American University International Law Review Volume 23 Issue 3 Conference: The Ninth Annual Grotius Lecture Article 4 Series 2007 Protection of Religious Minorities in Europe: The Council of Europe's Successes and Failures. Lauren C. Baillie Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the Civil Rights and Discrimination Commons, Human Rights Law Commons, and the International Law Commons Recommended Citation Baillie, Lauren C. "Protection of Religious Minorities in Europe: The ouncC il of Europe's Successes and Failures." American University International Law Review 23, no.3 (2007): 617-645. This Comment or Note is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. COMMENT PROTECTION OF RELIGIOUS MINORITIES IN EUROPE: THE COUNCIL OF EUROPE'S SUCCESSES AND FAILURES LAUREN C. BAILLIE" IN TR OD U CTION ........................................................................... 619 I. BA C KG R O UN D .......................................................................... 622 A. EUROPE'S RELIGIOUS MINORITY ISSUES ............................ 622 B. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AND THE PROTECTION OF RELIGIOUS M IN ORITIES ................................................... 623 C. THE EUROPEAN COURT OF HUMAN RIGHTS ....................... 624 D. THE RIGHT TO RELIGION N THE EUROPEAN COURT OF HUMAN RIGHTS' JURISPRUDENCE .................................... 626 1. R eligious A ttire ........................................................... 626 2. Greek National Day Cases.......................................... 627 E. THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES AND THE RIGHT TO RE LIG IO N ......................................................................... 627 F. THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES' ENFORCEMENT M ECHANISM .................................................................... 629 J.D. Candidate, American University, Washington College of Law, 2009; M.A., International Affairs, The George Washington University, Elliott School of International Affairs, 2005; B.A., Political Science, Yale University, 2002. I am grateful to the staff of the American University International Law Review, especially Daniele Schiffman, my editor, for their guidance and hard work. I would also like to thank Professors Fernanda Nicola and Ingrid Nifosi for their thoughtful insights. Finally, I would like to thank my family for their unwavering love, encouragement, and support in everything I do. 617 618 AM U. INT'L L. REV. [23:617 G. THE RIGHT TO RELIGION IN ADVISORY COMMITTEE RE PO RTS .......................................................................... 630 II. AN AL Y SIS ................................................................................. 632 A. THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES ADDRESSES THE DEFICIENCIES IN THE HUMAN RIGHTS CONVENTION'S PROTECTIONS OF RELIGIOUS MINORITIES ........................ 632 B. BOTH THE HUMAN RIGHTS CONVENTION AND THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES FAIL TO ADEQUATELY ENFORCE THE RIGHTS OF RELIGIOUS MINORITIES ........... 635 C. DESPITE ITS FAILINGS IN ENFORCING THE RIGHTS OF RELIGIOUS MINORITIES, THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES STANDS IN A UNIQUE POSITION TO FURTHER THE RIGHTS OF RELIGIOUS MINORITIES ........... 639 D. THE RELUCTANCE OF MEMBER STATES TO VEST THE COUNCIL OF EUROPE WITH MORE POWER OVER DOMESTIC AFFAIRS HINDERS ANY MOVE BY THE COUNCIL TO MODIFY THE JURISDICTION OF THE EUROPEAN COURT OF HUMAN RIGHTS ............................ 639 III. RECOM M ENDATIONS ........................................................... 640 A. REQUIRE ALL MEMBER STATES TO RATIFY THE FRAMEWORK CONVENTION FOR THE PROTECTION OF N ATIONAL M IN ORITIES .................................................... 641 B. INCREASE THE ADVISORY COMMITTEE'S INDEPENDENCE FROM THE COUNCIL OF MINISTERS AND AUTHORITY TO ISSUE O PIN ION S ............................................................... 641 C. THE ADVISORY COMMITTEE SHOULD TAKE A MORE ACTIVE ROLE IN THE DECISION-MAKING PROCESS TO ENSURE THAT THEIR OPINIONS ARE BASED ON ACCURATE INFORMATION ................................................ 642 D. PERMIT INDIVIDUALS, GROUPS, AND OTHER STATES TO INVOKE THE PROTECTIONS OF THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL M IN ORITIES ..................................................................... 643 2008] PROTECTION OFRELIGIOUS MINORITIES IN EUROPE 619 E. BRING CASES AND REQUEST ADVISORY OPINIONS FROM THE EUROPEAN COURT OF HUMAN RIGHTS ON PROTECTIONS FOR RELIGIOUS MINORITIES AFFECTED BY NEUTRAL OR GENERAL LAWS ....................................643 IV . C O N CLU SIO N ......................................................................... 644 INTRODUCTION With the European Union ("EU") expanding, secular Europe finds itself faced with an increasingly religious populace. Recent debates over headscarves and legislation on religion illustrate Europe's discomfort in making room for its religious minorities.' Relieving this discomfort, however, may not be as difficult as the EU anticipates, largely because the framework to do so is already in place. As the first multi-national European organization formed at the end of the Second World War, the Council of Europe (the "Council") has already taken the first steps towards Winston Churchill's vision of a "United States of Europe."2 Through a series of conventions, monitoring bodies, and an influential and well-respected court, the Council of Europe has developed the strongest human rights enforcement mechanism in the world today.3 As Europe grows ever 1. See, e.g., Trials of Tolerance, TIMES (London), Feb. 11, 2004, at 19 (discussing France's controversial policy of banning the Muslim headscarf in public schools); see also Sorry Tales of the Cross and the Veil: We Should Assert Universal Values, Not Spread Moral Panic, FIN. TIMES, Dec. 23, 2006, at 8 (describing the varied and misguided strategies addressing immigrant integration that have contributed to growing tensions in Europe). 2. See Heinrich Klebes, Membership in International Organizations and National ConstitutionalLaw: A Case Study of the Law and Practice of the Council of Europe, 99 ST. LOUIS-WARSAW TRANSATLANTIC L.J. 69, 71 (1999) (crediting the eventual development of a community of values based on democracy, rule of law, and human rights to Churchill's efforts). 3. See Jonathan L. Black-Branch, Observing and Enforcing Human Rights Under the Council of Europe: The Creation of a Permanent European Court of Human Rights, 3 BUFF. J. INT'L L. 1, 7 (1996) (acknowledging that scholars and lawyers have widely recognized the Council of Europe's Convention on Human Rights as the "world's most successful system of international protection of human rights and one of the most advanced forms of international legal process" (quoting MARK W. JANIS & RICHARD S. KAY, EUROPEAN HUMAN RIGHTS LAW 23 (1990))). 620 AM. U. INT'L L. REV. [23:617 more diverse, the Council of Europe stands to play an increasingly important role in protecting the rights of Europe's population.4 The European Convention on Human Rights and Fundamental Freedoms ("Human Rights Convention")5 emerged shortly after the Council's inception. 6 It laid out the fundamental rights of individuals, including the right to religion, and established the European Court of Human Rights ("ECHR" or the "Court").7 Despite the Human Rights Convention's great advances in human rights protections, it has been less successful in protecting the rights of religious minorities.8 To compensate for this weakness and to handle issues arising from Europe's burgeoning minority population, the Council of Europe drafted the Framework Convention for the Protection of National Minorities ("FCPNM" or "Framework Convention").' The Framework Convention outlines in detail the rights of national minorities, including religious minorities, and the duties of States to 4. See Grdinne de Bdrca, On Enlargement of the European Union: Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union, 27 FORDHAM INT'L L.J. 679, 684-86 (2004) (finding that while the European Communities focused primarily on economic integration, the Council of Europe assumed the bulk of the responsibility for EU human rights policy); see also Elizabeth Shaver Duquette, Human Rights in the European Union: Internal Versus External Objectives, 34 CORNELL INT'L L.J. 363, 372 (2001) (asserting that notwithstanding the European Community's ("EC") inability to accede to the European Convention on Human Rights and Fundamental Freedoms, the EC should "vigorously protect and promote human rights and democracy throughout its territory"). 5. Convention on Human Rights and Fundamental Freedoms, Sept. 3, 1953, Europ. T.S. No. 5, 213 U.N.T.S. 222 [hereinafter European Convention on Human Rights]. 6. See Christin J. Albertie, The Act on Hungarians Living Abroad: A Misguided Approach to Minority Protection, 24 MICH. J. INT'L L. 961, 972-73 (2003). 7. See Black-Branch, supra note 3, at 8 (recognizing the