s security as well as
fear of losing one’s identity – confusion and lack or orientation can be observed. This
has been exploited by certain politicians, who have invoked past liberal achievements
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MR JAN E. HELGESEN
with anti-liberal purposes. On the other hand, confused young people have been radicalised by extremist groups which have dissociated them even more from mainstream
society.
Reference has repeatedly been made during the conference to the fact that the fight
against terrorism is a source of threat to the survival of harmonious culturally diverse
societies. I personally share this fear, and so does the Venice Commission. The Venice
Commission has on different occasions been presented with this issue. The official title
of the Venice Commission – European Commission for Democracy through Law – presupposes that democracy and the rule of law are twins, two sides of the same coin. Most
unfortunately, however, the fight against terrorism has caused a conflict between democracy and human rights. The majority in one democratic State wishes to treat certain individuals harshly, because they might be terrorists. From this perspective, these
individuals are not protected under the rule of law. Again, we have to be courageous,
both intellectually and practically. The Venice Commission has held very clearly that
even suspected terrorists enjoy full protection under the rule of law. I was extremely
pleased to note that this was exactly the position taken by the Supreme Court of the
USA in a very important judgment of June this year (Boumediene v. Bush). The applicant was a prisoner in Guantánamo, claiming that he was protected under the Constitution of the Unites States. The argument of the US Administration is, as we all know,
that these suspects have placed themselves outside the rule of law, and furthermore that
the Constitution cannot apply during these dark and sinister times for the nation. The
answer of the Supreme Court in the judgment I am referring to is crystal clear: Justice
Kennedy, on behalf of the majority, states that upholding the principles of the rule of law
“does not undermine the Executive’s powers as Commander in Chief. On the contrary,
the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial
Branch.” Furthermore, Justice Kennedy adds these very fundamental observations:
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”
Ladies and gentlemen,
I shall leave the abstract and theoretical out, and be more focussed on concrete issues.
What is the role of national authorities in fostering cultural diversity? This is indeed
the crucial question: how should we take forward the various challenges that have been
identified during the two days of our conference? There have been some specific suggestions to which I will turn later, but I believe there are also some general points which
can legitimately be drawn from our discussions.
First of all, ladies and gentlemen, I think we have to be honest and admit that many
Council of Europe member states, if not all of them, are confronted with very concrete
and serious problems. There is no point in denying them for reasons of politically correctness; this will only allow the problems to get worse.
All European states face similar dilemmas which I would qualify as human rights
policy questions.
. . . . . . 155
CONCLUDING REMARKS
These are questions of human rights policy, in the first place, because European
human rights law, as embodied in the case-law of the European Court of Human Rights,
while establishing some important and helpful legal parameters and principles for addressing issues such as limits to freedom of expression or the place of religion in a democratic society, does leave a fairly broad margin of appreciation to state parties as to the
policy choices that need to be made when it comes to managing diversity in today’s societies.
These are policy choices for a second reason too. In the modern, globalised world,
there is also a strong international and foreign policy dimension to decisions that are
made by national authorities in matters of immigration, integration and accommodating (or not accommodating) cultural diversity.
I would only recall the outcry the Danish cartoons issue gave rise to in the Muslim
world. In reply to those who believe that this was a one-off situation which will not reoccur in the future, I would simply refer to the ongoing debates in the UN General Assembly about the so-called question of defamation of religions. This debate is very
much alive as shown by the special session on this subject at the UN Headquarters in
New York during the same days as our conference in The Hague.
In addition, we have heard that while the law is an essential instrument for drawing
the limits to tolerance, purely legal approaches are not sufficient or even helpful to address many concrete problems in this area. As we have heard, many of the issues arise
out of wrong perceptions and lack of trust amongst different groups.
Against this background, there are basically two possible approaches to tackling
these issues.
The first one is the “wait and see” approach: an essentially passive approach, through
which tolerance ends up equating with indifference, and different groups end up cohabiting in parallel, closed realities.
The second approach, which has been largely supported by the participants in this
conference, is a proactive one, calling for “make it happen” strategies. This approach requires that leadership be committed to diversity, and sees it not just as an issue to tackle,
but instead as an asset to exploit in order to achieve a more cohesive, more culturally
rich and more prosperous society.
“Diversity leaders” must publicly express and show their commitment to diversity.
They must lead by example.
They must treat diversity management as a matter of “democratic technique”; it will
be natural in a democracy to have concrete problems and tensions. Leaders must not be
afraid of these, and must not allow these to be inflated by those who want to exploit
them (whether by populists, by extremists or by the media).
A human rights approach vigorously pursues equal rights and dignity to all, including gender equality and respect for the rights of LGBT people. This human rights approach in practice implies that reciprocal concessions have to be made; all will have to
accept certain restrictions in the interest of society as a whole. To express it with the
words of the White Paper on Intercultural Dialogue, it requires respect for the individual as a human being, reciprocal recognition (in which this status of equal worth is rec-
156 . . . . . .
MR JAN E. HELGESEN
ognised by all) and impartial treatment (where all claims arising are subject to rules that
all can share).
