Freedom of Religion for Muslims – on ‘Flemish’ Terms Only?
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UPPSALA UNIVERSITY EUROPEAN MASTER’S DEGREE IN HUMAN RIGHTS AND DEMOCRATISATION A.Y. 2016/2017 FREEDOM OF RELIGION FOR MUSLIMS – ON ‘FLEMISH’ TERMS ONLY? An Interdisciplinary Analysis of Four Proposals Impacting Freedom of Religion in Flanders, Post-Terrorist Attacks Author: Willem Vancutsem Supervisor: Victoria Enkvist ii I. Foreword Writing a dissertation is like setting out to climb that beautiful, lush, sun-clad mountain, right in front of your eyes. You get up and start walking, aiming to make it a nice and enjoyable walk – the mountain and its secrets are just waiting there for you to be discovered, and on your return you will be able to share all the beautiful things you unearthed there with the world. Yet when you start walking, you realize you only looked up. You did not see the deep ravines separating you from your destination. Nor did you notice the extensive forests you would have to find your way through, or the deep rivers you would have to cross. A little walk becomes a true adventure – an expedition that cannot succeeded without the help of others. A great thank you, therefore, goes to all those who were involved, and especially the following people. Anna-Sara, for being the perfect host, equipping us with all the necessities, including the indispensable semla, to bring the endeavour to a successful end. Victoria, for being the guide that was always there when needed, to look back at, and correct, the travelled paths, and give suggestions as to which road to take next. The Global Classroom people, for temporarily teleporting me to another universe, where I could gain new insights, and a little taste of paradise as a welcome distraction. The entire E.MA group, for being a continuous source of friendship and inspiration. And Lieve, who travelled the entire way with me, and successfully navigated the uncharted territory that is Swedish society, full of lagom, systembolaget, fika, and allemansrätt. Thank you. iii iv II. Abstract This dissertation presents an interdisciplinary analysis of four political proposals, affecting freedom of religion, that were made in Flanders in the aftermath of the terrorist attacks of 22 March 2016. These were the following: a suggestion to, constitutionally, no longer allow religious exceptions from the law; a proposal to criminalize expressions of ‘radicalism’; an attempt to ban the burkini, a swimming suit for Muslim women; and a political agreement to ban the practice of ritual slaughter without stunning. Fusing legal method with philosophy and political science, more specifically securitization theory and discourse theory, this thesis asks whether or not these proposals would violate the human right to freedom of religion, as codified in the ECHR. After first outlining a conscience- based philosophical justification for freedom of religion, it is argued that the ECtHR’s protection for this right is insufficient, following its problematic use of the limitation criterion of a ‘legitimate aim’ in art. 9(2). Through this, it is revealed, the ECtHR has unjustly allowed States to interpret and judge religions, so that its doctrine does not suffice to assess possible violations, and an alternative framework is needed. A thoroughly constructivist version of securitization theory, linked with identity constructions, it is argued, can provide this alternative, as it allows to asses violations based on the way in which manifestations of religion are discursively constructed as ‘threats’ to a ‘legitimate aim’, and can reveal whether or not this happens on the basis of an interpretation of, and value-judgment about, a religion as a whole. Applying this framework through a discourse analysis of selected newspaper articles, opinion pieces and parliamentary documents, it is then argued that each of the concerned proposals would violate this right. None of them complies with the requirement of a legitimate aim, as it is revealed that all proposals are based on a value-judgment about one religion: Islam. This, in turn, is the result of the particular identity construction driving these proposals: Flemish identity is being constructed against the Islamic ‘other’, resulting in the demand that Muslims abandon manifestations of their religion in order to become part of the Flemish ‘us’. This identity construction is incompatible with freedom of religion for Muslims, and alternatives, based on an inclusive identity that respects the implications of freedom of religion, must therefore be supported. Keywords: freedom of religion, human rights, European Convention of Human Rights, European Court of Human Rights, legitimate aim, threat, securitization theory, Flanders, identity, Islam, burkini, ritual slaughter, radicalism, terrorism, discourse analysis. v vi III. List of Abbreviations ECHR European Convention of Human Rights ECtHR European Court of Human Rights ECommHR European Commission of Human Rights GC Grand Chamber N-VA Nieuw-Vlaamse Alliantie (Flemish Separatist Party) SP.A Socialistische Partij Anders (Flemish Socialist-Democrat Party) CD&V Christen-Democratisch & Vlaams (Flemish Christian-Democratic Party) OpenVLD Open Vlaamse Liberalen en Democraten (Flemish Liberal-Democratic Party) MR Mouvement Réformateur (Walloon Liberal Party) UN United Nations vii viii IV. A Note on Referencing References in this dissertation are made according to the Chicago Manual of Style, accessible online at http://www.chicagomanualofstyle.org/home.html. Books and articles are therefore cited in-text, in the following way: (author year, page). Throughout this dissertation, a large amount of newspaper articles and parliamentary documents is referred to as well. Many of them are written by the same authors, or a combination of authors, and within the same year. This would make using the normal (author year) system somewhat less practical. Whenever a newspaper article, opinion piece or parliamentary document is cited, therefore, a small change in the citing system is made, that includes not just the year, but the exact date of publication, as follows: author, dd/mm/yyyy. To increase readability, moreover, these references are made in footnotes. Full references are provided in the bibliography at the end. ix x V. Table of Contents I. Foreword ........................................................................................................................ iii II. Abstract ........................................................................................................................... v III. List of Abbreviations ..................................................................................................... vii IV. A Note on Referencing ................................................................................................... ix V. Table of Contents ........................................................................................................... xi Introduction I. Research Questions and Rationale .................................................................................. 1 II. Research Design .............................................................................................................. 5 Part I I. Freedom of Religion: What and Why? The Case for Conscience .................................. 9 Pragmatic and Religious Justifications: Freedom of Religion as a Policy ...................... 9 Liberal Justifications: Religion as Another Form of Thought ...................................... 10 Conscience and Dignity as the Basis for Freedom of Religion ..................................... 12 II. The European Court of Human Rights and Freedom of Religion in the ECHR ........... 15 Freedom of Religion in the ECHR: Forum Internum vs. Forum Externum ................. 15 What are Manifestations? The Problematic Arrowsmith-test ....................................... 17 The Restrictions Clause: Hollowing Out Freedom of Religion Through the Criterion of a ‘Legitimate Aim’ ............................................................................................................... 19 1) The Case of Dahlab v. Switzerland (ECtHR 2001) ................................................... 20 2) The Case of Leyla Şahin v. Turkey (ECtHR GC 2005) ............................................ 22 3) The Case of Lautsi v. Italy (ECtHR GC 2001) .......................................................... 24 Conclusion ..................................................................................................................... 26 III. Securitization Theory and Freedom of Religion ........................................................... 28 Securitization Theory and Discourse: From Instrumentalism to Constructivism ......... 30 Identity and Freedom of Religion: Common Rules or a Threatening ‘Other’? ............ 33 Conclusion ..................................................................................................................... 35 IV. Methodology ................................................................................................................. 37 Analysing Identity: Subject Positions and Predications ................................................ 37 The Implicitness of Security ......................................................................................... 38 xi The Importance of Context ........................................................................................... 38 The Selection of Material for Analysis ......................................................................... 39 Part II V. Limiting Freedom of Religion: