Protecting the Human Rights of Religious Minorities in Eastern Europe

Protecting the Human Rights of Religious Minorities in Eastern Europe

Protecting the Human Rights of Religious Minorities in Eastern Europe

Peter G. Danchin and Elizabeth A. Cole, Editors

columbia university press new york

Columbia University Press Publishers Since 1893 New York, Chichester, West Sussex Copyright 䉷 2002 Columbia University Press All rights Reserved Library of Congress Cataloging-in-Publication Data Protecting the human rights of religious minorities in Eastern Europe / Peter G. Danchin and Elizabeth A. Cole, editors. p. cm. Includes bibliographical references and index. ISBN 0–231-12474-0 (alk. paper) — ISBN 0–231-12475-9 (pbk. : alk. paper) 1. Religious minorities — Europe, Eastern. 2. Freedom of religion—Europe, Eastern. 3. Religion and state—Europe, Eastern. 4. Europe, Eastern—Religion. I. Danchin, Peter G. II. Cole, Elizabeth A. BL980.E852 P76 2002 323.44⬘2⬘0947—dc21 2002019242 A Columbia University Press books are printed on permanent and durable acid-free paper Printed in the United States of America Publication of this volume was supported in part by a grant from the Pew Charitable Trusts References to Internet web sites (URLs) were accurate at the time of writing. Neither the editors, the individual contributors, nor Columbia University press is responsible for URLs that may have expired or changed since the articles were prepared. c 10 9 8 7 6 5 4 3 2 1 p 10 9 8 7 6 5 4 3 2 1

c ont e nt s

Preface ix Dr. J. Paul Martin, Center for the Study of Human Rights, Columbia University

Acknowledgments xi List of Contributors xiii

Introduction 1 Religion, Religious Minorities and Human Rights: An Introduction Peter G. Danchin, School of International and Public Affairs, Columbia University

pa r t one Theoretical Perspectives 31 1. Religious Minorities and Religious Freedom: An Overview 33 David Little, Harvard Divinity School

2. The Protection of Minority Religions in Eastern Europe 58 Eileen Barker, London School of Economics

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3. Equality and Religious Preferences: Theoretical, International and Religious Perspectives 87 Tad Stahnke, United States Commission on International Religious Freedom

pa r t two International Legal Perspectives 129 4. External Monitoring and the International Protection of Freedom of Religion or Belief 131 Peter G. Danchin, School of International and Public Affairs, Columbia University

5. The Evolving Jurisprudence of the European Court of Human Rights and the Protection of Religious Minorities 192 Peter G. Danchin, School of International and Public Affairs, Columbia University Lisa Forman, Graduate School of Arts and Sciences, Columbia University

6. The Organization for Security and Co-operation in Europe and the Rights of Religion or Belief 222 T. Jeremy Gunn, Emory Law School

7. Self-Determination and the Right to Secession of Religious Minorities under International Law 251 Johan van der Vyver, Emory Law School

pa r t three Case Studies 295 A. Eastern and Central Europe 8. State Politics and Religious Pluralism in Russia and Ukraine: A Comparative Perspective 297 Serhii Plokhy, University of Alberta

9. Law and Politics toward the Muslims in Bulgaria 316 Krassimir Kanev, Bulgarian Helsinki Committee.

10. Protection of Minority Religions in Hungary: A Comparative Analysis 345 Bala´ zs Schanda, Hungarian Ministry of Cultural Heritage

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pa r t th ree Case Studies 363 B. Western Europe—Comparative Perspectives 11. European Parliamentary Enquete Commissions: Justification of a Two-Tiered System of Religious Freedoms 365 Carolyn Wah, Watchtower

12. The Contemporary Form of the Relationship between Religious Minorities and the State in Spain 389 Rosa Marı´ a Martı´ nez de Codes, Ministry of Justice, Spain

13. The Protection of Religious Minorities in Belgium: A Western European Perspective 408 Willy Fautre´ , Human Rights Without Frontiers

pa r t four Non-Legal Approaches 435 14. The Development of Polish Civil Society and the Experience of the Greek Catholic Minority in Eastern Europe 437 Christopher Hann, Max Planck Institute for Social Anthropology

15. The Catholic Church in Post-Communist Europe 455 Timothy Byrnes, Colgate University

16. American Church Advocacy of Religious Rights in East Germany: The Legacy of the Past for the Present 477 Robert Goeckel, SUNY Geneseo

17. Catholic-Jewish Dialogue in Poland: A Difficult Road to Tolerance 490 Stanisław Krajewski, Warsaw University and Consultant to the American Jewish Committee

afterword 509 18. Religion and Human Rights: The Capacity to “Swear to One’s Own Hurt” 511 Donald W. Shriver, Union Theological Seminary

Index 521

p r e f a ce

Dr. J. Paul Martin

The Center for the Study of Human Rights is delighted to publish this important collection of articles that focus on the problems of religious minorities in a Europe that is searching for new patterns of unity in the aftermath of the Iron Curtain. At issue are the roles of states and religions in the search for national identities and the relevance of common, transnational human rights standards. This process plays out within the larger framework of the forces of globalization, notably new patterns of commerce and finance, the explosion of electronic communications, the penetration of religious missionaries and international advocates for democracy from the West, the expansion of NATO and the activities of the Organization for Security and Cooperation in Europe. Despite the inroads of secularism, religion, or at least religious heritage, remains a continuing factor in social identity in European communities. Religion as a source of group affiliation is re-asserting itself in Europe in many forms. We need only think of the role religion has played in defining the sides in the conflicts within the former Yugoslavia or the issues raised by the new laws on religions passed recently by the Russian and Austrian parliaments. New religions are expanding. Eastern Europe has become a major target for missionary groups from outside the region, angering the pre-existing churches seeking to re-establish themselves after years of suppression under communism. The human rights perspective focuses especially on innocent victims and

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on those who are excluded from political power and are unable to influence the decisions that affect their lives. Religious freedom tends to be one of the most basic bellwethers of democracy. While by no means conforming to the modern idea of freedom of religion and belief, working out a modus vivendi among the dominant Christian groups, for example, helped bring a degree of political stability to England after the Tudors. While current problems of religious freedom in contemporary Eastern Europe do not compare with those of post-Reformation Europe, religious-based activism directed toward other, especially new, traditions is an issue of concern to many governments in Eastern Europe. Moreover, increasingly, the policies and practices adopted in one state influence those of others. It is thus important to analyze the different experiences and their consequences that form the subject matter of this book. The purpose of this volume is to bring together and examine, within the context of international and especially European law and practice, some of the problems religious minorities face in Europe today. We have also sought to identify some of the major non-governmental transnational actors, notably the role of the Catholic Church. The aim is not to offer solutions, but rather to highlight the problem and the context within which solutions need to be developed. The approach reaffirms the principles of freedom of religion and belief enunciated in the Universal Declaration of Human Rights (Article 18), the International Covenant on Civil and Political Rights (Article 18), the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 9). Implicit in the analysis is the relevance of the closely related rights to freedom of speech, conscience and assembly as well as equal protection of the law and freedom from discrimination. We plan further studies in other regions of the world which will examine how other religions and cultures are responding legally and politically to religious diversity among their citizens.

acknowledgments

The essays in this book grew out of a research and training project initiated in mid-1994 by the Center for the Study of Human Rights at Columbia University to study the role that religions play in the search for international peace and security through the promotion and protection of human rights. The Religion, Human Rights and Religious Freedom project was funded by The Pew Charitable Trusts and included an education and training program at the university for forty young scholars and activists from the human rights and religious communities in Central and Eastern Europe and the former Soviet Union. The project also included two seminars in New York and three international conferences in Budapest, Krako´w and Sofia respectively, several papers from which are included in this volume. These seminars and conferences were as follows: “Religious Freedom and Human Rights: State and Church in Eastern Europe” (New York, 1996) “Religious Organizations and the Human Rights Movement: Affinities and Divergences” (Budapest, 1997) “The Protection of Religious Minorities in Post-Communist Europe” (Krako´w, 1998)

xii a ck now le dgme nts

“Freedom of Religion and Belief: The Agenda for the UN” (New York, 1998) “Islam and Human Rights in Post-Communist Europe” (Sofia, 1999) Many people, including the Visiting Fellows from Central and Eastern Europe who took part in the training program and a number of colleagues at Columbia University, gave us insights and advice as we worked on this collection. However, several stand out for the degree of support and assistance they offered in the course of the project. Tad Stahnke began the pioneering work of developing the seminar on human rights, religion and religious freedom, which formed the intellectual core of the project. David Little, of Harvard Divinity School, offered invaluable expertise on the intertwining of religion, ethnic identity, conflict and human rights. Michael Young supported the project from its beginning, when he was at Columbia Law School, and although he moved to George Washington University Law School, where he is now the Dean, part way through the project, his dedication to religious freedom has been a constant inspiration. Donald Shriver, Union Theological Seminary President and Professor Emeritus, was involved in the project in too many ways to list here; we owe him a special debt of gratitude for his insistence that we consider the limits of the law in the protection of human rights and the contribution that religious traditions and faith can make to their promotion. We were very fortunate to have the research and editorial assistance of two gifted graduate students of human rights at Columbia’s School of International and Public Affairs, Meredith Shirey and Lisa Forman. Their dedication, resourcefulness and organizational skills made the completion of this volume possible. Finally, we would like to extend special thanks to Dr. J. Paul Martin, the Executive Director of the Center for the Study of Human Rights, and the spirit behind the Religion, Human Rights and Religious Freedom Project and this volume. Paul Martin’s devotion to advancing human rights education is wellknown, but this project represents an interest which is particularly close to his heart. His energy in conceiving and guiding a major project to study religion and human rights and bring together experts in both areas who had not worked together previously proved infectious. We are both very grateful for his leadership and friendship over the five-year period that the research and training project and this book were underway.

c ont r i b u t o r s

Eileen Barker (London, UK) is Professor of Sociology with special reference to the Study of Religion at The London School of Economics and Political Science. Her main research interest has been new religious movements; she is currently investigating changes in religion in Eastern Europe and the former Soviet Union. Her books and articles, which have been translated into seventeen languages, include The Making of a Moonie: Brainwashing or Choice and New Religious Movements: A Practical Introduction. Professor Barker has lectured extensively and is well-known in Britain and elsewhere for radio and television appearances. Timothy A. Byrnes (Hamilton, New York) is an Associate Professor of Political Science at Colgate University in Hamilton, New York. He has authored and edited many books regarding the Catholic Church and politics, including Catholic Bishops in American Politics (Princeton, 1991). A Fulbright Scholar in Poland in 1993, Dr. Byrnes has written on the role of the Catholic Church in the post-communist politics of East Central Europe. His articles have appeared in a number of journals including East European Quarterly and Religion, State and Society. Elizabeth A. Cole (New York, New York) is Senior Program Officer at the Carnegie Council on Ethics and International Affairs, where she directs the

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project on History and the Politics of Reconciliation. From 1995 to 1999 she coordinated the Religion, Human Rights and Religious Freedom Program at the Center for the Study of Human Rights at Columbia University. Peter G. Danchin (New York, New York) is a Lecturer and Director of the Human Rights Program at the School of International and Public Affairs, Columbia University. Formerly, he was an instructor in the Religion, Human Rights, and Religious Freedom Program at the Center for the Study of Human Rights, Columbia University. He was a law clerk to Justice Arthur Chaskalson, President of the Constitutional Court of South Africa, and Editor-in-Chief of the Melbourne University Law Review. He has a BA/LL.B. (Hons) degree from the University of Melbourne and an LL.M. degree from Columbia Law School where he is also a J.S.D. Candidate. His areas of interest are international, constitutional, and comparative human rights law and jurisprudence. Willy Fautre´ (Brussels, Belgium) is a religious journalist as well as founder and president of Human Rights Without Frontiers. He also managed a PHARE democracy program to promote religious liberty in Albania, Bulgaria and Romania. He is author of the book Nos Prisonniers du Goulag and has written numerous articles on human rights and religious liberty issues. Mr. Fautre´ has also participated in fact-finding missions in Albania, Azerbaijan, Bulgaria, Greece, Latvia, Nicaragua, Panama and Russia. Lisa Forman (New York, New York) is a South African human rights lawyer. She has worked in HIV/AIDS law in South Africa with the AIDS Law Project at the Centre for Applied Legal Studies, and with the Commission on Gender Equality on the gender implications of making HIV/AIDS a notifiable disease. She has a BA and LLB from the University of the Witwatersrand and an MA from Columbia University in Human Rights Studies. She will be completing further graduate legal studies in 2001–2 at the University of Toronto, Canada. Her academic and professional interests are in the human rights implications of international and constitutional law. Robert F. Goeckel (Geneseo, New York) is a Professor of Political Science at the State University of New York, Geneseo. Having received a Ph.D. in Government from Harvard University, his research interests concern church-state relations in the former German Democratic Republic and contemporary Germany as well as Soviet policies toward religion, particularly in the Baltics. His recent publications include “Church-State Relations in the Post-Communist Era: The Case of East Germany” in Problems of Post Communism (January– February 1997) and “The Baltic Churches and the Liberalization Process” in The Politics of Religion in Russia and the New States of Eurasia, edited by Michael Bourdeaux.

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T. Jeremy Gunn (Atlanta, Georgia), is the Senior Fellow on Religion and Human Rights at Emory Law School. He is a member of the OSCE/ODIHR Panel of Experts on Religion and has been a participant at OSCE meetings as a member of the U.S. Delegation. He formerly was the Director of Research of the United States Commission on International Religious Freedom and, as a Senior Fellow at the U.S. Institute of Peace, he worked in conjunction with the U.S. Department of State’s Office of International Religious Freedom. He received his Ph.D. from Harvard University and his J.D., magna cum laude, from Boston University. Christopher Hann (Halle, Germany) is Director of the Max Planck Institute for Social Anthropology, Halle. Previously he taught anthropology at Cambridge and Canterbury, England. He received a BA in Politics, Philosophy and Economics from Oxford University and a Ph.D. in Social Anthropology from Cambridge University. Dr. Hann has done field work in Hungary, Poland, Turkey and Xinjiang, China, and has published extensively in his field. Krassimir Kanev (Sofia, Bulgaria) is founder and chair of the Bulgarian Helsinki Committee and an Associate Professor of Sociology at the University of Sofia. Author of large parts of a controversial annual report on the State of Religious Freedom in Bulgaria, Dr. Kanev is also co-editor of Face to Face, a monthly magazine devoted to the state of religious freedom in Bulgaria, Albania and Romania. Stanisław Krajewski (Warsaw, Poland) is on the faculty of the Department of Philosophy at Warsaw University. He is the co-chairman of the Polish Council of Christians and Jews and from 1992 to 1998 was a member of the executive committee of the International Council of Christians and Jews. Since 1997 Dr. Krajewski has been a member of the board of the Union of Jewish Religious Communities in Poland. He is also the chairman of the Jewish Forum in Poland, a member of the International Council of the Auschwitz Camp Museum and Memorial, and the Polish consultant to the American Jewish Committee. He was a member of “Solidarity” from 1980 to 1990 and after 1989 was among the founders of the Polish Council of Christians and Jews and of the PolishIsraeli Friendship Society. Mr. Krajewski is author of the book Jews, Judaism, Poland and has written articles in Polish and English on logic, Judaism, Jewish history and Christian-Jewish dialogue. David Little (Boston, MA) is the T. J. Dermot Dunphy Professor of the Practice in Religion, Ethnicity, and International Conflict at Harvard Divinty School, and Faculty Associate at the Weatherhead Center for International Affairs, Harvard University. He holds the degrees of B.D. from Union Theological Seminary and Th.D. from Harvard Divinity School. As a senior scholar at the United

xvi co ntributors

States Institute of Peace, he has been engaged in a multi-year study of religion, nationalism, and intolerance. He has taught at Yale, Brown, Amherst, Haverford, and served for nearly twenty years as Professor of Religious Studies at the University of Virginia. He is an expert in the law and sociology of religion, comparative religious ethics, and religious liberty, with a special concentration on international religious freedom, and human rights and ethno-religious conflict. He has written nearly 100 professional articles and book chapters, and ten books, including Religion, Order and Law: A Study in Pre-Revolutionary England, Ukraine: A Legacy of Intolerance, Sri Lanka: The Intervention of Enmity, and Human Rights and the Conflict of Culture: Freedom of Religion in the West and Islam. Paul Martin is the Executive Director of the Columbia University Center for the Study of Human Rights, which he founded together with Louis Henkin in 1978. His primary research interests have been human rights education, especially in Africa, as well as religion and human rights. He is the co-editor, with Irene Bloom and Wayne L. Proudfoot, of Religious Diversity and Human Rights (Columbia University Press, 1996). Rosa Marı´a Martı´nez de Codes (Madrid, Spain) is Vice-Director of Religious Affairs at the Ministry of Justice in Madrid. A scholar of Latin American history, she has acted as a Visiting Professor in universities in Argentina, Chile, Italy and the United States. Ms. Martinez de Codes is a member of Instituto Internacional de Historia del Derecho Indiano and Sociedad Argentina de Historadores. Her research interests include the role of the Catholic Church in Latin America, especially in regard to human rights and political issues. Serhii Plokhy (Edmonton, Canada) is Director of the Ukrainian Church Studies Program at the Canadian Institute of Ukrainian Studies at the University of Alberta. He is also the associate director at the Peter Jacyk Centre for Ukrainian Historical Research at the same institute. With research interests in the fields of Ukrainian and Russian history as well as church-state relations, Dr. Plokhy has written and published extensively in English, Russian, and Ukrainian. Balaz´s Schanda (Budapest, Hungary) is head of department (or deputy director), Ministry of Cultural Heritage, Secretariat for Church Relations. Formerly he was an assistant to the Vice-President of the Constitutional Court of Hungary. A lawyer by training, Mr. Schanda teaches courses on religion and constitutional law at the Eo¨tvo¨s Lo¨rand University in Budapest and on public ecclesiastical law at the Law Faculty of the Catholic University Pe´ter Pa´zma´ny. Mr. Schanda has written and published extensively on the relationship between church and state and freedom of religion in Europe. Donald W. Shriver Jr. (New York, New York) President Emeritus and William

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E. Dodge Professor of Applied Christianity at Union Theological Seminary (1975–96), is an ordained Presbyterian minister, a member of the Council on Foreign Relations, and past president of the Society of Christian Ethics. He has held adjunct professorships at the Jewish Theological Seminary and the Schools of Business, Law, and Journalism at Columbia University. His most recent books include An Ethic for Enemies: Forgiveness in Politics and Beyond Success: Corporations and Their Critics. Tad Stahnke (New York, New York) is the Director of Research at the United States Commission on International Religious Freedom. Formerly, he was a Research Scholar and Lecturer at Columbia Law School in the Religion, Human Rights, and Religious Freedom Program, in which he developed and taught a seminar on Religion and Human Rights. His current research interests include religion and discrimination on the basis of race, sex, and gender; political participation by religious organizations and human rights struggles within religious institutions. Johan van der Vyver (Atlanta, Georgia) is the I.T. Cohen Professor of International Law and Human Rights at Emory Law School and formerly Professor of Law at the University of the Witwatersrand in Johannesburg, as well as Professor of Law and Dean of the Faculty of Law of Pochefstroom University in South Africa. He is a widely known authority on international human rights and comparative constitutionalism, and was one of the leading scholarly proponents for constitutional and human rights reform in his native South Africa. He is author of more than 200 articles and eight books, including Seven Lectures on Human Rights, Reformed Christians and Social Justice, The Juridical Function of Church and State, and The Republic of South Africa Constitution Act. Carolyn Wah (Patterson, New York) is Assistant General Counsel for the Watchtower Bible and Tract Society of New York, Inc. Ms. Wah is an attorney and was admitted to law practice in New York in 1985. She has published numerous papers and given presentations on issues of religious practice, minority religions, mental health and family law.

Protecting the Human Rights of Religious Minorities in Eastern Europe

r e l i gi on, r e l i gi ou s m i n o r i t i e s a n d h u m a n r i gh t s: a n i n t r o d u c t i o n Peter G. Danchin

The collapse of communism following the events of 1989 set in motion an economic, political, and social transformation throughout Central and Eastern Europe as the newly independent states began the precarious transition from totalitarian to democratic rule. In doing so, reformers looked to the values of liberalism, free market economics, and human rights to supplant the old, imposed, collectivist ideology which had been so hostile to liberal commitments.1 At the time Francis Fukuyama went so far as to declare the end of history itself, proclaiming that: As mankind approaches the end of the millenium, the twin crises of authoritarianism and socialist central planning have left only one competitor standing in the ring as an ideology of potentially universal validity: liberal democracy, the doctrine of individual freedom and popular sovereignty. Two hundred years after they Þrst animated the French and American revolutions, the principles of liberty and equality have proven not just durable but resurgent.2 During this period of profound and rapid change, however, it was soon realized that the ousting of unpopular communist regimes, while a necessary condition for transformation, would not be sufÞcient per se to guarantee sustainable eco-

2 p e te r g. da nchin

nomic reform and the effective protection of human rights. One of the reasons asserted at the time for the need to entrench human rights protections in the new Eastern European constitutions was the fragility of the democracy-building process in post-Communist countries.3 As Vernon Bognador has observed, in virtually every one of the new democracies, there are large national and religious minorities: Even Poland, normally thought of as a homogenous state, contains around 250,000 Germans, while roughly the same number of Poles live in Lithuania. In every state bordering Hungary, except for Austria, there is a large Hungarian minority, amounting to two million in Rumanian Transylvania. Indeed, almost 30 percent of the Hungarian speaking population of central Europe live outside Hungary. Similarly, 1.8 million Albanians live in Kosovo, a region of Yugoslavia, while Bulgaria contains around one million Turkish speaking Muslims, amounting to 10 per cent of the population. The Baltic states contain large Russian minorities, and indeed there are 25 million Russians living outside Russia, while Bulgaria, the Czech Republic, Hungary, Rumania and Slovakia contain large gypsy populations, and Hungary has a substantial Jewish minority. The internal divisions within the states formed from the former Yugoslavia are too painfully obvious to need recital.4 These ethnic and religious divisions created a range of dangers for democratic stability. The historical reality is that discrimination against minority religious and ethnic groups is often part of a broader monolithic nationalism. In the formation of national identity, preferences to a majority religion are an integral component of the nation-building process. In the ideological vacuum that existed at the end of socialism, the alignment of nationality with the dominant religion clearly played a Òmobilizing roleÓ in aiding the new leaderships in Eastern Europe to build their ßedgling democracies under severe economic conditions.5 The danger, however, was that in societies with renewed polycentricity, religious intolerance, especially when reinforced with cultural and ethnic diversity, would quickly generate severe tensions at every level of society and spur the reemergence of ancient cultural divides with devastating effects.6 As Òcultural fault linesÓ and Òdifferences as the product of centuriesÓ fermented the seeds of conßict across the Eastern bloc,7 Samuel HuntingtonÕs well-known thesis appeared to many to be frighteningly prescient.8 Huntington has argued that some of the deepest rifts driving these conßicts derive from long-held religious traditions and beliefs, and from the divisions between western Christian civilization and eastern Islam and Orthodoxy.9 While the end of the Cold War removed ofÞcial atheism as a world force and Òliber-

Introduction 3

atedÓ religions and churches in formerly repressive countries, these changes have not proved to be necessarily conducive to the protection of human rights. Established churches across Eastern Europe have expressed little concern for human rights, at home or in neighboring states, and state-based violations of the rights of religious minorities, as attested to by many of the essays in this collection, have been widespread. This seeming paradox is explained by Cole DurhamÕs thesis that both strong positive identiÞcation of church and state (for example, in absolute theocracies or in states with established or endorsed churches) and strong negative identiÞcation of church and state (for example, in states that are hostile to or persecute religious groups) correlate with low levels of religious freedom. This is because, in both situations, Òthe state adopts a sharply deÞned attitude toward one or more religions, leaving little room for dissenting views.Ó10 Accordingly, as the nation-building process has lurched hesitantly forward, and ofÞcial atheism has been replaced by varying models of church-state arrangements, there has been uncertainty regarding the extent to which core liberal democratic principles of constitutionalism, human rights, and the rule of law will prevail against resurgent nationalism and intolerance directed toward religious minorities. Each of the essays in this collection addresses speciÞc aspects of this question: How are the rights of religious minorities to be protected in the particular conditions of post-communist Central and Eastern Europe? This inquiry necessarily requires consideration of church-state arrangements throughout the region and the relationship between religionÑor speciÞc religionsÑand the idea of human rights, both in terms of political morality, and in terms of constitutional and international legal institutions and regimes. The essays are divided into four parts. Part IÑTheoretical PerspectivesÑdeÞnes the scope and complexity of the barriers faced by religious minorities in post-communist societies and seeks to analyze those Þndings in the context of human rights ideas, norms, and principles. Part IIÑInternational Legal PerspectivesÑcritically assesses the array of international human rights mechanisms and instruments that may be employed to protect the rights of religious minorities. Part IIIÑCase StudiesÑ gathers together a number of portraits of how these complex factors have evolved in differing historical, social, political, and cultural settings in the region. Also included in this part are three additional case studies drawn from Western Europe that provide illuminating points of comparison. Finally, Part IVÑNonLegal ApproachesÑconsiders the position of religious minorities from a variety of extra-legal perspectives. Before turning to these issues, however, it may be useful to make some preliminary comments on the relationship between ÒreligionÓ and Òhuman rights,Ó and between these two concepts and the question of Òreligious minorities.Ó

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I. RELIGION AND HUMAN RIGHTS The relationship between law and religion, and between church and state, has been an area of study that has fascinated scholars for centuries. Law and religion have traditionally been seen as Òtwo distinct, but interrelated spheres of ideas and institutions, two overlapping methods and forms of studyÑlegal science and religious science, jurisprudence and theology.Ó11 The relationship has been regarded as one of Òdialectical interaction/harmony,Ó two spheres of thought crossing over and cross-fertilizing each other and thus creating two great interlocking systems of value and belief that are related conceptually, methodologically, institutionally, and professionally. Since the end of the Second World War, the nature of international relations has been fundamentally changed by the dramatic rise in prominence of the idea of human rights. Our age is said to be one of Òrights;Ó indeed, human rights are now heralded as Òthe idea of our time, the only political-moral idea that has received universal acceptance.Ó12 Perhaps as an indirect result of the extensive geopolitical changes occurring across Eastern Europe and, following HuntingtonÕs thesis, the role that religion is playing in the extensive and systematic violation of human rightsÑparticularly of minority groupsÑthe relationship between religion and human rights has assumed increased prominence over the last decade in political, legal, and scholarly circles.13 In considering this relationship, and the challenges posed for religious traditions by the international human rights movement, it is perhaps Þrst necessary to identify the main features of the cluster of ideas, norms, and traditions encompassed within the terms ÒreligionÓ and Òhuman rights.Ó Attempts to deÞne the term ÒreligionÓ are notoriously difÞcult. For present purposes, I intend to rely on the deÞnition proposed by the 1993 Project on Religion and Human Rights which deÞned ÒreligionÓ as broadly encompassing a world view or set of beliefs, along with a value system and a way of life embodying and expressing these beliefs.14 Religion derives its values and practices from some authority, often beyond or underlying ordinary reality. Religious traditions provide their adherents with a comprehensive understanding of the world and identify the place and role of human beings and other sentient beings within that world. They attempt to provide answers to the most basic questions of existence: the origin and meaning of existence; the nature of life and death; the meaning of suffering and the ways to overcome it; the nature of evil and ways to overcome it; the ultimate destiny of human life and of all life. Religions call on their adherents to live according to their values through a prescribed set of practices and relationships that may affect many aspects of personal and social life. They are not merely a matter of belief or doctrine, but actually constitute an integral culture which can form personal and social identity and can inßuence experience and behavior signiÞcantly.15

Introduction 5

Religion has been historically one of the most powerful forces in shaping the mores of humanity. In many parts of the world today, religious revivalism is playing an increasingly determinant role in society and politics. This phenomenon has the capacity to challenge the basis of pluralism and secular society within the framework of many modern nation states. Thus, fundamentalism and secularism have been said to pose the two challenges that people of all religions and beliefs face.16 The Òrights idea,Ó by contrast, is of comparatively recent origin, although it too has a history tracing back a number of centuries. Religious freedom itself is arguably the oldest and the deepest of the rights embedded in the modern constellations of liberty.17 In recent times, human rights have come to be considered as an integral part of modern democratic constitutionalism and, at least since the 1989 revolutions, issues of constitutionalism and human rights in postCommunist Central and Eastern Europe have attracted a wealth of scholarly attention.18 Constitutional and international human rights theorists alike have devoted great attention to the old issue of how religion, human rights, and religious freedom can best be actualized in any given society. While the core of the concept of Òreligious freedomÓ has achieved remarkable consensus in international and constitutional instruments, signiÞcant variations persist in the ways in which regimes structure the relations between religious and political institutions.19 In all constitutional systems, questions continue to arise about the precise limits of religious freedom and about the relationship, or degree of separation, between church and state. The difÞcult task of identifying which religious practices and issues are most pertinent to human rights norms has been greatly advanced by the pioneering work of Arcot Krishnaswami. As the Þrst United Nations Special Rapporteur on the issue, KrishnaswamiÕs 1960 Study of Discrimination in the Matter of Religious Rights and Practices20 is the Þrst comprehensive study on human rights related to religion and belief and provides a useful analytical framework for scholars in the Þeld. The 1960 Study provides a historical analysis of the development of the ideas of tolerance and religious freedom in both theological thought and in national laws and constitutions, and attempts to identify the root causes and incidences of intolerance and discrimination based on religion or belief.21 Today, it is widely accepted that international human rights norms and standards provide the most appropriate means by which to analyze these conßicting concepts. The reason for this approach is evidenced by the Krishnaswami Study itself: international recognition of the concept of religious freedom is today seen as one of the major ways of addressing discrimination and intolerance in all states. Even before the concept was recognized in national laws, the practice gradually evolved of making treaty stipulations ensuring rights to individuals or groups professing a religion or belief that differed from that of the majority of the country.22

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The starting point for consideration of Òinternational human rightsÓ norms and standards in the modern era is the Charter of the United Nations, drafted in 1945 following the end of the Second World War. ÒHuman rights,Ó as commonly understood today, are those sets of rights articulated in the thirty articles of the Universal Declaration of Human Rights (the UDHR) adopted by the General Assembly in 1948. Subsequently, these rights were more fully articulated in two international human rights covenants which the United Nations adopted in 1966 and which gave legal form to the Universal DeclarationÑthe International Covenant on Civil and Political Rights (the ICCPR) and the International Covenant on Economic, Social and Cultural Rights (the ICESCR). Together, these three documents are collectively referred to as the ÒInternational Bill of Rights.Ó23 It is these rights that states parties are required to respect, ensure, or progressively implement in their domestic legal systems, and it is these rights that must be considered in relation to religion and belief.24 Beyond the ÒuniversalÓ human rights system, mention must also be made of Òregional human rightsÓ and, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms,25 which has immediate relevance to the newly independent states of Central and Eastern Europe. This Convention remains the most developed of the three regional systems and has generated a more extensive jurisprudence than any other mechanism of the international human rights system.

II . RELIGIOU S MINORITIES AND HUMAN RIGHTS How do these concepts of Òinternational human rightsÓ and Òreligious libertyÓ relate to the speciÞc issue of Òreligious minoritiesÓ? One of the strongest challenges to the current international human rights regime derives from an argument that human rights are a manifestation of the western liberal interest in the rights of the individual and that this emphasis neglects the needs and rights of minority groups, including religious minority groups. Communitarian critics of liberalism have attempted to advance theories by which the rights of minority groups can be reconciled with traditional liberal approaches to human rights.26 While much of this discourse has concerned the rights of ethnic and cultural minorities, the communitarian critique is equally pertinent in the context of religious minorities. Nathan Glazer and Michael Walzer have distinguished between two ÒmodelsÓ that can be used to accommodate ethno-cultural (and I would add, religious) diversity in a free and democratic society.27 The Þrst model is based on the Ònondiscrimination principle,Ó which draws upon the way that religious minorities are treated in liberal states. As Kymlicka explains: In the sixteenth century, European states were being torn apart by conßict between Catholics and Protestants over the question of which religion

Introduction 7

should rule the land. These conßicts were Þnally resolved, not by granting special rights to particular religious minorities, but by separating church and state, and entrenching eachÕs individual freedom of religion. Religious minorities are protected indirectly, by guaranteeing individual freedom of worship, so that people can freely associate with other coreligionists, without fear of state discrimination or disapproval.28 Under this model, members of religious groups are protected against discrimination and prejudice, and they are free to maintain their religion as they wish, consistent with the rights of others. Religion is, however, ÒprivatizedÓ and while the state does not oppose the freedom of people to express their particular culture or religion, neither does it nurture such expression. Rather, in the words of Glazer, it responds with Òbenign neglect.Ó The United States is perhaps the clearest example of this approach (although the communitarians question the asserted ÒneutralityÓ of the U.S., arguing instead that it embodies a system of, in effect, Ògroup rightsÓ that supports the majorityÕs religion, language, history, and culture). The second model is based on a different principleÑthat of Ògroup rightsÓÑ and its central premise is the use of public measures to promote or protect the religious or cultural beliefs and identities of speciÞc minority groups. It is argued that this model constitutes a more robust form of nondiscrimination as it requires that state to provide the same sort of rights to minorities that are taken for granted by the majority. The choice between these two models goes to the heart of the purpose of the state itself. For Glazer, the choice is between forming a common national culture, or accepting the permanent existence of two or more national cultures within a single state. . . . [T]he United States has Þrmly adopted the former as its goal, and indeed it has had enormous success in integrating people of many different races and religions into its common culture. Yet in many parts of the world this sort of integration seems unthinkable, and minority groups are insistent on viewing the larger state as a Ôconfederation of groupsÕ.29 In rebuilding their political and civil societies following the collapse of communism, the new democracies across the Eastern bloc are now confronting the tensions inherent in these two models of protecting minority rights. In this regard, it is interesting to observe that Walzer distinguishes between ÒNew WorldÓ and ÒOld WorldÓ pluralism. For Walzer, the nondiscrimination model has succeeded in the U.S. because minorities there are, by and large, immigrant groups. New World pluralism is therefore the result of religious and cultural diversity arising from voluntary decisions of people to uproot themselves and

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join another society. This can be juxtaposed with Old World pluralism where minorities are territorially concentrated and settled in historic territories that may, at some point in time, have been incorporated within the boundaries of a larger state. This incorporation is usually involuntary, resulting from conquest, or colonization, or the ceding of territory from one imperial power to another. Under these circumstances, minorities are rarely satisÞed with non-discrimination and eventual integration. What they desire . . . is Ônational liberationÕÑthat is, some form of collective self-government, in order to ensure the continued development of their distinct culture.30 This dimension of the history of ethnic and religious minorities in Eastern Europe creates some important differences with the position of minority groups in many western liberal democracies. In particular, competing views on historic injustices often animate the ways in which majority and minority groups regard each other. Whereas in most western democracies, historic injustice is usually a claim asserted by a minority against the state in an effort to secure greater substantive equality against the majority, in Eastern Europe the situation is more often one where historic injustice is invoked by the majority in an effort to delegitimize the relevant religious or ethnic minority. Here, the majority group claims to have been subject to unfair treatment under an earlier empire and further claims that these injustices occurred with the collaboration or acquiescence of the group that is now in the minority. For example, such claims of historic injustice are made by the Orthodox Bulgarians about their treatment by Muslim Turks in the nineteenth century, by Orthodox Serbs of oppression under the Ottomans, and by the Catholic Slovaks about their treatment under the Austro-Hungarian Empire. As Kymlicka has recently observed, it is this historical memory that often generates fear in the majority that minority groups will once again collaborate with their kin-states in an effort to retrieve minority territories or to secede.31 The prospect of a Greater Albania has been one of the predominant sources of tension between Orthodox Serbs and Muslim Albanians in Kosovo. As a result, minority questions are perceived as raising overwhelming security concerns as opposed to ordinary claims of freedom and equality. By securitizing issues concerning the rights of ethnic and religious minorities, the majority in power thereby seeks to trump ordinary debates on questions of justice. This sets the threshold extremely low on the rights that minorities are able to assert against the majority without activating the police power of the state for disloyalty or seditious intent. The response of the international community to this problem has been to encourage the new East and Central European democracies to guarantee basic

Introduction 9

minority rights, but not to the point of permitting Òdemocratic secession.Ó32 The suggestion has been that, despite the prevalence of Old World pluralism in many East European statesÑand corresponding tendencies toward separatismÑthe omnipresent forces of globalization, pervasive free trade, and global communications networks have made the myth of a culturally homogenous state even more unrealistic, and this requires the majority in these states to be more receptive to genuine religious pluralism and diversity.33 Correspondingly, in exercising their rights of self-determination under international law, ethnic and religious minorities do not have a right to secede from the state, a topic that is explored in chapter 7 of this collection by Johan van der Vyver. Instead, they must fully assert their minority rights to profess and practice their own religion, enjoy their own culture, and use their own language within existing state boundaries. In attempting to devise the optimum model for the protection of the rights of religious minorities, Central and East European states are thus confronting an issue that continues to divide political theorists. Once some form of group rights model is adopted, a distinction must be drawn between two situations. The Þrst case is where a minority group demands rights against the larger society to protect it from the economic or political decisions of the majority. Here, the concern is the relationship between groups and the claim is that justice between the majority and the various minorities requires certain group rights which reduce the vulnerability of the minorities to the decisions of the majority. The second case is where a minority religious group demands rights against its own members, most often to protect its own historic and established traditions and practices against individual dissent. Here, the concern is the relationship between the group and its members and the claim is that survival of the religious group itself requires certain group rights which limit the freedom of individual members to reject or rebel against traditional religious norms. Kymlicka calls the Þrst sort of claim Òexternal protectionsÓ and the second Òinternal restrictions.Ó34 In his view, external protections for minority groups need not conßict with the liberal theory of individual freedom that characterizes international human rights law, but a liberal theory of minority rights is highly skeptical about internal restrictions.35 These ideasÑincluding the tension between the values of ÒtoleranceÓ and ÒautonomyÓ in liberal theoryÑare discussed further below in the context of Article 27 of the ICCPR.

a. human rights and religious minorities — theoretical perspectives The three chapters in part 1ÑTheoretical PerspectivesÑeach build upon and amplify these themes concerning the relationship between religious minorities and human rights norms and regimes. The Þrst essay by David Little provides

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a general overview of the relationship between religious minorities and religious freedom and considers why religious minorities have become such an intractable problem in the aftermath of the Cold War. He proposes a deÞnition of Òreligious minoritiesÓ that distinguishes between Òbelief groupsÓ and Òethnoreligious groups,Ó the Þrst group being said to include so-called ÒsectsÓ or Òcults,Ó and the second group being said to correspond to some extent with WalzerÕs notion of ÒOld WorldÓ pluralism. Having deÞned Òreligious freedomÓ under international human rights law, Little proceeds to question why religious minorities have continued to face mistreatment under the ÒliberatedÓ conditions following the collapse of communist domination in Eastern Europe and the former Soviet Union. He notes the recent proliferation and general rise of minority faiths in these countries and seeks to identify the obstacles to religious freedom that these minorities are now encountering. He identiÞes issues that resonate in many of the ensuing chaptersÑprejudicial treatment at the hands of parliamentary inquiry commissions (an issue later discussed in detail by Carolyn Wah in chapter 11); administrative discrimination by enforcing unfair religious registration laws (a common feature of many of the countries discussed in part 3 and discussed by Tad Stahnke in chapter 3); restrictions on conscientious objection and proselytism by minority religious groups; seizure of property; forcible dispersal of religious gatherings; and even short term detention. The second essay by Eileen Barker traces in a sociological perspective the factors operating in post-communist Central and Eastern Europe that serve to construct along religious lines various versions of ÒusÓ and Òthem,Ó that exert pressure toward Òsomething to be doneÓ about those who fall into the ÒthemÓ category, and that determine the methods used to address the Òproblem.Ó Barker analyzes the effects of these factors on the rights of religious minoritiesÑparticularly foreign ÒcultsÓ and Ònew religious movementsÓÑand the fraught development of a social consensus on the existence of a multi-faith society. She observes that it is not in the least surprising that the national churches should be Þghting back. Having survived the communist attempt at anti-religious socialization of the population, the traditional churches now face a myriad of serious problems including demographic imbalances, limited expertise in developing a Òpractical theology,Ó and, in many instances, crippling poverty. In response, many churches now seek special constitutional protections and preferences for themselves while at the same time requesting strict control over ÒotherÓ religions, particularly those that are considered to be foreign and wellresourced. For example, the following comment was made by Patriarch Aleksii II in December of 1996: It is our obligation to battle for peopleÕs souls by all legal means available, rather than allowing them to perish. [We must] react to the continuing intense proselytising activity by some Catholic circles and various Prot-

Introduction 11

estant groups . . . [and] to the growing activity of sects, including those of a totalitarian nature . . . [for] it is largely our own brothers and sisters who fall victim to these sects.36 Agreeing with Little, Barker concludes that the traditional churches have also been utilizing nationalist sentiments to bolster their attempts to regain their former ascendancy. How does this approach square with the theoretical critique raised by the communitarians? In terms of the two models of ÒnondiscriminationÓ and Ògroup rights,Ó the national churches have been seeking what can perhaps best be described as a modiÞed form of groups rights structureÑone that allows the state positively to protect and support the dominant faith while at the same time providing only limited recognition and protection to minority faiths. The degree of limitation and restriction would then depend on various factors, including the identity and historical acceptance of the minority group in question. The 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Associations epitomizes this approach.37 In terms of KymlickaÕs dichotomy between external protections and internal restrictions, the claimed position of the national churches will be seen as problematic in both spheres. Virtually all religions support the argument that the right to freedom of religion itself justiÞes internal restrictions on the rights of its adherents, for example, restrictions on the ordination of women and gays and lesbians. This creates a tension between the stateÕs obligation to respect and ensure human rights norms of equality and nondiscrimination and the churchesÕ asserted right to internally restrict the rights of their members.38 On the question of external protections, any argument for a privileged position of one or more religious groups over others also arguably infringes the norms of equality and nondiscrimination that are foundational to the international human rights system. If a group rights model is to comply with Articles 2.1 and 26 of the ICCPR, there need to be compelling reasons advanced to show why the state should favor one religion or church over another. On this last point, it is necessary to note an important difference between United States and international human rights conceptions of freedom of religion. Neither Article 18 of the UDHR nor Article 18 of the ICCPR contains an anti-establishment requirement such as that contained in the First Amendment to the U.S. Constitution. Accordingly, a state whose constitution provides for an established or national church does not necessarily thereby infringe international human rights law.39 Nevertheless, those arrangements must still comply with the equality and nondiscrimination provisions (Articles 2 and 7 of the UDHR; Articles 2.1 and 26 of the ICCPR) enshrined in international human rights instruments. In the Þnal essay in part 1, Tad Stahnke addresses this very question of

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whether any constitutional arrangement that provides for differential treatment of religious organizations in the process of recognition by the state (for the purposes of securing the ability of the organization to function or granting special exemptions, beneÞts, or privileges) is able to be consistent with the principles of equality and nondiscrimination in international human rights law. Stahnke identiÞes a crucial distinction between state recognition for the purposes of granting the essential elements of religious freedom and state recognition for the purposes of state support or privileges. In the speciÞc context of post-communist European religious institutions, he thereby delineates both the discrimination problems resulting from, and the legitimate public purposes for, treating religious groups differently.

b. international human rights and religious minorities In considering the extent to which the international human rights system may protect the rights of religious minorities, the Þrst question to be asked is whether the primary contention of the communitarians is correct: does international human rights law, with its orientation toward the protection of the rights of the individual, neglect the rights of minority groups? International concern for the protection of minorities, and in particular the protection of religious minorities, can be traced back to well before the modern state system.40 During the sixteenth and seventeenth centuries, European peace treaties and treaties between European states and the Ottoman Empire included limited protections for religious minorities. Following the First World War, a series of minority treaties were signed by European powers that were monitored by the League of Nations.41 It is now a matter of history that the League and its minority treaties system failed to guarantee minority rights with devastating consequences. Emerging from the ashes of the Second World War, there was a general consensus among the main powers to replace the minority protection treaties with a human rights regime more directly centered on individual rights. It was thought that one reason for the failure of the League system was its emphasis on the differences between minorities, and the use of Òspecial protectionsÓ for different groups, which ultimately led to greater tension and opposition between groups. The prevailing sentiment in 1943 was well captured by Under Secretary of State, Sumner Welles when he stated that: in the kind of world for which we Þght, there must cease to exist any need for the use of that accursed term Òracial or religious minority.Ó . . . [I]s it conceivable that the peoples of the United Nations can consent to the

Introduction 13

reestablishment of any system where human beings will still be regarded as belonging to such ÒminoritiesÓ?42 Accordingly, neither the Charter of the United Nations nor the UDHR contains express provisions providing for minority protections. Article 27 of the ICCPR, however, provides as follows: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.43 Article 27 is arguably the most important global treaty standard dealing with the rights of minorities. According to the Human Rights Committee, one of the primary goals of this article is to protect the identity of minorities. States are required to take Òpositive measuresÓ to protect the rights of members of a minority group, inter alia, to practice their religion in community with the other members of the group (subject to such measures respecting Articles 2.1 and 26 of the ICCPR).44 A considerable corpus of human rights jurisprudence and scholarly comment has now been generated under this provision.45 For present purposes, it is sufÞcient to make two observations on Article 27 as it relates to the protection of religious minorities. First, Article 27 does not protect Ògroup rightsÓ as such; rather, it speaks of rights for Òpersons belonging to . . . minorities.Ó Ermacora has described Article 27 as a right of individuals premised on the existence of a community, or as an individual right collectively exercisedÑa Ògroup protection provision.Ó46 In this respect, the article reßects the general concern of the ICCPR for individual rights while simultaneously recognizing the importance of community to the realization of individual human rights. Second, as alluded to in the previous section, Article 27 treads a narrow line between the foundational liberal values of ÒtoleranceÓ and Òautonomy.Ó On the one hand, the article may provide some justiÞcation for restrictions imposed by groups on their own members on the grounds of religious beliefs or practices, including toleration of ÒnonliberalÓ groups (presumably provided there is an adequate right to exit). On the other hand, the article may alternatively be premised on the basic liberal value of Òautonomy,Ó which requires the state to ensure that all persons have Òthe liberties and resources needed to make informed decisions about the good life, including the right to question and revise traditional . . . practices.Ó47 Kymlicka argues in favor of ÒtoleranceÓ as the best basis for liberal theory on the grounds that it avoids alienating groups within

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liberal states that do not value personal autonomy and that restrict the ability of their members to dissent from traditional practices. While this approach may provide a wider basis for the legitimacy of government, it necessarily abandons individual freedom of choice and consigns individuals within minority groups to traditional roles.48 To the extent that Article 27 is capable of being interpreted on the basis of the underlying value of Òtolerance,Ó therefore, the communitarian critique of the shortcomings of human rights law may be accommodated. Indeed, even to the extent that autonomy is the foundational value of Article 27, there remains a strong argument that human rights law does in fact protect the rights of religious minorities, including the requirement of positive state measures to do soÑbut subject to the limitations of equality norms in the area of external protections and full realization of civil and political rights in the area of internal restrictions. A similar conclusion appears to have been reached by Special Rapporteur Asbjorn Eide in his report on how to accommodate the diverse needs and aspirations of minority groups in a pluralistic society with due respect for fundamental human rights and freedoms: The best way to counter the threat posed by ethnic conßict is an appropriate and effective policy of minority or group protection, combined with a quest for national conÞdence-building and co-operation within existing, sovereign states in full respect for their territorial integrity; in essence, to form out of the territorial nation a civic nation that allows for double identity and loyalty: to the civic nation as a whole, respecting the common legal code with particular emphasis on equality and non-discrimination in the common domain, and at the same time to maintain oneÕs identity to the separate ethnic, religious or linguistic group.49 In addition to Article 27, there have been a number of subsequent international instruments and declarations that deal with the rights of religious minorities. Most important among these are the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief;50 the 1993 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities;51 the 1995 Council of Europe Framework Convention for the Protection of National Minorities;52 the 1990 Conference on Security and Cooperation in Europe Document on the Copenhagen Meeting of the Conference on the Human Dimension;53 and the 1991 Report of the Conference on Security and Co-operation in Europe on the Meeting of Experts on National Minorities.54 The four essays in part 2ÑInternational Legal ProtectionÑeach explore different dimensions of the way these international human rights conventions and declarations operate together to provide protection for the rights of religious

Introduction 15

minorities. Chapter 4 opens the discussion by examining the crucial function of external monitoring mechanisms in the area of religious freedom and the practical utilization and comparative effectiveness of UN, regional and bilateral institutions and processes. Having Þrst set out the nature and scope of the problem and the possible range of responses available at the international level, the chapter proceeds to consider the legitimacy of external monitoring in a world of declining adherence to statist conceptions of sovereignty and increasing penetration of international human rights law in the internal conduct of states. It is argued that regional and multilateral mechanisms are preferable to bilateral approaches in an ideal world, but that, in addition, both NGOs and religious institutions are important actors that need to be fostered and developed in protecting belief-related human rights. Given the diversity and complexity of the barriers faced by religious minorities in many parts of post-communist Central and Eastern Europe, it is also suggested that evolving UN ad hoc mechanisms should be expanded and the capacity of individuals to take communications to treaty bodies such as the Human Rights Committee under the Optional Protocol55 to the ICCPR should be augmented. Chapter 5 then provides an overview of the protection afforded to religious minorities by the European Convention for the Protection of Human Rights and Fundamental Freedoms,56 the most sophisticated and effective of the regional human rights regimes. The authors review a number of recent rulings of the European Court of Human Rights under Article 9 of the Convention and suggest that while the Court is showing an increased willingness to criticize state conduct inconsistent with the Convention, it has maintained a comparatively conservative approach in decisions affecting minority religions. In a number of cases since 1993, the Court has accepted as neutral, and therefore acceptable, laws which serve social goals asserted to be legitimate yet which impact negatively on members of minority religious groups. The Court has also demonstrated a tendency in its reasoning to substitute its own objective determination of the impact of alleged violations on religious practices in place of the actual convictions of affected minorities. If the rights of religious minorities are to be better protected under the European Convention, the authors argue that the CourtÕs jurisprudence needs to change in two signiÞcant ways. First, the Court should seek progressively to narrow the margin of appreciation it currently allows to state parties to enforce varying national standards which privilege the majority religious view. In those cases where state action impacts negatively on the rights of religious minorities, the Court should therefore be more critical and rigorous in assessing the justiÞcations advanced by state parties. Second, the Court should be careful to avoid substituting its objective assessment of the impact of state action for the actual experience of affected minorities and should pay more attention to the harm caused to the values of autonomy and human dignity by limitations on religious freedom.

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In chapter 6, Jeremy Gunn analyzes the methods and processes which the Organization for Security and Co-operation in Europe (OSCE) and related regional European bodies have developed to protect the rights of religious minorities. Following the recommendations of the OSCEÕs Human Dimension Seminar on Freedom of Religion, which was held in Warsaw in April 1996, and the two subsequent meetings of an Advisory Panel of Experts to develop further recommendations, Gunn considers the prospects of the OSCE and the OfÞce of Democratic Institutions and Human Rights in Warsaw (ODIHR) in assisting European countries to resolve concrete problems faced by religious groups through their own constitutional, legal, and administrative structures. GunnÕs conclusion is that one noticeable effect of the OSCEÕs efforts in this area has been the unintended result of improving communications and coalitions among religious minorities. The Þnal essay in part 2 by Johan van der Vyver confronts the vexing question concerning the right to self-determination of religious minorities under international law. The UN Charter itself embodies an inherent tension in this area between Article 1, which declares that there should be Òrespect for the principle of . . . self-determination of peoples,Ó and Article 2.4, which defends the Òterritorial integrity or political independence of any state.Ó To what extent are these aims compatible, especially where, as in much of Central and Eastern Europe, minorities and majorities are inextricably intermingled? Van der Vyver concludes that this right does not generally encompass the right to secede from a state. Rather, he introduces the concept of Òsphere sovereigntyÓ that would allow minority groups more control over their activities and futures and would therefore help to transform the drive toward secession into the pursuit of goals within the competency of the particular religious group without state interference.

c. human rights and religious minorities — case studies, east and west Across Central and Eastern Europe during the communist era the conditions for different religions varied according to the distinct histories, cultures, levels of social and economic development, and political systems of the different states. The range of church-state models and differing levels of religious freedom are almost impossible to classify in a systematic fashion.57 The following descriptionsÑwhich overlap and are intended as selected examples rather than as rigid ÒmodelsÓÑdescribe some of the variants that existed: ¥

Òsecular absolutism,Ó as in Albania where thousands of mosques, churches, and monasteries were forcibly closed in an attempt to create a totally atheist state;

Introduction 17

¥

¥

¥

Òhostile separation and persecution,Ó as in the former Soviet Union where religious dissidents were severely repressed, some religious groups, such as the Greek Orthodox (or Uniates) of Western Ukraine were forced underground, and religious institutions were closely controlled by government ofÞcials and the state security services; Òrelative accommodation,Ó as in the former Czechoslovakia, Hungary, Poland, and some of the constituent parts of the former Yugoslavia where Catholicism and the major Protestant groups continued to enjoy relative freedom and privileges in comparison with churches in the Soviet Union; in Poland it is noteworthy that the historical position and prominence of the Catholic Church contributed to strong resistance to state power during the communist era; and Òendorsed and established churches,Ó as in Romania and republics in the former Yugoslavia such as Serbia and Macedonia, and to a partial extent Bulgaria, where it was acknowledged that Eastern Orthodoxy had a special position in the different countryÕs history and traditions (and at the extreme end, was granted an enforced monopoly in religious matters) and thereby was used as a means to galvanize the power of the ruling regime and to strengthen nationalist sentiments, while at the same time being closely controlled by the government, as in the former Soviet Union.

Following the collapse of communism beginning in the late 1980s, the conditions for religions changed dramatically in these countries. Each of the essays in part 3 examine how various issues and tensions in relation to the rights of religious minorities, and religious freedom more generally, evolved and continue to develop in the region. In section B, the positions of religious minorities in a number of Western European countries are also considered in order to assist the reader to place these changes in a comparative European context.

1. central and eastern europe Tama«s Fo¬ldesi has observed that there are two general features, besides geographic proximity, that unite the countries in Eastern Europe. The Þrst is the large-scale ethnic and religious heterogeneity of the region. Although Christianity generally dominates in this region (Muslims and Jews are an insigniÞcant minority), individual countries embrace signiÞcantly different forms of Christianity. Those more to the East, including Ukraine, Rumania, Bulgaria and Serbia, are predominantly Eastern Orthodox. In Poland, Slovakia, Hungary, Croatia, and Slovenia, the Catholic religion is predominant. In the Czech Republic and the former Ger-

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man Democratic Republic, Protestantism is strong, and the number of Protestant believers is also high in portions of Hungary, Western Rumania, and Slovakia.58 The second feature is that, until recently, each country had for at least four decades belonged to the Soviet bloc. Thus, the entire region inherited from the communist era certain common attitudes and actions regarding human rights and religious freedom. Each of the chapters in this section addresses the ways in which these ideas have evolved and have been inßuenced by the divergent historical, social, political, and cultural forces in different parts of the region. Chapter 8, by Serhii Plokhy, considers the protection of religious minorities in two major successor-states of the former Soviet Union, Russia and Ukraine. These two states provide an interesting contrast: Ukraine, with three major churches (the Greek-Catholic and three separate Orthodox, plus a historically strong Protestant community), does not have a single dominant church, unlike Russia, in which Orthodoxy is intertwined with the deÞnition of being Russian and the Orthodox Church has traditionally had a close relationship with the state. Plokhy analyzes the divergences in religious pluralism in Russia and Ukraine by analyzing contrasting models of state-building in the two countries, and concludes by noting that the weakness of Ukrainian nationalism has resulted in more ßexible positions by the countryÕs major churches and the state in negotiating the role of the state in religious affairs, as well as in greater tolerance for religious pluralism than in Russia. Chapter 9 considers Bulgaria, one of the most ethnically and religiously heterogeneous nations in post-communist Europe: in addition to Orthodox ethnic Bulgarians, there are the Roma, among whom there are both Orthodox and Muslims, Pomaks, who are both Slavic and Muslim, and a large minority of Muslim Turks. While the forced name-changing and emigration campaign against the Turks in 1984Ð85 was quite brutal, it is noteworthy that since 1989 Bulgaria has been one of the most stable nations in Southeastern Europe, especially in regards to the sizeable Muslim minority (in stark contrast to the Yugoslav successor states.) In his essay, Krassimir Kanev explores the turbulent history of the relationship between Muslims and Bulgarians, and the constitutional position of the Muslim minority under Bulgarian law from the nineteenth century to the present. Kanev describes how the treatment of Muslims in Bulgaria has improved since the end of communism. Muslims, and especially Turks, are no longer subject to the forced emigration, name-changing campaigns, or other egregious forms of human rights violations they had suffered under communism. But while religious rights and freedoms are generally being restored or newly established, some concerns over the legal position of the Muslim minority remain. The issue of restoration of religious property remains

Introduction 19

unresolved, and the Þrst post-communist Bulgarian Constitution allows for the banning of ethnic or religious political parties (although this has not been enforced in practice). Kanev concludes by observing that although the very notion of Òrights of religious minoritiesÓ remains highly contentious in Bulgaria, a recent decision on a case in the European Court of Human Rights, Hasan & Chaush v. Bulgaria, recognized as discriminatory the existing legal basis for church-state relations in Bulgaria, and may well provide for more equality of recognition and incorporation of minority religious groups in the future. In chapter 10, Hungarian constitutional law scholar Bala«zs Schanda discusses the legal situation of religious minorities in Hungary, a country which arguably has the oldest tradition of constitutionalism in Europe. The sociological background to post-communist HungaryÕs development of new constitutional standards for church-state relations is the decreased religious heterogeneity of the country since the two world wars, although in the post-communist period there has been an increase of small religious groups wholly new to the region. Against the backdrop of the tension between the increasingly universal acceptance of fundamental human rights and the strongly historical determination of church-state relations, Schanda provides an insight into the reality of legal protections for minority religions in Hungary. He points out that certain privileges, such as sponsoring of army chaplains, is reserved for the four ÒhistoricÓ religious communities of Hungary (Roman Catholicism, Judaism, the Lutheran Church, and the Reformed Church.) Schanda argues that this represents not a violation of equality or a restriction of religious freedom, but the institutionalization of social reality reßected in number of adherents. In this regard, his analysis echoes the sentiments of Harold Berman who, in the context of the Russian experience, has warned that it is necessary to evaluate human rights related to religion or belief with a view to the law, moral, and political theory, and historical particularities of the place where those rights are to be realized: [Russia] is undergoing an unprecedented historical experience of tumultuous and even catastrophic transition from one type of political system to another, from one type of economic system to another, and from one type of belief system to another. It is entirely inappropriate, in my view, to apply to Russia today the broad provisions on religious freedom of the international human rights covenants without taking into consideration RussiaÕs present situation viewed in the light of RussiaÕs historical experience. Rights may properly be declared in universal terms, but their application in speciÞc cases must always take into account the speciÞc circumstances of those cases.59

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2. western europe—comparative perspectives Building upon the earlier analysis of Little and Barker in part 1, in chapter 11 Carolyn Wah considers the role of European Parliamentary ÒEnqueteÓ Commissions in various Western European states in redeÞning ÒreligionsÓ in order to protect citizens from the inßuence and control of alleged destructive ÒsectsÓ and Òcults.Ó Focusing primarily on the German Enquete Commission originally assembled on June 12, 1996, Wah explores how this process may impact upon constitutional and statutory protections for minority religions throughout Europe. She argues that the tendency toward stratiÞcation of religious organizations into different ÒtiersÓ is a dangerous incursion into liberties presently identiÞed in European democratic societies as fundamental freedoms. Several examples of discrimination encountered by a minority religion in Germany, the JehovahÕs Witnesses, illustrate her argument. In chapter 12, Rosa Marõ«a Martõ«nez de Codes examines the contemporary model of relations between the state and religious minorities in Spain. This is a model she refers to as Òconcordation,Ó that is, one based on a system of agreements between church and state, and she contrasts it to the other two models found in the European UnionÑstate churches (such as the United Kingdom and Greece) and separation of church and state (France and the Netherlands, for example.) Comparing this model to the systems operating in Italy and Germany, de Codes considers the virtues of a model based on the signing of bilateral agreements which derives from the ÒconcordatÓ tradition that has evolved in countries with a Catholic majority. She concludes by questioning the wisdom of attempting to export the Spanish model to other countries in Europe. The Þnal essay in part 3 by Willy Fautre« examines the relationship between religions and the state in Belgium. Like Wah, Fautre« considers the dangers to religious freedom posed by parliamentary commissions, which single out certain new and minority religious groups as ÒcultsÓ and Òsects.Ó Fautre« expresses his concern with what he sees as a two-tiered system that is not limited to Belgium but is found throughout Europe, resulting in signiÞcant discrimination against minority faiths and excessive power for the state in church-state affairs. However, despite these concerns, it is interesting to note that Fautre« concludes by rejecting the wholesale adoption of the American system of strict separation of church and state. Like Harold Berman, cited earlier, he acknowledges both the historical speciÞcity of each European stateÕs church-state arrangements and expresses the belief that European nations can adjust their systems to offer minority religions more equal access in order to meet the challenges of a new, more open Europe and a globalizing world where ideas and people move much more freely than in the past.

Introduction 21

d. non-legal approaches In confronting the relationship between religion and human rights, theologian Donald Shriver poses the following question: Does your vision of human rights concepts, justiÞcations, and enforcement do justice to both the dignity and corruptibility of us humans? It is quite possible that religious systems have accented the corruption to the neglect of the dignity, while secular human rights thinking has accented the reverse. The latter may not agree that the democratic system of government requires advocates who take good and evil with equal seriousness, but it is hard to avoid the balance of wisdom in Reinhold NiebuhrÕs famous aphorism: ÔThe human capacity for justice makes democracy possible; the human inclination to injustice makes democracy necessary.Õ60 The Þrst three sections of this book describe how human rights, deÞned as a legal project, can in theory and do in practice protect religious minorities. However, Shriver reminds us that a legally based approach to human rights has limits, and challenges us to consider how other approaches, particularly religious onesÑinstitutionally, through the churches, and theologicallyÑmay protect religious minorities. All of the preceding essays consider legal issues in the protection of religious minorities. The last four essays consider the potential of alternative approaches to the protection of religious minorities, which hinge essentially on the functioning of what is referred to loosely and fashionably as civil society, that is, non-state, non-commercial actors. One, Chris HannÕs essay, speciÞcally takes on the question of whether the hopes for human rights protection pinned on civil society understood in the classical senseÑthat is, voluntary associations of citizens, which blossomed in Poland after the fall of communismÑare justiÞed. Tim ByrneÕs and Robert GoeckelÕs essays consider the role in religious minorities protection of the churches as transnational actors: although churches are sometimes less clearly deÞned as civil society actors because of their potential closeness to the state where strict separation of church and state does not exist, nonetheless the churches are generally considered within the sphere of civil society when mentioned as an additional potential source of support for human rights in general and those of minorities in particular. Finally, KrajewskiÕs essay considers the project of interfaith dialogue, also a civil society activity in that it is not sponsored by the state but entered into freely by believers from different faiths, and its potential to affect the relations of majority and minority faiths and hence the protection of religious minorities.

22 p e te r g. da nchin

Hann describes the post-communist situation of the Greek Catholic Ukrainian minority in Eastern Poland in the area around the border-city of Przemys·: paradoxically, the difÞculties they encounter as a religious minority have increased, not lessened, with the end of communism, the rise of political decentralization, and the proliferation of civil society organizations, which in Przemys· frequently take on a stridently nationalist agenda. The increase in economic insecurity with the end of the communist-style welfare state has also contributed to tensions between Roman Catholic Poles and Greek Catholic Ukrainians, particularly as greatly increased poverty in nearby Ukraine has sharpened the stereotype of all Ukrainians as impoverished and despised petty traders. The tensions between the Roman Catholic majority and the Greek Catholic minority are particularly ironic, given that both groups, despite different rites, recognize the religious leadership of the Pope and are thus very close as faiths. Although the contemporary picture for Przemys·Õs Ukrainian minority is not entirely bleak, particularly in regard to religious education and public celebration of Greek Catholic rituals, HannÕs judicious study of this little-known polyethnic corner of East-Central Europe offers an important corrective to the popular belief that the rise of democracy, a market economy, and civil society institutions, both religious and secular, inevitably functions to protect human rights. Byrnes contrasts the promise of the post-Vatican II Catholic Church, its stated commitment to human rights and tolerance, with the post-communist reality in two nations in particular, Slovakia and Romania, both countries with ethno-religious minorities and ongoing tensions not only between majority and minority groups, but frequently between minorities as well. These two examples present an interesting contrast: in Slovakia, Roman Catholic religious identity is shared by two very distinct ethnic groups with a history of conßict, the majority Slovaks and the minority Hungarians. In Romania, a majority Orthodox country, there are two important minorities in the sensitive Transylvania region: the Roman Catholic Hungarians and the Greek Orthodox Romanians, who follow the directives of the Pope and are thus considered to be Catholics as well. In untangling the role of the Church in these complex intergroup relations, Byrnes notes the contradiction between the rhetoric of upper Church echelonsÑthat is, the Pope and Vatican-level ofÞcialsÑwith reality at the national and local levels, where, in Slovakia, for example, the Church functions much more as a microcosm of the ethnic tensions in the nation at large than as an agent of ethno-religious reconciliation or protector of ethno-religious minorities. In Romania, the Catholic ChurchÕs larger political agenda of working for the reuniÞcation of Western and Eastern Churches has led it to ignore its two minority communities in Transylvania. ByrnesÕ Þnal assessment of the role the Catholic Church as a transnational actor has played in the protection of religious minorities is as qualiÞed as HannÕs assessment of the contribution of

Introduction 23

eastern PolandÕs nascent civil society to the protection of religious minorities and the development of inter-group trust and tolerance. Goeckel, in Chapter 16, examines the involvement of religious nongovernmental international organizations (such as the World Council of Churches and the Lutheran World Federation) in East Germany. He notes these organizationsÕ quiescence on human rights issues during the communist period, which grew out of their own political agendas. While these international religious bodies occasionally acted to protect individuals in mainstream East German churches related to their own group members, these actions did not extend to members of new or minority religious groups, nor to entire persecuted congregations. In addition, he identiÞes lack of unity among the western churches as a chronic problem which hampered their ability or willingness to speak out on behalf of persecuted religious minorities in the East, as well as an imbalance between loyalty to eastern co-nationals (such as West German Lutheran support for Germans in the former Soviet Union, which was strong) and to co-religionists (which was weaker than co-national loyalty.) Finally, he notes, in a conclusion which strongly resembles ByrnesÕ, that the ability of western-based transnational religious groups to protect minority faiths was limited because Òlike the Catholic church, national subunits have not been able to avoid the power of ethnicity and nationalism.Ó These past failures continue to haunt western Protestant and interfaith nongovernmental international organizations today, as their credibility in the East remains seriously weakened. KrajewskiÕs concluding chapter departs from the rest of the essays in the book both in tone and content: it is more discursive, reßective, and descriptive than academic and analytical, but fulÞlls an important function in this volume. Krajewski gives us an insight into Polish Catholic-Jewish dialogue, an ongoing, challenging and ultimately promising if little-known project in interfaith reconciliation, a project in which he himself is a major player, not an observer. It is this challenge, developed in a country where Polish Catholic-Jewish relations are ancient, deep, and tension-Þlled, which inspires as well Polish-born Pope John Paul II, during whose papacy there have been astonishing developments in Catholic-Jewish relations, resulting recently in the PopeÕs visits to the Great Synagogue of Rome, to Israel, the Wailing Wall, and Yad Vashem, and a discussion of unprecedented candor regarding the history of Church anti-Semitism and failure to act with sufÞcient strength to protect the Jews during World War II. Krajewski argues that interfaith dialogue of the kind he describes is essential to the reduction of prejudice (anti-Semitism, in this case), and of practical use in dealing civilly with the many contentious and potentially inßammatory issues which have arisen with the end of communism, from the restitution of Church and Jewish property to the recent, disturbing discovery of a massacre of Jews in the eastern Polish village of Jedwabne during World War II perpetrated not by Germans but by Poles. Krajewski summarizes the potential of the process he

24 p e te r g. da nchin

describes as follows: ÒAbove all, I believe that Christian-Jewish dialogue is an essential fragment of a variety of dialogues needed for a better future of our planet.Ó As he describes it, the progress of Polish Catholic-Jewish dialogue in recent decades provides an interesting alternative, or more correctly, complement, to the legal regulation of relations between majority and minority faiths and the legal protection of the latter. As Shriver says in his Afterword to the volume, ÒFar back in the Jewish and Christian traditions is divine respect for Ôthe strangerÕ . . . religion and human rights need each other.Ó

endnotes 1. See Martin Krygier and Adam Czarnota, Rights, Civil Society, and Post-Communist Society in Andra«s Sajo« (ed.), Western Rights? Post-Communist Application 103 (The Hague: Kluwer Law International, 1996). 2. Francis Fukuyama, The End of History?, 16 The National Interest 3 (1989); see also Francis Fukuyama, The End of History and the Last Man 42 (London: Penguin Books, 1992) cited in Istvan Pogany (ed.), Human Rights in Eastern Europe xiii (England: Edward Elgar Publishing, 1995). 3. Ryszard Cholewinski, The Protection of Human Rights in the New Polish Constitution, 22 Fordham Int. L. J. 236, 247 (1998). 4. Vernon Bognador, Overcoming the Twentieth Century: Democracy and Nationalism in Central and Eastern Europe in Pogany, above n. 2, 4. 5. Pa«l Dunay, Nationalism and Ethnic Conflicts in Eastern Europe: Imposed, Induced or (Simply) Reemerged in Pogany, above n. 2, 21Ð2. 6. For a discussion of the relationship between the assertion of ethnic and national identity and intolerance and discrimination in regard to religious and other forms of fundamental belief, see David Little, Belief, Ethnicity, and Nationalism, 1(2) Nationalism and Ethnic Politics 284Ð301 (1995). 7. See the discussion in the ÒIntroductionÓ of Irene Bloom, J. Paul Martin and Wayne L. Proudfoot (eds.), Religious Diversity and Human Rights 1Ð2 (New York, Columbia University Press, 1996). 8. Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Touchstone, Simon & Schuster, 1997). Cf. Amartya Sen, Democracy as a Universal Value, 10 J. Dem. 3, 16 (1999) (arguing that HuntingtonÕs thesis on the clash of civilizations provides inadequate recognition of the heterogeneities within each culture and does not survive historical scrutiny). 9. In attempting to draw EuropeÕs eastern boundary post-Cold War, Huntington suggests that Europe ends where Western Christianity ends and Islam and Orthodoxy begin: ibid. 158. He refers to the Ògreat historical line that has existed for centuries separating Western Christian peoples from Muslim and Orthodox peoples. This line dates back to the division of the Roman Empire in the fourth century and to the creation of the Holy Roman Empire in the tenth century. It has been roughly in its current place for at least Þve hundred years. Beginning in the north, it runs along what are now the borders between Finland and Russia and the Baltic states (Estonia, Latvia and Lithuania) and Russia, through western Belarus, through Ukraine separat-

Introduction 25 ing the Uniate west from the Orthodox east, through Romania between Transylvania with its Catholic Hungarian population and the rest of the country, and through the former Yugoslavia along the border separating Slovenia and Croatia from the other republics. In the Balkans, of course, this line coincides with the historical division between the Austro-Hungarian and Ottoman empires. It is the cultural border of Europe, and in the post-Cold War world it is also the political and economic border of Europe and the West.Ó 10. W. Cole Durham, Perspectives on Religious Liberty: A Comparative Framework in Johan D. van der Vyver and John Witte, Jr., Religious Human Rights in Global Perspective: Legal Perspectives 18 (The Hague: Martinus Nijhoff Publishers, 1996). 11. John Witte, Jr., Law, Religion, and Human Rights, 28 Colum. Hum. Rts. L. Rev. 1, 4 (1996). 12. Louis Henkin, The Age of Rights xvii (New York: Columbia University Press, 1990). 13. Hilary Charlesworth has argued that the Òmajor religious traditions have not engaged adequately with the international law of human rights. These standards offer an understanding of the Ôrock-bottom of human existenceÕ that needs to be reckoned with further rather than ignored or undermined.Ó: Hilary Charlesworth, No Principled Reason, Final Centenary Lecture at St. PatrickÕs Cathedral, Melbourne, October, 1997, published in 7(9) Eureka Street 24, 25 (1997). 14. These are the main features of the deÞnition of ÒreligionÓ suggested by The Project on Religion and Human Rights in John Kelsay and Sumner B. Twiss (eds.), Religion and Human Rights iv (New York: The Project on Religion and Human Rights, 1994). See also the deÞnitions proposed by U.N. Special Rapporteur Elizabeth Odio Benito, Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, United Nations, Geneva (1989) at 4 (Òan explanation of the meaning of life and how to live accordinglyÓ); Yoram Dinstein, Freedom of Religion and the Protection of Religious Minorities in Y. Dinstein and M. Taboray (eds.), The Protection of Minorities and Human Rights 146 (1993) (Òrelates to faith in God as a Supreme Being, or in multiple deities, or at least in some supernatural powers or spirits capable of inßuencing human affairsÓ). 15. Ibid. 16. To fundamentalists, the borders of religious certainty are strictly deÞned; there is a demand for absolutes within that unique religious tradition; to pluralists, the borders are good fences where one meets the neighbor. To fundamentalists, secularism, or the denial of religious claims, is the enemy; to pluralists, secularism, seen as the separation of the government from the domination of a single religion, is essential for religious diversity and the protection of religious freedom: see Bahiyyih G. Tahzib, Freedom of Religion or BeliefÑEnsuring Effective International Legal Protection 12 (The Hague: Martinus Nijhoff Publishers, 1996). 17. See Leonard Swidler, Human Rights: An Historical Overview in Hans Ku¬ng and Ju¬rgen Moltman (eds.), The Ethics of World Religions and Human Rights 12, 14 (1990). 18. See, e.g., Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliveiro, and

26 p e te r g. da nchin Steven C. Wheatley (eds.), Constitutionalism and Democracy: Transitions in the Contemporary World (1993); Stephen Holmes and Cass R. Sunstein, The Politics of Constitutional Revision in Eastern Europe in Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995). See further Vicki C. Jackson and Mark Tushnet (eds.), Comparative Constitutional Law (1999). 19. For an excellent analysis of the different models of protection of religious liberty, see Durham, Perspectives on Religious Liberty: A Comparative Framework in van der Vyver and Witte, above n. 10, 1Ð44. 20. UN Doc E/CN. 4/Sub.2/200/Rev.1, UN Sales No. 60.XIV.2 (1960); reprinted in full in Tad Stahnke and J. Paul Martin (eds.), Religion and Human Rights: Basic Documents 2Ð55 (New York: Center for the Study of Human Rights, 1998). 21. These include: (i) ignorance and lack of understanding (which characterizes much of the history between Islam and Christianity over the last fourteen centuries); (ii) the idea of a sole repository or monopoly of truth (and therefore a duty to combat other religions and beliefs leading ultimately to holy, divine or just wars); (iii) legal, social and economic inequalities (particularly where a religion is perceived to threaten the existing power structure within the dominant religion); (iv) exploitation of religion for political or other ends; and (v) developments of history: see further Tahzib, above n. 16. 22. For example, the treaty in 1536 signed by Francis I of France and Suleiman I of the Ottoman Empire allowed the establishment of French merchants in Turkey and granted them individual religious freedom. See also the Treaty of Osnabruck of 1648, the Treaty of Berlin of 1878 and the Paris Peace conference after the First World War and the various peace treaties dealing with the rights of religious minorities. 23. UDHR, Adopted and proclaimed by United Nations General Assembly resolution 217 A (III) on 10 December 1948; ICCPR, Adopted and opened for signature, ratiÞcation and accession by United Nations General Assembly resolution 2200 A (XXI) on 16 December 1966; Entered into force on 23 March 1976 in accordance with Article 49; ICESCR, Adopted and opened for signature, ratiÞcation and accession by United Nations General Assembly resolution 2200 A (XXI) on 16 December 1966; Entered into force on 3 January 1976 in accordance with Article 27. These three treaties are contained in Twenty-Five Human Rights Documents 6Ð29 (New York: Center for the Study of Human Rights, Columbia University, 1994). States that ratify the Covenants are legally bound to observe treaty provisions and it is the responsibility of the international community to hold governments accountable to these treaty obligations. 24. For a helpful overview, see Natan Lerner, Religion, Beliefs, and International Human Rights (New York: Orbis Books, 2000). 25. Opened for Signature by the Council of Europe on 4 November 1950; Entered into Force on 3 September 1953. See Twenty-Five Human Rights Documents, above n. 23, 140. See further Danchin and Forman, chapter 5 in this volume. 26. For an excellent recent discussion of the challenges posed by communitarians such as Michael Sandel, Alasdair MacIntyre, Charles Taylor and Michael Walzer to liberal political theory, see Stephen Mulhall and Adam Swift, Liberals and Communitarians (1992).

Introduction 27 27. Nathan Glazer, Individual Rights against Group Rights and Michael Walzer, Pluralism: A Political Perspective both in Will Kymlicka (ed.), The Rights of Minority Cultures 123Ð54 (New York: Oxford University Press, 1997). 28. Will Kymlicka, Introduction in ibid. 9. 29. Ibid. 11. 30. Ibid. Note also Iris Marion YoungÕs ÒrelationalÓ theory of difference. Young sees the discussion of multiethnic states as too often oscillating between two extremesÑ assimilation (which is associated with liberal individualism) and separatism (which is associated with xenophobic nationalism). Instead, she advances an account that attempts to accommodate the reality of cultural differences, while still encouraging independence: see ibid. 12, referring to Iris Marion Young, Together in Difference: Transforming the Logic of Group Political Conflict in ibid. 155. 31. Will Kymlicka, Minority Rights at Home and Abroad, 2000Ð1 Annual Law and Philosophy Lecture, Columbia Law School, February 21, 2001. See also Will Kymlicka, Citizenship in Diverse Societies (New York: Oxford University Press, 2000). 32. Kymlicka suggests that experience in Western liberal democracies teaches us that this position is inherently unstable because secessionist parties will arise sooner or later as a normal and expected part of a multi-national federal state. 33. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 9 (New York: Clarendon Press, Oxford, 1995). 34. Kymlicka (ed.), The Rights of Minority Cultures, above n. 27, 14. 35. Kymlicka (ed.), Multicultural Citizenship, above n. 33, 7. Note, however, that some minority rights theorists, for example Chandran Kukathas, have argued in favor of internal restrictions (subject to an adequately deÞned right of exit from the group) but against external protections (which artiÞcially Þx the constantly changing boundaries between groups and also the power relations within each group): Chandran Kukathas, Are There Any Cultural Rights? in Kymlicka (ed.), The Rights of Minority Cultures, above n. 27, 228 (discussed in the Introduction at 14). See also Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. Mich. L. Rev. 751 (1992) (discussing the relationship between pluralism and communitarianism). 36. Aleksii II, Patriarch of Moscow and All Russia, Address of the Patriarch to the Councils of the Moscow Parishes at the Episcopal Gathering, December 12, 1996, in 6 Tserkovno-Obschestvennyi, December 26, 1996 at 7 cited in John Witte Jr., Introduction—Soul Wars: The Problem and Promise of Proselytism in Russia, 12 Emory Int. L. Rev. 1 (1998). 37. On the Russian law, see T. Jeremy Gunn, CaesarÕs Sword: The 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Associations, 12 Emory Int. L. Rev. 43 (1998). 38. For a general discussion of this issue, see David Little, Tolerating Intolerance: Some Reflections on the Freedom of Religion as a Human Right, 1994Ð5 Bartlett Lecture, Reflections, 18-25 (SummerÐFall 1995). 39. The 1967 UN Draft Convention that was the precursor to the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief stated in Article I(d) that Òneither the establishment of a religion nor the recognition of a religion or belief by a State nor the separation of Church from State

28 p ete r g. da nchin shall by itself be considered religious intolerance or discrimination.Ó: see Note by the Secretary-General: Elimination of All Forms of Religious Intolerance, UN Doc. A/ 8330, Ann. III (1971). 40. See C. A. Macartney, National States and National Minorities 157Ð 59 (1934); Jay A. Sigler, Minority Rights: A Comparative Analysis 31Ð66 (1983) (with James B. Muldoon). See also Joel E. Oestreich, Liberal Theory and Minority Group Rights, 21 Hum. Rts. Q. 108, 110 (1999). 41. For the relevant provisions of these various agreements, see Protection of Linguistic, Racial and Religious Minorities by the League of Nations, League of Nations C. L. 110 1927 I. B. 2 (1927). See also Inis L. Claude, Jr., National Minorities: An International Problem (1955). 42. Address by the Under Secretary of State, 8 Dept. St. Bull. 479, 482 (5 June 1943) quoted in Oestreich, above n. 40, 113. 43. ICCPR, Article 27, above n. 23, 23. 44. See General Comment 23(50) of the Human Rights Committee, para 6.2 in Stahnke and Martin (eds.), above n. 20, 97, 99. 45. For an excellent overview of commentary in relation to Article 27, see Alan Phillips and Allan Rosas (eds.), Universal Minority Rights (Aûbo: Institute for Human Rights: Minority Rights Group (International), 1997). On the broader issue of minority rights under international law, see Dinstein and Tabory (eds.), The Protection of Minorities and Human Rights, above n. 14; Javaid Rehman, ÒMinority Rights in International LawÓ: Raising the Conceptual Issues, 72 Aust. L. J. 615 (1998); H. A. Strydom, Minority Rights Protection: Implementing International Standards, 14 Sth. Afr. J. Hum. Rts. 373 (1998); Oestreich, above n. 40. 46. F. Ermacora, The Protection of Minorities before the United Nations, 182 Recueil des Cours 247, 308, 321 (1983, IV). 47. Kymlicka, The Rights of Minority Cultures, above n. 27, 15. Kymlicka notes that the debate within liberal theory as to which between ÒautonomyÓ and ÒtoleranceÓ is the fundamental value can also be described as a contrast between ÒEnlightenmentÓ and ÒReformationÓ liberalism, or between ÒcomprehensiveÓ and ÒpoliticalÓ liberalism, or between ÒKantianÓ and Òmodus vivendiÓ liberalism. 48. Ibid. 49. E/CN 4/Sub 2/1993/34/Add 4 of 11 August 1993, paras 4Ð23. 50. Proclaimed by United Nations General Assembly Resolution 36/55 on 25 November 1981: see Stahnke and Martin (eds.), above n. 20, 102. For a useful discussion in relation to this Declaration, see Donna J. Sullivan, Advancing the Freedom of Religion or Belief Through the UN Declaration on the Elimination of Religious Intolerance and Discrimination, 82 Am. J. Int. L. 487 (1988). 51. Adopted and Proclaimed by United Nations General Assembly Resolution 47/ 135 on 18 December 1992: see Stahnke and Martin (eds.), above, n. 20, 162. 52. Opened for Signature by the Council of Europe on 1 February 1995; European Treaty Series No. 157: see ibid. 165. 53. Adopted in Copenhagen on 29 June 1990: see ibid. 172. 54. Adopted in Geneva on 19 July 1991: see ibid. 175. 55. Adopted and opened for signature, ratiÞcation and accession by United Nations General Assembly resolution 2200 A (XXI) on 16 December 1966; Entered into force

Introduction 29 on 23 March 1976 in accordance with Article 9, in Twenty-Five Human Rights Documents, above n. 23, 30. 56. Opened for signature by the Council of Europe on 4 November 1959; Entered into force on 3 September 1953, in Twenty-Five Human Rights Documents, above n. 23, 147. 57. See Durham, above n. 19, 23, for a useful discussion of various ÒmodelsÓ of relations between religion and the state. 58. Tama«s Fo¬ldesi, The Main Problems of Religious Freedom in Eastern Europe in van der Vyver and Witte, above n. 10, 243. 59. Harold J. Berman, Religious Rights in Russia at a Time of Tumultuous Transition: A Historical Theory in van der Vyver and Witte (eds.), above n. 10, 285Ð86. 60. Donald Shriver, Foreword to Carrie Gustafson and Peter Juviler (eds.), Religion and Human Rights: Competing Claims? x (New York: M. E. Sharpe, 1999).

part 1 Theoretical Perspectives

Chapter 1 r e l i g i ou s m i nor i t i e s a nd r e l i g i o u s f r e e d o m : a n ov e r v i e w David Little

Religious minorities are no exception to the general rule that “minority peoples . . . have become the principal victims of gross human rights violations” since the decline of the Cold War.1 Like other minorities, they are widely perceived to be a threat to national equanimity and security. Severe apprehension over the presence and activities of religious minorities exists, among other places, in communist societies, like China and Vietnam, post-communist societies in Eastern and Central Europe and Central Asia, Muslim societies in the Middle East and South Asia, and even in some countries of Western Europe. Such apprehension has the effect of placing many religious minorities at risk. Why that is so, and what forms human rights violations against religious minorities take, requires some careful attention. While the essays in this volume focus primarily on Eastern Europe, the specific concerns associated with that region ought to be set in a broader context. Toward that end, it is necessary to supply some general terminology and categories of analysis, and then to proceed to identify some of the special types of mistreatment these groups face around the world, as well as the major causes of that mistreatment. It will also be useful to suggest some ways of protecting religious minorities in keeping with human rights standards.

34 d a vi d little

I. TERMINOLOGY

a. religious minorities Religious minorities may be divided into two major types: “belief groups” and “ethno-religious groups.”2 As the name implies, belief groups give special priority to embracing and adhering to a set of basic beliefs about the nature of reality and human destiny, together with the behavior patterns thought to be consistent with those beliefs, which the group is established to nurture and propagate. In sociological terminology, membership in such collectivities is “achieved.” Adherents join voluntarily and are expected to assume a strong sense of personal responsibility for living up to the requirements of membership. Recently publicized examples, some of which are mentioned in this volume, are Jehovah’s Witnesses, Mormons, Scientologists, Pentecostal Christians, and members of Hare Krishna and the Unification Church. The category of belief groups may be taken to include those communities nowadays referred to in public discussion as “sects” or “cults.” For reasons to be analyzed later, these terms have assumed strong pejorative connotations that seriously obstruct unbiased examination, and thus contribute to the misunderstanding and abuse of religious minorities. “Belief groups” is proposed as a more neutral and less question-begging substitute.3 By contrast, ethno-religious groups consist of members bound together by loyalty to common ethnic origins, prominently including religious identity, but interwoven with language, physical (or “racial”) characteristics, etc. Membership is typically “ascribed” by birth rather than achieved by consent, and there is usually not the same emphasis on individual commitment and responsibility as with belief groups. Examples of ethno-religious groups may, in turn, be further divided into at least two subtypes. One is “settled residents,” such as the so-called indigenous groups of the United States, Canada, and Southern Sudan, or long-established communities, such as Tibetan Buddhists and Uighur Muslims in China, or the Greek Catholic minority in Poland or Ukraine. The second subgroup might be called “displaced residents,” such as Turkish Muslims in Europe or communities of Jews, Greek Orthodox, or Italian Catholics in the United States, or other examples of “ethnic relocation.” In whatever place such a “people” may find itself, its identity and self-understanding continue to be decisively shaped by a conviction regarding “common descent” that is related to a particular geographical location with a strong religious coloration.

Religious Minorities and Religious Freedom 35

b. religious freedom Contributors to this volume are one in assuming that the appropriate normative framework for protecting religious minorities is that set of international human rights standards that constitutes “religious human rights,” or what are perhaps better referred to as “belief-related rights.”4 They include four overlapping kinds of guarantee: 1. 2. 3.

4.

The right of freedom of religious or conscientiously-held belief and its manifestation or exercise;5 The right to equality, known as freedom from discrimination “based on religion or belief ”;6 The right of members of “ethnic, religious or linguistic minorities” to profess and practice their religion or belief, to enjoy their culture, and to use their language;7 The right of individuals, including members of minorities, to be free of becoming the target of “any advocacy of . . . religious hatred that constitutes incitement to discrimination, hostility, or violence.”8

These rights are principally expressed in various sections of the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights (ICCPR), the UN Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief (DEID), and the Copenhagen Document of the Organization of Security and Co-operation in Europe.9

II. POINTS OF PERPLEXITY There are four sensitive subjects in regard to the application of belief-related rights to religious minorities that should be signaled in passing. The first concerns the limitations that governments may permissibly impose upon the “manifestation” or outward expression of a religion or belief, as distinct from merely holding or admitting to a belief. While governments may not punish adherents simply for having a belief, they are entitled, as Articles 18.3 of the ICCPR and Article 1.3 of the DEID make clear, to restrict the behavior of the members of religious groups so long as the restrictions are “prescribed by law and . . . necessary to protect public safety, order, health or morals” as well as “the fundamental rights and freedoms of others.”10 The problem is that without further clarification of the vague language involved here, these exceptions invite arbitrariness on the part of the state. The Human Rights Committee has made an important attempt to reduce that danger. In official commentary, it has ruled that governments may not

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abridge religious practices for purposes such as national security, that are not enumerated in the text of the documents, nor may restrictions be imposed on the basis of principles derived from only one religious or other tradition.11 The Committee has also explicitly clarified the implications of Article 18 for the protection of religious minorities: The terms belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community.12 Beyond that, the Committee has criticized individual governments for overbroad interpretations of the limitations clause in Article 18.3 of the ICCPR. For example, it held the Government of Egypt to account for misapplying the limitations clause to the Bahai’i community, since, in the opinion of the Committee, the Bahai’s do “not present an objective threat to public order.”13 The Human Rights Committee’s comments and determinations certainly help, but as we shall see, the limitations clauses nevertheless continue to serve as a ready pretext for the abuse of religious minorities, and further official clarification and monitoring is urgently required. A second point of general concern pertains to stipulations in the human rights instruments that appear to regulate ideas and not just overt action. The possible implications for religious minorities are arresting. One passage in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) states that “the dissemination of ideas based on racial superiority,” is properly “punishable by law,”14 and it seems reasonable to infer that ideas based on religious superiority might be similarly outlawed.15 Moreover, Article 20.2 of the ICCPR declares as properly “prohibited by law” “any advocacy of . . . religious hatred that constitutes incitement,” not only to “violence” and “discrimination,” which are matters of behavior or overt action, but also to “hostility,” which includes “inner” convictions and mental states, such as attitudes and emotions. There is a serious question as to whether these provisions do not threaten important protections of “the freedom of religion or belief,” elsewhere guaranteed in the human rights instruments. For example, a 1983 ruling by the European Commission of Human Rights, that people have “a right not to be offended in their religious feelings by publications,”16 could obviously have a chilling effect upon religious expression. To keep the definition of “offensiveness” within reasonable bounds is very hard to do. If such an understanding