Adopting a human rights approach does not mean that each and every problem
should be treated as a question of fundamental principles; many questions should
rather be addressed in a pragmatic manner, playing down the issue, lowering the stakes
and finding practical solutions. We heard of a constructive example of a big Canadian
Bank which by installing a separate kitchen managed to cater for the different culinary
habits of its culturally diverse employees.
Leaders should, very importantly, help to overcome the fear and lack of mutual trust,
both of the majority population towards minorities, and of minorities towards the majority. They should resolutely open avenues for dialogue, promote mutual understanding and help develop a common language. This will lower the thresholds of sensitivity
to criticism and develop mutual trust. Dialogue is necessary at all levels but is especially
important at the local level. The Council of Europe White Paper on Intercultural Dialogue contains very constructive ideas. It stresses the need to create “meeting places” as
well as occasions to meet, in order to avoid that parallel societies coexist with no interaction among each other. Many of these meeting places are actually at the local level.
As I said before, leaders should publicly show their understanding and commitment
to fostering intercultural dialogue. They should in particular promptly take public position on burning issues, because refraining from doing so may cause the situation to
escalate. In this respect, the prompt reaction of the Dutch government to the situation
caused by the movie Fitna was in my view preferable to that of the Danish government
following the publication of the notorious cartoons.
Ladies and gentlemen,
Culturally diverse societies are confronted with several challenges.
Firstly, opening up to new cultures should not mean giving up dominant cultures,
but instead developing and enriching them. Authorities face the challenge of explaining
this to all the stakeholders in order to remove fear and create an interest in intercultural
dialogue.
Europe is committed to democracy, the rule of law and respect for human rights.
These values are essential to our societies and are the non negotiable framework for
managing diversity. While some specific traditional practices are not compatible with
human rights principles, most of the specific needs of different groups can be accommodated within this framework without any difficulty. There can be scope for different
interpretations of what certain human rights principles require in specific situations,
when this is the object of consensus within the society. However, the existing normative
framework of international and European human rights law must be respected by all.
Universality of human rights must be firmly upheld, but universality of all human
rights, including economic and social rights. Many problems relating to cultural diversity are problems of social justice and non realisation of social and economic rights for
some sectors of the population.
In addition, it is absolutely essential that effective measures are taken to combat discrimination and racist attitudes. We need to live together as equals. In order to be effec-
. . . . . . 157
CONCLUDING REMARKS
tive, data collection remains essential to discover the extent of discrimination and to
devise policies to counter it.
Ladies and gentlemen,
I should now like to pull together some of the many recommendations which were
made during the discussions.
I do not want to duplicate the work of the three rapporteurs, so I will confine myself
to a few points only.
The point I made earlier about the need for proactive leadership is also reflected in
some of the specific recommendations.
The need for the State to engage in dialogue includes dialogue with religious communities. State neutrality vis-à-vis religion should not mean state passivity or indifference.
As concerns criminal law, incitement to hatred should be prosecuted to the extent
that it causes harm to individuals or groups and incites to violence. The Council of
Europe could consider clarifying the concept of hate speech as opposed to permissible
offensive criticism of a religion.
In addition, the suggestion was made for the Council of Europe to prepare a checklist of all the principles to be taken into account, in the light of the Strasbourg case-law,
for decision-makers confronted with questions of whether and how to respond to particular statements that fuel tensions.
Clearly the media play a crucial role, for better or for worse, as regards tensions in
society. They can fuel tension or deflate it, they can be, or not be, a channel for promoting dialogue and tolerance. National media regulatory authorities should abide by national diversity policies and possibly reflect the diverse composition of society.
Self-regulation by the media should be further encouraged, and it is vital to ensure
that the cultural diversity of society be duly reflected among the media professionals.
Access to the media for minorities should be ensured.
Genuine participation and inclusion of all groups in decision-making processes is
essential for any democratic society, for engaging all sectors of society in the common
life of the community, in short for living together. As we said earlier, perceptions and
feelings are important in the management of cultural diversity. Members of minority
groups should be able to feel at home in society. An interesting suggestion was made to
the Venice Commission that it should look into the constitutions of member states in
order to examine to what extent their wording is sufficiently open to the realities of cultural diversity.
Freedom of assembly and association are essential vehicles for such participation.
There is a lack of implementation of ECHR principles in this area by national and local
authorities. Training of local authorities and law enforcement agencies, including in the
management of diversity, in member states appears to be a priority need which should
be duly considered by the Council of Europe.
A concrete suggestion to the Council of Europe is to provide a forum for exchanging
good practice between the member states as regards religious freedom in culturally diverse societies. The Dutch government’s guidelines to municipalities on cemeteries and
158 . . . . . .
MR JAN E. HELGESEN
accommodating funeral rites represent an example which could be of interest to several
other states.
As was repeated many times, education is absolutely essential to reaching mutual
understanding and making intercultural dialogue possible. This includes education
about all religions from an objective point of view. Schools should become more reflective of the realities of cultural diversity.
Strong political leadership is the essential precondition for ensuring that all these
measures address the causes and not the symptoms of the difficulties which intercultural dialogue has experienced.
One concrete step towards such moral leadership which could be considered is the
drawing up of a general declaration of the Committee of Ministers on human rights in
culturally diverse societies. I believe that this question is already being examined by the
competent inter-governmental bodies of the Council of Europe.
I wish to thank once again the Dutch Ministry of the Interior and Kingdom Relations
and the Directorate General of Human Rights and Legal Affairs of the Council of Europe, as well as the many staff in Strasbourg and The Hague who worked very hard to
make this happen.
I also thank the interpreters for making intercultural dialogue possible during our
conference. Thank you all for your attention and your very active participation.
. . . . . . 159
APPENDICES
Appendix 1
Declaration by the Committee of Ministers on human rights in
culturally diverse societies1
The Committee of Ministers of the Council of Europe,
Noting the existence of culturally diverse societies in Europe and underlining that
diversity is a source of enrichment;
Recalling the principle of equal dignity of all human beings from which derives the
principle of equal enjoyment of human rights by all members of society;
Reaffirming that all human rights are universal, indivisible, interdependent and interrelated;
Being convinced that the existing international human rights standards provide a
solid common basis for social cohesion and the peaceful and harmonious development
of societies;
Recalling that pluralism and social cohesion are essential elements for our democratic societies; they are built on the genuine recognition of and respect for diversity
and fair treatment for everybody;
Recalling that diversity calls for tolerance and non discrimination, and that it cannot
be invoked to justify human rights infringements;
Recognising the importance of intercultural dialogue and taking into account the
Council of Europe’s White Paper on Intercultural Dialogue (May 2008);
Underlining that human rights are an essential basis for policies and action of public
authorities as well as a common value basis for relations between individuals and between groups in socially inclusive societies;
Underlining that living in a democratic society entails rights and duties for all its
members,
Stresses the obligation for member states, as the ultimate guarantors of the principle
of pluralism, to secure everyone’s effective enjoyment of human rights, especially those
enshrined in the European Convention on Human Rights, and that the respect of this
obligation is of particular importance towards those who are more vulnerable to discrimination;
1. Adopted by the Committee of Ministers on 1 July 2009 at the 1062nd meeting of the
Ministers’ Deputies.
. . . . . . 161
APPENDICES
Emphasises that, in order to reconcile respect for different identities with social cohesion and avoid isolation and alienation of certain groups, it is indispensable to regard
respect for human rights and fundamental freedoms as a common basis for all: no cultural, religious or other practices or traditions can be invoked to prevent any individual
from exercising his or her basic rights or from participating actively in society, nor shall
anyone’s rights be unduly restricted on account of their religious or cultural practices;
Calls on opinion leaders, including political leaders, to speak and act resolutely in
such a way as to foster a climate of respect through dialogue based on a common understanding of universally recognised human rights, and calls on member states to
adopt practical measures to that effect, such as promoting education as a key to dialogue and mutual understanding, and supporting social inclusion, notably with respect
to participation in the decision-making process;
Emphasises that the preservation and promotion of a democratic society based on
respect for diversity requires resolute action against all forms of discrimination. Racial
and xenophobic violence is a particular affront to human dignity, and requires special
vigilance and a vigorous reaction from public authorities;
Recalls that the prohibition of discrimination may be accompanied by appropriate
measures, such as through action plans, support programmes or any other government
action, to ensure the realisation of the human rights of all;
Recalls that freedom of expression, freedom of assembly and association, and freedom of thought, conscience and religion are among the foundations of democratic societies and are instrumental for the pluralism which characterises them. These rights
are closely interrelated and equally fundamental in a democratic society;
Draws particular attention to the fact that freedom of expression constitutes one of
the essential conditions for the progress of society and for the development of every
human being, including in the context of culturally diverse societies. Freedom of expression applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock
or disturb the state or any sector of the population. At the same time, the exercise of
freedom of expression is not without any duties and responsibilities, and if it involves
in particular incitement to hatred and violence, it will not be protected;
Underlines that when freedom of expression, freedom of assembly and association,
and freedom of thought, conscience and religion are at stake, states must strive to strike
a fair balance between them, while ensuring that any restriction be prescribed by law,
necessary in a democratic society and proportionate to a legitimate aim.
162 . . . . . .
Appendix 2
Programme
Human rights in culturally diverse societies:
challenges and perspectives
The Hague, 12-13 November 2008
Day one
8:30
9:30
9:30
9:35
9:55
10:15
11:15
11:45
Registration
Plenary session chaired by Ms Eva Smith-Asmussen, Chairperson of the
European Commission against Racism and Intolerance (ECRI)
Video message by the Right Honourable Terry Davis, Secretary General of
the Council of Europe
Welcome address by Ms Maud de Boer-Buquicchio, Deputy Secretary General of the Council of Europe
Keynote speech by the Minister of the Interior and Kingdom Relations of the
Netherlands, Ms Guusje ter Horst PhD
Challenges faced by culturally diverse societies in Europe
Mr Thomas Hammarberg, Council of Europe Commissioner for Human
Rights (video message)
Ms Corien Jonker, Chair of the Committee on Migration, Refugees and Population of the Parliamentary Assembly
Ms Ilze Brands-Kehris, Acting First Vice-President of the Advisory Committee of the Framework Convention for the Protection of National Minorities (FCNM)
Mr Heiner Bielefeldt, Director of the German Human Rights Institute
Break
Integration and respect for diversity – ensuring equal enjoyment of human
rights and preserving social cohesion
Ms Eva Smith-Asmussen, Chairperson of the European Commission
against Racism and Intolerance (ECRI)
. . . . . . 163
APPENDICES
Ms Isil Karakaş, Judge at the European Court of Human Rights
Mr Donald Oliver, Senator for Nova Scotia, Canada
Ms Esther Maurer, Member of the Congress of Local and Regional Authorities’ Committee on Social Cohesion and Rapporteur on Migration Issues
12:45
Discussion
13:30
Lunch
15:00
Workshops
Workshop I: Freedom of religion and the role of the state – more than setting an impartial and neutral framework?
Moderator: Mr Marc Tysebaert, General Advisor at the Federal Ministry of
Justice of Belgium
Mr Malcolm Evans, Dean of Bristol University Law Faculty (United Kingdom)
Ms Dounia Bouzar, Anthropologist in religion as a social and cultural phenomenon; Researcher at the French Institute of Higher National Defence
Studies (IHEDN)
Ms Barbara John, Member of ECRI
Workshop II: How to find a proper balance between freedom of expression and protection against “hate speech”?
Moderator: Mr Michael Head, Member and former Chair of the European
Commission against Racism and Intolerance (ECRI)
Ms Bissera Zankova, Member of the Steering Committee on the Media and
New Communication Services (CDMC)
Mr Githu Muigai, UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance
Ms Finola Flanagan, Member of the European Commission for Democracy
through Law (Venice Commission); Member of the Management Board of
the European Union Agency for Fundamental Rights
Workshop III: Exercise of the rights to freedom of association and peaceful assembly by
persons and groups with varied identities: how to ensure proper public participation?
Moderator: Ms Nina Belyaeva, Member of the OSCE/ODIHR panel of experts on the freedom of assembly
Ms Sanela Bešić, Co-ordinator of the Council of Roma of Bosnia and Herzegovina
Mr Michael Hamilton, Transitional Justice Institute, University of Ulster,
(United Kingdom); Secretary of the OSCE/ODIHR Panel of experts on Freedom of Assembly
17:00
Reception
Day two
9:30
Plenary session chaired by Mr Philippe Boillat, Director General of Human
Rights and Legal Affairs of the Council of Europe
164 . . . . . .
APPENDIX 2
9:30
9:50
10:20
10:45
11:00
12:00
12:30
14:00
Accommodation practices linked to cultural differences, the Quebec experience: Mr Gérard Bouchard, Quebec Commission co-chair of the Consultation Commission on Accommodation Practices
Reports of the workshops by the moderators
Discussion
Break
The way forward – living together and respecting diversity
Mr Tariq Ramadan, Professor of Islamic Studies, visiting professor of Citizenship and Identity at Erasmus University Rotterdam and Senior Research
Fellow at Oxford University
Ms Mominat Omarova, Chairperson of the Steering Committee for Equality between Women and Men (CDEG)
Ms Gabriella Battaini-Dragoni, Council of Europe Co-ordinator on Intercultural Dialogue
Mr Cristoph Spreng, Conference of INGOs
Ms Anastasia Crickley, Chairperson of the Management Board of the European Union Agency for Fundamental Rights
Discussion
Lunch
Closing remarks: Mr Jan Helgesen, President of the European Commission
for Democracy through Law (Venice Commission)
. . . . . . 165
Appendix 3
Participants
Speakers/Orateurs
Chair of Day 1/Présidente du 1er jour
Ms Eva Smith-Asmussen
Chair of the European Commission against Racism and Intolerance (ECRI)/Présidente de la
Commission européenne contre le racisme et l’intolérance (ECRI), Council of Europe/Conseil
de l’Europe
Video message/Message vidéo
Mr Terry Davis
Secretary General of the Council of Europe/Secrétaire Général du Conseil de l’Europe
Welcome address/Allocution de bienvenue
Ms Maud de Boer-Buquicchio
Deputy Secretary General of the Council of Europe/Secrétaire Générale Adjointe du Conseil
de l’Europe
Keynote speech/Discours
Ms Guusje Ter Horst
Minister of the Interior and Kingdom Relations of Netherlands/Ministre de l’Intérieur et des
Relations du Royaume des Pays-Bas, Ministry of the Interior and Kingdom Relations of
Netherlands/Ministère de l’Intérieur et des Relations au sein du Royaume des Pays-Bas
Challenges faced by culturally diverse societies in Europe/Les défis
des sociétés culturellement diverses en Europe
Video message/Message vidéo
Mr Thomas Hammarberg
Council of Europe Council of Europe Commissioner for Human Rights/Commissaire aux
droits de l’Homme du Conseil de l’Europe
166 . . . . . .
APPENDIX 3
Ms Corien Jonker
Chair of the Committee on Migration, Refugees and Population of the Parliamentary
Assembly/Présidente du Comité des migrations, des réfugiés et de la population, Assemblée
parlementaire, Council of Europe/Conseil de l’Europe
Ms Ilze Brands-Kehris
First Vice-President of the Advisory Committee of the Framework Convention for the
Protection of National Minorities (FCNM)/1re Vice-Présidente du Comité consultatif de la
convention-cadre pour la protection des minorités nationales (FCNM), Council of Europe/
Conseil de l’Europe
Mr Heiner Bielefeldt
Director of the German Institute for Human Rights/Directeur de l’Institut allemand pour les
droits de l’Homme, Berlin, Germany/Allemagne
Integration and respect for diversity/Intégration et respect de la
diversité
Ms Eva Smith-Asmussen
(ECRI) as above
M
me
Isil Karakaş
Judge at the European European Court of Human Rights/Juge à la Cour européenne des droits
de l’homme
Hon. Donald Oliver
Q.C., Senator for Nova Scotia, Canada/Sénateur pour la Nouvelle-Écosse, Canada, The Senate
of Canada, Ottawa, Ontario, Canada
Ms Esther Maurer
Member of the Congress of Local and Regional Authorities’ Committee on Social Cohesion
and Rapporteur on Migration Issues/Membre du Comité directeur pour la cohésion sociale
du Congrès des pouvoirs locaux et régionaux et Rapporteur sur la question de migration,
Council of Europe/Conseil de l’Europe
Workshop I/Atelier I
M. Marc Tysebaert
General Advisor in the Directorate General of Legislation and Liberty and Fundamental
Rights at the Federal Ministry of Justice/Conseiller général à la Direction générale de la
Législation et des Libertés et Droits Fondamentaux du SPF Justice, Bruxelles, Belgium/
Belgique
Professor Malcolm Evans
Dean, Faculty of Social Sciences and Law, University of Bristol/Doyen de la Faculté de Droit
et des Sciences Sociales, Université de Bristol, Senate House, Bristol, United Kingdom/
Royaume-Uni
Ms Barbara John
Member of the European Commission against Racism and Intolerance (ECRI)/Membre de la
Commission européenne contre le racisme et l’intolérance (ECRI), Council of Europe/Conseil
de l’Europe
. . . . . . 167
APPENDICES
Workshop II/Atelier II
Mr Michael Head
Member and former Chair of the European Commission against Racism and Intolerance
(ECRI)/Membre et ancien Président de la Commission européenne contre le racisme et
l’intolérance (ECRI), Council of Europe/Conseil de l’Europe
Ms Bissera Zankova
Steering Committee on the Media and New Communication Services (CDMC)/Comité
directeur sur les médias et les nouveaux moyens de communication (CDMC), Council of
Europe/Conseil de l’Europe
Mr Githu Muigai
United Nations Special Rapporteur on Contemporary Forms of Racism, Racial
Discrimination, Xenophobia and Related Intolerance/Rapporteur spécial des Nations Unies
sur les formes contemporaines de racisme, de discrimination raciale, de xénophobie et de
l’intolérance qui est associée
Ms Finola Flanagan
Member of the European Commission for Democracy through Law (Venice Commission)/
Membre de la Commission européenne pour la démocratie par le droit (Commission de
Venise), Council of Europe/Conseil de l’Europe
Workshop III/Atelier III
Ms Nina Belyaeva
Member of the OSCE/ODIHR panel of experts on the freedom of assembly/Membre du panel
d’experts de l’OSCE/ODIHR sur la liberté de réunion, President of the Interlegal Foundation,
NGO Coalition “We, the citizens!”, Moscow, Russian Federation/Fédération de Russie
Ms Sanela Bešić
Co-ordinator of the Council of Roma of Bosnia and Herzegovina/Coordinatrice du Conseil
des Roms de la Bosnie-Herzégovine, Sarajevo, Bosnia and Herzegovina/Bosnie-Herzégovine
Mr Michael Hamilton
Transitional Justice Institute, University of Ulster, Secretary of the OSCE/ODIHR Panel of
experts on Freedom of Assembly/Institut de justice transitoire, l’Université d’Ulster;
Secrétaire du Panel des experts sur la liberté d’assemblée de l’OSCE/ODIHR, United
Kingdom/Royaume-Uni
Chair of Day 2/Président du 2e jour
M. Philippe Boillat
Director General of Human Rights and Legal Affairs/Directeur général des droits de l’Homme
et des affaires juridiques, Council of Europe/Conseil de l’Europe
Speech/Discours
M. Gérard Bouchard
Quebec Commission co-chair of the Consultation Commission on Accommodation
Practices/Co-président de la Commission de Québec sur les pratiques d’accommodements,
Université du Québec à Chicoutimi, Chicoutimi (Québec), Canada
168 . . . . . .
APPENDIX 3
The way forward/La voie de l’avenir
Mr Tariq Ramadan
Professor of Islamic Studies, visiting professor of Citizenship and Identity at Erasmus
University Rotterdam and senior research fellow at Oxford University/Professeur des études
relatives à l’Islam, professeur invité de citoyenneté et identité à l’Université Erasmus de
Rotterdam et chercheur confirmé à l’Université d’Oxford, Erasmus University Rotterdam,
Netherlands/Pays-Bas
Ms Mominat Omarova
Chairperson of the Steering Committee for Equality between Women and Men (CDEG)/
Présidente du Comité directeur pour l’égalité entre les femmes et les hommes (CDEG),
Council of Europe/Conseil de l’Europe
Ms Gabriella Battaini-Dragoni
Council of Europe Co-ordinator on Intercultural Dialogue/Coordinatrice du Conseil de
l’Europe sur le dialogue interculturel, Council of Europe/Conseil de l’Europe
Mr Cristoph Spreng
Conference of INGOs of the Council of Europe/Conférence des OINGs du Conseil de l’Europe
Ms Anastasia Crickley
Chairperson of the Management Board of the European Union Agency for Fundamental
Rights/Présidente du Conseil de gestion de l’Agence des droits fondamentaux de l’Union
européenne
Presentation of manuals/Présentation des manuels
M. Philippe Boillat, as above
Dr Marten Oosting
Member of the Council of State and former National Ombudsman, Netherlands/Membre du
Conseil de l’Etat et ancien Médiateur (Ombudsman), Pays-Bas
Mme Anne Weber
Author of the hate speech manual/auteur du manuel sur le discours de la haine,
Représentation de l’UNHCR auprès des Institutions européennes à Strasbourg, Assistante
juridique, c/o Conseil de l’Europe
Mr Malcolm Evans, as above
Conclusions
Mr Jan Helgesen
President of the European Commission for Democracy through Law (Venice Commission)/
Président de la Commission européenne pour la démocratie par le droit (la Commission de
Venise), Council of Europe/Conseil de l’Europe
Member states/États membres
Albania/Albanie
Ms Ledia Hysi
Director of Legal Affairs and Treaties Department, Ministry of Foreign Affairs, Tirana
. . . . . . 169
APPENDICES
Armenia/Arménie
Ms Syuzanna Tsaturyan
Chief specialist, Ministry of Foreign Affairs, Legal Department, Yerevan
Austria/Autriche
Mr Gerhard Thallinger
Federal Chancellery, Legal Service, Dr./Legal Counsellor, Vienna
Mr Wendelin Ettmayer
Permanent Representative (Ambassador), Permanent Austrian Representation at the Council
of Europe, Strasbourg
Azerbaijan/Azerbaidjan
Mr Otari Gvaladze
Senior Adviser, Administration of the President of the Republic of Azerbaijan, Department for
Co-ordination of Law Enforcement Agencies, Baku
Mr Murad Najafbayli
Head of International Law and Treaties Department, Ministry of Foreign Affairs
Belgium/Belgique
M. Philippe Wery
Attaché, SPF Justice, Service des droits de l’Homme, Bruxelles
Ms Marian Vandenbossche
Flemish Government, Gelijke Kansen Vlaanderen Co-worker International Equal
Opportunities Policy, Brussels
Bosnia and Herzegovina/Bosnie-Herzégovine
Mr Maksim Stanišic
Assistant Minister, Ministry for Human Rights and Refugees, Sarajevo
Mr Samir Šlaku
Expert Advisor, Ministry for Human Rights and Refugees, Sarajevo
Croatia/Croatie
Ms Romana Kuzmanić Oluić
First Secretary, Department for the UN and Human Rights, Ministry of Foreign Affairs and
European Integration, Zagreb
Cyprus/Chypre
Ms Eleonora Nicolaides
Senior Counsel of the Republic, Office of the Attorney-General, Law Office of the Republic of
Cyprus, Nicosia
170 . . . . . .
APPENDIX 3
Czech Republic/République tchèque
Mr Martin Bouček
Deputy Director, Department of Human Rights, Ministry of Foreign Affairs, Prague
Denmark/Danemark
Mr Emil Paldam Folker
Head of section, Ministry of Justice, Copenhagen
Estonia/Estonie
Mr Kalle Kirss
Lawyer, Ministry of Foreign Affairs, Tallinn
Finland/Finlande
Ms Camilla Busck-Nielsen
Legal Officer, Ministry of Foreign Affairs, Helsinki
France
Mme Marie Mongin-Heuze
Rédacteur, Direction des Affaires juridiques, sous-direction des droits de l’Homme, Ministère
des Affaires étrangères, Paris
Germany/Allemagne
Ms Katja Behr
Regierungsdirektorin, Unit of the Agent for Human Rights, Federal Ministry of Justice, Berlin
Greece/Grèce
Mme Sofia Kastranta
Rapporteur, Special Legal Department, Ministry of Foreign Affairs, Athens
Hungary/Hongrie
Mr Zoltán Tallódi
Co-agent of the Ministry of Justice and Law Enforcement before the ECHR, Budapest
Italy/Italie
Ms Maria Vittoria Pontieri
Viceprefetto aggiunto, Ministero dell’Interno, Direzione Centrale per le Politiche
dell’Immigrazione e dell’Asilo
. . . . . . 171
APPENDICES
Latvia/Lettonie
Ms Liene Kondratjuka
Third Secretary, Ministry of Foreign Affairs, Riga
Lithuania/Lituanie
Mr Valdas Sakalys
Third Secretary, Ministry of Foreign Affairs, Vilnius
Malta/Malte
Mr Mark Pace
Deputy Permanent Representative, Permanent Represenation of Malta to the Council of
Europe, Strasbourg
Moldova
Ms Diana Pascaru
Counsellor, Ministry of Foreign Affairs and European Integration, Council of Europe and
Human Rights Directorate, Chisinau
Monaco
M. Jean-Laurent Ravera
Councellor, Cellule des droits de l’Homme et des Libertés Fondamentales, Département des
Relations Extérieures, Ministère d’Etat, Monaco
Montenegro/Monténégro
Mr Danilo Brajovic
Directorate for OSCE and COE, Ministry of Foreign Affairs of Montenegro, Podgorica
Netherlands/Pays-Bas
Ms Liselot Egmond
International Law Division, Ministry of Foreign Affairs, The Hague
Norway/Norvège
Mr Michael Reiersen
Higher Executive Officer, Royal Ministry of Justice and the Police, Oslo
Mr Kari Framnes
Head of Project, Ministry of Children and Equality, Department of Family Affairs and Equality
Poland/Pologne
Ms Monika Ekler
Legal Expert, Ministry of Foreign Affairs, Human Rights Division, Warsaw
172 . . . . . .
APPENDIX 3
Mr Miroslaw Luczka
Deputy Director, Department of the United Nations System and Global Issues, Ministry of
Foreign Affairs
Romania/Roumanie
Mr Octavian Stamate
First Secretary, Ministry of Foreign Affairs of Romania, Bucharest
Russian Federation/Fédération de Russie
Mr Andrey Nikiforov
Deputy Head, Humanitarian Cooperation and Human Rights Department, Ministry of
Foreign Affairs, Moscow
Serbia/Serbie
Ms Gordana Mohorovic
Senior Advisor, Head of Division for Implementation of Human Rights Conventions, Ministry
for Human and Minority Rights, Belgrade
Slovak Republic/République slovaque
Ms Jana Vnuková
Director of International Relations and Human Rights Department, International Law and
European Law Section, Ministry of Justice, Bratislava
Spain/Espagne
M. Ignacio Blasco
Chef du Service Juridique des droits de l’Homme, Madrid
Sweden/Suede
Ms Anna Erman
Legal Adviser, Ministry for Foreign Affairs, Stockholm
Switzerland/Suisse
Mme Dominique Steiger Leuba
Collaboratrice scientifique, Section droits de l’Homme et Conseil de l’Europe, Département
fédéral de justice et police, Berne
Ukraine
Ms Marianna Betsa
Second Secretary of the Embassy of Ukraine to the Kingdom of the Netherlands
. . . . . . 173
APPENDICES
United Kingdom/Royaume-Uni
Mr Ian Naysmith
Senior Policy Adviser, Department for Communities and Local Government, London
Other participants/Autres participants
Amnesty International
Ms Jill Heine
Legal Adviser, International Legal and Organisations Programme, Amnesty International,
London, United Kingdom/Royaume-Uni
Mr John Dalhuisen
Researcher, Amnesty International, London, United Kingdom/Royaume-Uni
Canada
Ms Esther van Nes
Political-Economic Officer, Embassy of Canada, The Hague, Netherlands/Pays-Bas
Conference of European Churches/Conférence des Églises européennes
Mr John Murray
Associate staff member, Conference of European Churches, Church and Society Commission,
Strasbourg, France
European Parliament/Parlement européen
Ms Kinga Gál
Member of the European Parliament, Hungary/Hongrie
Holy See/Saint-Siège
M. Florian Kolfhaus
Observateur permanent adjoint, Mission permanente du Saint-Siége, Strasbourg, France
International Lesbian/Gay Association
Mr Bjoern van Roozendaal
International Lesbian/Gay Association, European Region, Brussels, Belgium/Belgique
Mr Nigel Warner
Council of Europe advisor, International Lesbian/Gay Association, European Region,
Brussels, Belgium/Belgique
Guests of the host country/Invités du pays hôte
Ms Tessa Dopheide
Human Rights Legal Adviser, Ministry of Justice, The Hague, Netherlands/Pays-Bas
Prof. Dra. María Elósegui
Academic Expert, University of Saragosse, Faculty of Law, Facultad de Derecho, Zaragoza,
Spain/Espagne
174 . . . . . .
APPENDIX 3
Mr Arjan Hamburger
Ambassador at large for Human Rights, Ministry of Foreign Affairs of the Netherlands, The
Hague, Netherlands/Pays-Bas
Ms Joyce Hamilton
Board member, COC Netherlands, Amsterdam, Netherlands/Pays-Bas
Ms Anna Innocenti
Project Manager, Global Human Rights Defence, The Hague, Netherlands/Pays-Bas
Ms Petra Jonkers
Wetenschappelijke Raad voor het Regeringsbeleid (WRR), Scientific Council for Government
Policy, The Hague, Netherlands/Pays-Bas
Ms Laurien Koster
President, Dutch Equal Treatment Commission, Utrecht, Netherlands/Pays-Bas
Mr Tarlach McGonagle
Researcher, Institute for Information Law, Faculty of Law, University of Amsterdam,
Amsterdam, Netherlands/Pays-Bas
Ms Jarichje Moeshart
Project Assistant, Global Human Rights Defence, The Hague, Netherlands/Pays-Bas
Mr Wouter Nearings
COC Netherlands, Amsterdam, Netherlands/Pays-Bas
Ms Joyce Overdijk-Francis
Senior Advisor Municipalities, The Hague, Netherlands/Pays-Bas
Ms Jolien Schukking
Lawyer and former DH-DEV Chair, Bird&Bird International Law Firm, The Hague,
Netherlands/Pays-Bas
M. Christos Sirros
Délégué général, Délégation générale du Québec, Bruxelles, Belgium/Belgique
Mr Addie Stehouwer
Deputy National Ombudsman, Office of the National Ombudsman of the Netherlands, The
Hague, Netherlands/Pays-Bas
Ms Marjolein van Roosmalen
Legal adviser, Council of State, The Hague, Netherlands/Pays-Bas
Ms Odile Verhaar
Policy Officer, Dutch Equal Treatment Commission, Utrecht, Netherlands/Pays-Bas
Ms M.E. Wilbrink
Policy Official, Association of Dutch Municipalities (VNG), The Hague, Netherlands/PaysBas
Ministry of the Interior and Kingdom Relations, Netherlands/PaysBas
Mr Harke Heida
Director, Constitutional Affairs and Legislation
Mr Willem Pedroli
Head of Unit Constitutional Affairs
Mr Paul van Sasse van Ysselt
Legal Advisor, Constitutional Affairs and Legislation Department
. . . . . . 175
APPENDICES
Ms Pien M. van den Eijnden
Legal advisor, Constitutional Affairs and Legislation Department
Ms Joyce Verstappen
Junior Legal Advisor
Ms Maaike van Rij
Protocol and Events Division
Ms Lotte Helder
Constitutional Affairs and Legislation Department, Ministry of the Interior and Kingdom
Relations of Netherlands
Ms Margriet van Sisseren
Protocol and Events Division
Ms Geeta Nirandjan
Protocol and Events Division
Mr Vincent van Steen
Press Officer
Mr Gerard Boon
Legal Advisor
Mr René Mazel
Head WSG/Deputy Director
Ms Pauline van Haren
Legal Advisor
Council of Europe/Conseil de l’Europe
Directorate General of Human Rights and Legal Affairs/Direction générale des
droits de l’Homme et des affaires juridiques
M. Philippe Boillat
Director of Human Rights and Legal Affairs/Directeur des droits de l’Homme et des affaires
juridiques
Mr Jan Kleijssen
Director/Directeur, Directorate of Standard Setting/Direction des activités normatives
Mr Jeroen Schokkenbroek
Head of Department/Chef de Service, Human Rights Development Department/Service du
développement des droits de l’Homme
Mr Gerald Dunn
Administrator/Administrateur, Human Rights Law and Policy Division/Division du droit et de
la politique des droits de l’Homme, Co-secretary of the DH-DEV/Co-secrétaire du DH-DEV
Ms Ivana Hrdas Papadopoulos
Assistant/Assistante, Human Rights Law and Policy Division/Division du droit et de la
politique des droits de l’Homme
Mme Corine Goberville
Assistant/Assistante, Human Rights Development Department/Service du développement
des droits de l’Homme
Ms Catherine Varinot
Assistant/Assistante, Human Rights Law and Policy Division/Division du droit et de la
politique des droits de l’Homme
176 . . . . . .
APPENDIX 3
Ms Amélie Baudot
Council of Europe Trainee/Stagiaire du Conseil de l’Europe, Human Rights Law and Policy
Division/Division du droit et de la politique des droits de l’Homme
Steering Committee for Human Rights (CDDH)/Comité directeur pour les droits
de l’Homme (CDDH)
Mr Roeland Böcker
Government Agent to the European Court of Human Rights, Ministry of Foreign Affairs, The
Hague, Netherlands/Pays-Bas
Private Office of the Secretary General and Deputy Secretary General of the
Council of Europe/Cabinet du Secrétaire Général et de la Secrétaire Générale
Adjointe du Conseil de l’Europe
Mr Gianluca Esposito
Advisor
European Commission against Racism and Intolerance/Commission européenne
contre le racisme et l’intolérance (ECRI)
Ms Isil Gachet
Executive Secretary to ECRI
The European Commission for Democracy through Law (Venice Commission)/
Commission européenne pour la démocratie par le droit (Commission de Venise)
Ms Simona Granata-Menghini
Head of the Constitutional Co-operation Division, Secretariat of the Venice Commission
Mr Luois-Léon Christians
Professor, Leuven, Belgium/Belgique
Council of Europe Directorate General of Social Cohesion/Direction générale de la
cohésion sociale du Conseil de l’Europe
Ms Lucia Martin
Social Cohesion Development Division
Interpreters/Interprètes
Mme Eline Aitken
M. Hervé-Jean M. Armanet
Mme Karine Dreyfus
Mme Isabel Ann Freeman
Mme Claude Jean-Alexis
Mme Roopa Sukthankar
. . . . . . 177
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Council of Europe
F-67075 Strasbourg
www.coe.int/justice
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Human rights in culturally diverse societies: challenges and perspectives
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