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were widely applied, religious minorities might be especially endangered, since propagation of their beliefs is very often likely to cause offense.17 As a matter of fact, a decision of the British High Court of Justice issued on April 9, 1990 added to the danger, by upholding a blasphemy law that protects only the established religion of the country. The exclusive basis for prosecution under the law would be proof “of an intention to publish material which in the opinion of the jury is likely to shock and arouse resentment among believing Christians,” who are members of the Established Church. The problem of regulating offensive speech is here compounded by giving special protection to the religious sensibilities of just one group. Boyle and Sheen’s appeal in this regard is both important and challenging: “More thought needs to be given as to how to establish the regime of equality that international law requires where different religions and non-religious ideologies within different countries define opposing beliefs as inferior, false or heretical.”18 A third problem involves the question of “group” or “collective rights,” something of interest to all religious groups, but of special concern to ethno-religious minorities. The idea of expecting states to provide special protection, and possibly particular forms of assistance for minorities as such was omitted from the UN Charter and from the formative human rights instruments. The drafting committee deliberately excluded a more expansive minorities provision from the final version of the Universal Declaration,19 and Article 27 of the ICCPR, which speaks of the rights of minorities, explicitly attaches those rights to individual “persons belonging to such minorities.”20 However, more recent documents, such as the 1992 UN Declaration on Minorities, and the 1994–5 UN Draft Declaration on the Rights of Indigenous Peoples, have implied a notion of group rights above and beyond individual rights.21 The Draft Declaration on Indigenous Peoples goes still further and “speaks of the indigenous peoples as collectivities,” who have all manner of group entitlements.22 The perplexity is how conflicts between individual and collective rights are to be resolved. Within limits, human rights provisions clearly permit religious and other groups to choose members and select officials on grounds of belief, gender, ethnic origin, etc., though only insofar as they are voluntary groups, groups, that is, from which individuals are free to exit without civil penalty. Should ethnic, linguistic, and religious minorities of the sort envisioned in these more recent documents be thought of as voluntary in the same sense? Are members truly free to come and go, as they will? There is a famous Canadian court case vindicating the individual rights of members of minorities, who have attempted to leave their group, and have been forcibly retained in the name of a “collective Aboriginal right.” Is that ruling—to the effect that members “cannot be coerced or forced to participate . . . by any group purporting to exercise their collective rights”—the norm in such conflicts, and, if it is, how far are the

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rights of individuals to be protected against intimidation and other forms of coercion that fall short of outright physical restraint?23 A fourth problem concerns the question of the limits of proselytism.24 It poses the right of free religious expression and the right to change one’s religion against the right of privacy and the right to protection against coercive intrusion, or “improper pressure,” in matters of religion or belief. A whole series of laws has either been recently passed, as in Russia,25 or vigorously reasserted, as in Greece,26 affirming the right of traditional religions to restrict the efforts, usually of religious minorities, to propagate their faith. Some of these laws have been adjudicated by the European Court of Human Rights,27 and while recent decisions in regard, for example, to Greek anti-proselytism laws have ruled in favor of the rights of minorities to engage in the dissemination of their views, the tensions between minorities and established or majority religions raised by the issue of proselytism have hardly been resolved. In a recent publication, Natan Lerner enunciates some of the remaining areas of tension: [I]n a democratic society people should be free to disseminate their religious views. They should not be silenced simply because some people prefer not to hear those views. There is, however, a right to privacy, and uninvited speech should not necessarily prevail over this right. [P]roselytism involving material enticement—money, gifts, or privileges—should be considered a form of coercion and, thus, may be limited by law. Such material enticements exceed the area of freedom of speech and expression. However, borderline cases may not be easy to judge. [O]ne of the limits of the right to proselytism is the protection of communal or collective identities. Minority rights are relevant to this concept. The international community has been reluctant to abandon the individualistic approach followed since the establishment of the United Nations. A change to this approach seems necessary since group rights deserve to be protected. [International legal opinion tends to oppose restrictions on beliefrelated rights bearing on proselytism, but representatives] of some religious communities take a different view, claiming that their communities cannot be expected to depart from deeply rooted traditions. In view of the intensity of their objections, it seems difficult to assert that these opponents should be expected to consider the rights to change religion and proselytize as reflecting binding customary law for them. The issue of universalism versus particularism is relevant in this respect. For example, the particular situation of indigenous populations must be contemplated.28

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III. C AU SES OF MISTREATMENT The problems faced by religious minorities were and continue to be notorious under communist rule. However, while the collapse of communist domination in Eastern Europe and the former Soviet Union has expanded religious freedom for minorities, it has simultaneously presented new difficulties. One underlying cause of conflict in much of the post-communist world, and for that matter in most remaining communist regimes as well, is the threat religious minorities are perceived to represent to the dominant or “official” national religion or belief. It seems religious minorities are regularly picked on and abused because their alternative commitments are taken to impugn the national faith. What is key, however, is that the dominant faith is “national”—and thus intimately connected to the pervasive phenomenon of nationalism. There are two decisive reasons why religion has become so central to the expression of nationalism around the world, as in Northern Ireland, Israel, Sudan, Tibet, Sri Lanka, Iran, Algeria, India, Russia, Greece, Bosnia, etc. One is that nationalism is the assertion of a “right to rule” over the inhabitants of a given territory, and as such seeks the kind of political legitimacy religion is capable of providing.29 The second is that nationalists are frequently members of a distinctive ethnic group, as in Israel, Tibet, Sri Lanka, Sudan, and Bosnia, among others, who demand an autonomous polity for the sake of protecting and expressing the ethnic traditions of the group to which they belong. Accordingly, they are inclined to make fervent use of deep and important connections that exist between ethnicity and religion.30 The problem for religious minorities, whether belief groups or ethno-religious groups, is that by dissenting or deviating from the “official” national faith, either by their expressed beliefs or simply by their presence, they appear disloyal to the nationalist cause. Boyle and Sheen report recent concern in Bulgaria over the “proliferation of avowedly nationalist organizations.” One leader urged that ethnic minorities be confined to ghettos, and he “supported the struggle against ‘sects,’ ” which to him are a ‘spiritual narcotic’ for the nation.31 Accordingly, religious minorities are usually perceived either as a corrupting or polluting influence of the national culture, or, in extreme cases, as a source of violent subversion. As such, they are liable to restriction, sometimes of a very severe sort.

IV. VARIABLE RELEVANCE OF HU MAN RIGHTS NORMS Belief-related rights apply differently to the two major types of religious minority. Belief groups are typically interfered with or discriminated against specifi-

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cally because of the beliefs and practices they espouse. Their expressed ideas and convictions are usually taken as a severe threat to established order or as being dangerously heretical. Scientologists or Jehovah’s Witnesses in parts of Europe are widely believed to imperil democracy or public health.32 The doctrines and activities of unregistered evangelical Christians in parts of China are thought, among other things, to incite social chaos. The belief of the Bahai’s that their founder superseded the Prophet Mohammed is punishable from the point of view of Islamic orthodoxy in Iran,33 and the teachings of the Shi’ites and non-Wahhabi Sunni Muslims in Saudi Arabia are regarded as severely heretical and worthy of extensive restriction.34 In contrast, ethno-religious minorities are typically abused or discriminated against not primarily because of their beliefs, but because of certain genetic or “inherited” characteristics, such as race, place of origin, or language. These characteristics are taken by the dominant population to signify deviance and inferiority, as in the case of the Tibetan Buddhists or Uighur Muslims in China,35 the native Indian populations in the United States and Canada,36 the Tamils in Sri Lanka, or the black African indigenous communities in Sudan.37 Even though groups like these are not singled out primarily because of their beliefs, “religion or belief ” is nevertheless pertinent to their predicament in two ways. The “ethnic identity” of these groups is, from their point of view, strongly infused with religious loyalty (hence the term, “ethno-religious”), and the dominant population regularly invokes its own religious or cultural beliefs to justify unequal or otherwise abusive treatment of these minorities.38 This second point about the role of religion or belief in certifying repression is analytically fundamental, even though repressive treatment is usually also justified by appeals to public order and safety, as in all of the above cases.

V. RISE OF RELIGIOUS MINORITIES There are essentially three causes of the proliferation and, in some cases, reactivation of minority faiths.

a. resistance to ethnic, cultural and religious domination While the “religion card” indisputably serves to legitimate and motivate nationalist campaigns—often initiated on behalf of a majority, the very attempt to monopolize religion or belief in a nationalist cause inevitably intensifies the resistance of those who do not share the dominant majority identity, and particularly so in a society that is multi-ethnic and multi-religious. That is why

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nationalist conflicts readily degenerate into prolonged “culture wars,” as in Bosnia,39 Sudan,40 and Tibet,41 and also why the implementation of a regime of belief-related human rights (along, of course, with other human rights) becomes so salient, if so challenging, a part of reducing lethal conflict in those situations.42

b. globalization and the spread of capitalism While important, this cause or condition is frequently oversimplified. For example, one of the forces often associated with globalization—secularization— was supposed, on some accounts, to eliminate religion altogether. But far from dispelling religious passion, the process of secularization, or the reduction of religious influence upon public life, has, in fact, often stimulated and intensified it. The same is true of a related matter: the expansion of world capitalism. Lester Thurow is partly right in linking the emergence of “religious fundamentalism,”43 which has helped to stimulate or reanimate at least some religious minorities, to the consequences of marketization: “Those who lose out economically or who cannot stand the economic uncertainty of now knowing what it takes to succeed in the new era ahead retreat into religious fundamentalism . . . The new modes of behavior that are required, and which will eventually emerge, threaten cherished ancient values.”44 And as Thurow points out elsewhere, capitalism itself “generates great inequalities of income and wealth,”45 thus further contributing to uncertainty and apprehension, which themselves prepare the ground for a religious reaction. However, the religious response to such developments is, as a matter of fact, more complicated than Thurow and other like-minded social scientists admit. Some of the threats to “cherished ancient values” that the global economy causes, such as expanding economic inequality, do indeed raise deep moral and spiritual perplexities, on anyone’s accounting. Therefore, for religious people to trouble over “uncertainties” like that is not necessarily irrational, as Thurow implies, but actually quite understandable. Only those who regard globalization as an unmixed blessing in spiritual and moral terms are likely to reduce the religious reaction to mere escapism.46 In particular, this observation suggests one way in which globalization and the spread of world capitalism account for the proliferation of religious minorities. There appears to be a widespread need (not entirely unreasonable) to discover or reactivate a life perspective capable of reinterpreting and possibly reordering a world whose dominating patterns pose such deep and unmistakable moral perplexities and uncertainties.

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c. new opportunities for expanding religion or belief The decline of the Cold War offered new and inviting opportunities for proselytism throughout areas formerly dominated by Soviet Communism and elsewhere. Both traditional faiths and “new religious movements,” many of which qualify as belief groups, have been supported in their endeavors by huge foreign financial and other resources. This condition has, in reaction, generated new restrictive laws in regard to religious activity in places like Russia and Greece.47

V I . RELIGIOU S MINORITIES AT RISK IN THE LIGHT OF HU MAN RIGHTS NORMS What follows is an attempt to identify systematically some of the obstacles to religious freedom that religious minorities are encountering around the world. That will be done by cataloguing the obstacles and evaluating them according to the standards established by the belief-related human rights. The principal types of obstacle come in the form of three kinds of governmental effort48 to restrict or punish religious minorities, whether belief groups or ethno-religious groups: prejudicial treatment, administrative discrimination/ repression, and comprehensive discrimination/repression.49 We may provide samples of each type.

a. prejudicial treatment

50

In recent years, the governments of France, Belgium, and Germany have used the device of parliamentary inquiry commissions as a means of casting aspersions on the beliefs, motives, and “intentions” of various religious minorities.51 They have thereby contributed to what the UN Special Rapporteur on Religious Intolerance has referred to in one of his recent reports as a “climate of suspicion or even manifest or latent intolerance.”52 In France such a commission issued an initial report in January 1996 called, “On Cults.” The report included a list of 172 “dangerous cults,” and established a national Observatory of Cults, which would subsequently report annually on questionable minorities, and update the list of cults. Massimo Introvigne of Censur, a leading human rights monitoring group, observes: Although not technically a source of law, the report has already been quoted in court decisions and has led to discrimination against a number of groups. Teachers have been fired from public schools after years of honorable service only because they were members of Jehovah’s Wit-

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nesses, one of the most dangerous “cults” according to the report . . . . The city of Lyons has decided not to allow the use of public facilities to any group listed in the report as a “cult.” Each French Department has now a ‘Mr. Cult’ employed by the Ministry of Youth and Sport . . . to tell the cultural and sports organizations about the evil of the cults. The anticult . . . element advocates actions by the Observatory against groups mentioned in its literature or in the report but not included in the list (particularly the Mormon Church and the Catholic Charismatic Renewal). Other groups are defined as ‘cults’ by the report (including Baptists), but nevertheless called ‘benign cults,’ a contradiction since the report starts by defining a “cult” as a dangerous organization.53 On February 7, 2000, the French Parliamentary Mission to Fight Cults released its report. According to Massimo Introvigne, things have not improved: [The report] proposes a definition of “cult” (“secte”) introduced as accepted almost unanimously by “psychiatrists, academics, authors of parliamentary reports and even religious activists.” A “cult,” according to this definition, is “an association with a totalitarian structure that may or may not claim to pursue religious aims whose deeds threaten human rights and the social balance (e´quilibre social).” [In fact,] this is, perhaps, a good definition of the Mission itself. On the other hand, only a handful of anti-cult “academics” would accept it as a definition of “cult.” . . . The operative word here is “totalitarian,” and a “totalitarian” association is one where the leader “cannot be removed through a democratic process,” is not elected by the majority of members, and has the ultimate power of defining a doctrine that “cannot be contested.” Once again, French anti-cultists cannot come out with criteria which may distinguish between a genuine religion and an evil “cult.” In the Roman Catholic Church the Pope “cannot be removed through a democratic process,” is not elected by the majority of the Catholics, and has the ultimate power of defining doctrine that cannot be contested without, ultimately, leaving the Church. This is also true for countless other religious organizations. The key test of the first French parliamentary report on cults, of 1996, of “mental destabilization” (in fact, brainwashing) is now regarded as “interesting but having, in the present status of science, a subjective character making it difficult to be used in a legal scenario.” (This may be the reason why the proposal of the 1999 report to create a new crime of mind control has not been taken seriously by politicians). An additional test is now proposed in the shape of “equality between men and women”: “it

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would be a serious breach of human rights to admit that groups calling themselves religious may profess a non-equality in this field.” Again, this test is useless in order to distinguish between religions and cults since the two largest religions in France, Roman Catholicism and Islam, are often accused precisely of “professing a non-equality,” often in stronger terms than “cults.”54

An inquiry commission on “so-called sects and psychological groups” was established by the Lower House of the German Federal Parliament in 1996 to decide whether such groups represent a substantial threat to German democracy. In the two years of its existence, and at the cost of over a million dollars, the “Enquete Commission” issued an interim report in February 199755 and a final report in June 1998.56 The contents of both reports are troubling with respect to the protection of religious minorities, though there is evidence of some heartening, if inconsistent, second thoughts in the final report. “Sects and psychological groups” are defined by the commission as those “religious groups and life improvement organizations” whose “theories and practices are not compatible with the principles of the [German] constitution,” and who “proclaim and strive for another social order.”57 Examples mentioned in one or the other report are “fundamentalist groups and movements of Christian origin,”58 the Church of Scientology, Jehovah’s Witnesses, Mormons, Hare Krishna, the Unification Church, Sokka Gakkai, Ananda Marga, Transcendental Meditation, etc. The organizational, educational, and child-rearing patterns of the groups under study are portrayed as systematically opposed to and in conflict with established democratic social and legal principles.59 In the interim report, for example, the phrase “totalitarian power relations” is used to describe the authority structure of these groups.60 Though the interim report fails to cite evidence of unlawful behavior on the part of any of the enumerated groups, it clearly leaves the impression that such violations are highly probable, if not inevitable, in the future.61 However, the final report, in one part at least, takes a more indulgent attitude toward these groups, even though the overall tone and some of the other conclusions contradict that attitude. The final report does make a remarkable and important admission, given the widely advertised “anti-sect” predilections of some of the commission members: “On the basis of the available information, we come to the conclusion that generally the new religious and lifestance movements in Germany represent no danger for the individual, the society or the state.”62 In addition, unexpected and rather astounding qualifications—completely absent from the interim report and from most of the public discussion of the “sect problem” generated by the work of the commission—appear and need to be highlighted:

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It can in no way be claimed that young people in the new religious and ideological communities are in greater danger of becoming victims of physical and psychological abuse or damage than elsewhere. The ideal of enabling children to be independent precludes state control [of these groups] . . . . The fact that the educational values of parents do not advance independence, or may even hinder it, can be found in many different settings and is by no means unique to the new religious and ideological communities and psychological groups. The impression must be resisted that only these new groups foster an ‘education of dependency’. . . . The contribution to the security, nurturing, and opportunity [for young people that is made by these groups] is not addressed here, and must be studied in the future. It cannot be concluded that the induction of children, juveniles and young adults into such groups and movements produces nothing but danger and difficulty.63 However surprising, these statements seem nevertheless little more than grudging concessions to the commission’s critics of whom there is a growing number.64 That is so because these conclusions do not fit very well into the rest of the report, but appear to be something of an afterthought. In fact, most of the remaining text continues rather inconsistently to restate the same “potential for danger” that is the unrelenting theme of the interim report.65 Without elaborating and supporting the positive conclusions, the unmistakable implication is that the sects and psychological groups are a threat to democracy after all.66 Moreover, there are some recommendations concerning new laws and special restrictions on the Church of Scientology67 and other “religious and ideological communities . . . with anti-constitutional content” that fly in the face of the comments quoted above, and are not warranted by evidence presented in the text. Therefore, they have the effect of reanimating the simplistic and sinister image of sects that other parts of the report rightly reject.68 There is recent evidence of parliamentary agitation to implement some of the more restrictive recommendations of the final report of the Enquete Commission. A three-year “model project on sects and psycho-groups” is called for which would, as of July 1, 2000, produce new laws for the regulation of “sects and psycho-groups,” and institute counseling and information groups for monitoring such groups. In general, the appropriate response to the prejudicial treatment of religious minorities associated with the governmental anti-sect campaign in France and Germany has been definitively delivered by the Special Rapporteur on Religious Intolerance: The term ‘sect’ seems to have a pejorative connotation. A sect is considered different from a religion, and thus not entitled to the same pro-

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tection. This kind of approach is indicative of a propensity to lump things together . . . which is hard to justify and harder still to excuse, so injurious is it to religious freedom. Sects . . . are not above the law. The State must ensure that the law— particularly laws on the maintenance of public order and penalizing swindling, breach of trust, violence and assaults . . . the illegal practice of medicine, abduction and corruption of minors, etc.—is respected. In other words, there are many legal courses open and they afford plenty of scope for action against false pretenses and misdirection. Beyond that, however, it is not the business of the State or any other group or community to act as the guardian of people’s consciousnesses and encourage, impose or censure any religious belief or conviction.69 Directly supportive of the Special Rapporteur’s opinion on “sects” and other religious minorities is, of course, the Comment by the Human Rights Committee on Article 18 of the ICCPR, quoted above.70 In expressing its concern over “any tendency to discriminate against any religion or belief for any reasons,” the Committee suggests as a special danger that groups will be treated with prejudice because “they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community.” The implication is that under conditions of nationalism, which, as we saw above, naturally cater to majority beliefs and ideals, governments must go to extra lengths to guarantee freedom and equality for religious minorities. Recent efforts on the part of the French and German governments are not particularly encouraging in this regard.

b. administrative discrimination/ repression This form of minority mistreatment consists of the selective use of governmental administrative mechanisms, especially in adopting, applying, or enforcing unfair laws and policies. A notorious example of administrative discrimination is religious registration, which, though not in itself a violation of belief-related rights, is regularly turned against religious minorities, particularly of the beliefgroup sort. “When governments require registration for religious communities, they create the opportunity for arbitrary and capricious abridgement of religious liberty, both at the national and local levels . . . [Accordingly,] religious liberty becomes a privilege granted by the State, whenever the State deems appropriate.”71 In a word, registration readily turns into a practice of unfair privileging of favored religions or beliefs that are often identified with the national faith. The practice can have the most damaging effects on minorities.

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There are many examples, of which the 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Associations is particularly notable. That law draws a distinction between “religious organizations” and “religious groups” based on a fifteen-year residence requirement. It extends to the former and denies to the latter the privilege of acquiring juridical personality, of receiving direct financial benefits from the state, and of being entitled to own real property and commercial enterprises, as well as to operate religious, educational, cultural, and social institutions and charitable activities, and to receive and disseminate religious literature. The law strongly represents a reversion to state control of religion characteristic of earlier periods of Russian history.72 It does nothing to restrain and rather helps to encourage “efforts to elevate the Russian Orthodox Church as a state symbol, [as well as] propaganda campaigns blaming Jews and other minorities for Russia’s problems, urging the expulsion of foreign religious workers as spies and propagators, castigation of minority faiths (including Catholic, Baptist, Pentecostal, and non-traditional ‘sects’) as ‘not Russian.’ ”73 Another example is a recent Austrian law on state-recognized religion, adopted in December 1997. Recognition, which applies at present to thirteen religious organizations, extends the status of legal personality together with numerous special rights and privileges, such as exemption from property taxes, entitlement to state-collected church taxes, the right to engage in religious education, and immunity from securing work or residence permits for foreign religious workers. Religious minorities not recognized according to this law must apply or reapply and then endure a ten to twenty year probationary period while they are evaluated by the Ministry of Education and Culture in regard to whether they employ “pseudo-psychotherapeutic methods,” and whether they “show a positive attitude toward the democratic faith.” The law’s constitutionality is being challenged, but beyond that, the U.S. State Department warns that a “government initiative to protect citizens from dangerous cults or sects could lead to [further] discrimination against . . . groups not among the . . . officially recognized religious organizations, including Christian groups.”74 According to U.S. State Department reports and the Annual Report of the International Helsinki Federation for Human Rights, other examples of seriously discriminatory registration laws also exist in Armenia, Latvia, Moldova, Romania, Tajikistan, and Ukraine,75 among others. Another area of concern in respect to administrative discrimination is the subject of conscientious objection. The Human Rights Committee has ruled that a right to conscientious objection can be inferred from Article 18 of the ICCPR, “inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief,”76 and there appears to be a general trend in favor of recognizing such a right. On the other hand, in certain countries, like Bulgaria, Cuba, Egypt,

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Greece, Sudan, and Turkey, the right is denied, often to the serious disadvantage of groups like Jehovah’s Witnesses and Seventh-Day Adventists.77 Administrative repression, or harsher, though still discretionary, forms of state mistreatment of minorities, is clearly found, for example, in Bulgaria. The most serious cause for concern was the open targeting and harassment of small non-Orthodox religious groups labeled as “sects”—a total of 45 . . . . After they were refused juridic person status or their status was revoked . . . officials directed a substantial amount of effort toward ‘uncovering’ their ‘unlawful’ activities.78 In a number of cases, members of non-Orthodox religious communities such as Jehovah’s Witnesses, Word of Life, the Church of Jesus Christ of Latter-Day Saints (the Mormons) and the Unification Church have been subjected to physical violence and illegal searches and confiscations. A massive media campaign was organized in April 1997 [against] several recognized Protestant churches. They were accused of proselytism and undermining the national identity of Bulgarians. Patriarch Maxim of the Bulgarian Orthodox Church called the evangelicals ‘traitors of faith and nation.’79 The practices of the Chinese government represent a second example of a policy of administrative repression against certain religious groups. While reducing its reliance on arrests and detention, the People’s Republic of China “is enforcing requirements on registration more strictly than ever before.”80 The government has narrowed its criteria for distinguishing “authentic” religious groups—Buddhism, Taoism, Islam, and officially acceptable versions of Roman Catholicism and Protestantism—from unofficial religion, which possesses no claim to protection, such as “sects,” “cults” and “feudal superstition,” including popular Chinese religion. Human rights monitors describe an extensive, if selective and fluctuating, crackdown on unofficial religious groups by means of “fines, seizure of property, razing of “illegal” religious structures, forcible dispersal of religious gatherings, and occasionally, short term detention.”81 The UN Special Rapporteur has called, among other things, for ending oppressive surveillance, ceasing “the practice of imposing administrative or criminal punishments against those who choose to worship outside the confines of government-approved mosques, monasteries, churches, temples, and meeting points,” and “abolishing the registration process in its current form so that it does not act as a tool to restrict peaceful religious practices.”82 The laws and policies of the Greek government comprise a final example of administrative repression. The Greek constitution establishes the Greek Ortho-

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dox Church as the “prevailing religion,” ensuring constitutional protection of the text of the Bible, and specifying that only a member of the Orthodox Church may be elected president. Only the Greek Orthodox Church and the Jewish community enjoy the status of juridical personality. Non-Orthodox religious minorities must be recognized as a “known religion” before they can obtain a “house of prayer” permit necessary for holding services. However, there exists no official mechanism for obtaining such a status, and decisions are made with considerable administrative arbitrariness. Moreover, there exists an aggressive governmental policy of harassment and arrest against groups like the Jehovah’s Witnesses, who have been repeatedly indicted for disobeying laws against proselytism. The European Court of Human Rights has on several occasions ruled in favor of the Jehovah’s Witnesses, and has severely criticized the Greek government for “allowing far-reaching interference by the political, administrative and ecclesiastical authorities with the exercise of religious freedom.” The Court has added that the state has imposed laws that discriminate against the non-Orthodox, and there is “a clear tendency on the part of the administrative and ecclesiastical authorities to use these provisions to restrict the activities of faiths outside the Orthodox Church.”83

c. comprehensive discrimination/ repression The difference between this kind of mistreatment and the preceding kind is a matter of scale and scope. Here we have in mind a wholesale state effort by all necessary means to dominate a given minority, which may be either an ethnoreligious or a belief group. Iran and probably Saudi Arabia are examples, though we shall briefly examine China and Sudan in this context. Whereas the religious policies of the Chinese government we discussed in the previous section applied essentially to belief groups, the policies toward the Tibetan Buddhists and the Uighur Muslims of Xinjiang Province concern ethno-religious groups. Accordingly, these policies share a common premise: preserve (by all necessary means) the unity of China against the threats of ethnic separatism represented by the Tibetans and the Uighurs. Both minorities are accused (with some accuracy) of being “splittists.” The government justifies its brutal policies of religious and cultural repression in both cases as required for defending the integrity of China. Since Buddhism and Islam are, respectively, so intertwined with agitation for political independence, tolerating greater religious freedom simply strengthens insurgency. However, such an argument rests upon a glaring oversight, as is particularly clear from the Tibet case. Current conditions in Tibet, with respect to religious, cultural, political, and economic matters, “are still deeply influenced

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by the patterns of anti-Tibetan intolerance and discrimination that are the legacy of some forty years of Chinese rule.” The evidence of such cultural hostility and disparagement is still apparent in the government’s Tibetan policies, which through immigration and education, together with political and economic control, have the unmistakable effect of destroying Tibetan culture and religion.84 However, such a policy completely contradicts fundamental human rights standards. It is never allowable, according to the requirements of belief-based rights, to abolish a minority culture in the name of political integrity or of anything else. Just as adjustments may have to be made to honor claims of sovereignty, so equivalent adjustments will have to be made to honor the rights of minorities. That, it seems clear, is what is not taking place at present either in Tibet or in Xinjiang Province. In both cases, political interests are assumed by the government to override completely the right of members of “ethnic, religious or linguistic minorities” to profess and practice their religion or belief, or to enjoy their culture, and to use their language.85 The recent policy by the Chinese government of banning Falun Gong, the fast-growing belief group committed to meditation and spiritual improvement, ought to be considered as an example of “comprehensive discrimination/ repression.” The government considers the group to be an “evil cult” that fosters superstition, and has engaged in an aggressive, wholesale effort to suppress and eventually eliminate the group.86 There can be little doubt that the presence here of anti-cult language to vilify Falun Gong is part of a wider anti-cult movement we called attention to earlier in Western, Eastern, and Central Europe, as well as elsewhere. The policies of the government of Sudan also represent an example of comprehensive discrimination/repression. It is directed by a religious elite that gained control by means of a coup d’e´tat, and it has from the beginning sought to establish a regime which “treats Islam as the de facto state religion.”87 To date, the laws and policies of the government are highly discriminatory toward religious and other minorities. In the words of one State Department report, the government continues a policy of imposing “Islamization and Arabization”—including “forced Islamization”—on non-Muslims throughout the country. “Authorities continued to restrict the activities of Christians, followers of traditional African beliefs, and other non-Muslims, and there continued to be reports of harassment and arrest for religious beliefs and activities.”88 In summary: The coming of the present government to power has accelerated and intensified a process whereby the ethnic, cultural and the ideological have come into violent collision. The regime holds to an ideology based on its interpretation of Islam and views itself as a missionary regime en-

Religious Minorities and Religious Freedom 51

trusted with the message of spreading Islam in Sudan, the rest of Africa and beyond.89

VII. C ONC LUSION Our general survey of the condition of religious minorities around the world has confirmed the point with which we opened, that like all minority peoples, religious minorities seem to have become a special target of gross and systematic human rights violations at the present time. The violations are not all the same; they vary in intensity and severity, and they are responses to many kinds of insecurity and apprehension, including economic and social dislocation. All the same, many of them appear to be tied the world over to a desperate need to protect official ideologies for the sake of political stability and coherence. Religious minorities, of both the belief-group and the ethno-religious kind, are taken again and again to represent a mortal threat to that stability and coherence, and are, as a consequence, subjected to various forms of prejudice, discrimination, and repression. These conditions make all the more urgent the promotion and implementation of human rights, including due consideration for belief-related rights. While protecting the rights of religion and belief is not the only problem to be solved, such protection is a useful index of the health and security of a given government. It is clear from the evidence that hypersensitivity to the dangers presented by religious minorities easily turns to obsession, which itself can undermine stability and coherence. This is not to say that all religious minorities are harmless, and represent no genuine cause for worry, or that there are no good reasons to be vigilant. But it is to say that existing human rights norms, and evolving jurisprudence, despite abiding perplexities and uncertainties, which must still be worked out, do provide the right sort of general guidance in regard to the treatment of religious minorities. One paramount conclusion in regard to religious minorities and religious freedom is the importance of the international character of human rights. In areas as sensitive as these, nations must increasingly interact, share experience, and, where possible, engage in multilateral efforts. There are some encouraging, if still minimal, examples of that, in the Organization of Security and Cooperation in Europe, and other regional organizations, like the European Union, as well as in the United Nations. All such efforts, of course, need strengthening and expanding. In contrast, unilateral efforts at the enforcement of belief-related rights, and other human rights, while sometimes helpful, and at times even unavoidable, should be designed and evaluated very carefully. This is true, for example, of

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something like the International Religious Freedom Act, adopted by the United States Congress in 1998 as a means of restraining violations of religious freedom, usually against religious minorities around the world. It will be interesting to see whether this law, which requires the President of the United States to respond proportionately to mistreatment of religious groups, will ease the problems or make them worse. On the one hand, there is merit in calling attention to violations of religious freedom, which a bill like this one does. On the other hand, the law has heightened perceptions of the United States as consumed by single issues, and inclined to act more on its own than collaboratively.90 Time will tell.

endnotes 1. Ted Robert Gurr and Associates, Minorities at Risk: A Global View of Ethnopolitical Conflicts 314 (Washington DC: USIP Press, 1993). 2. The standard caveat about “ideal types” applies here too. Because of their very abstraction (or “ideal” quality) ideal types facilitate analysis by isolating and grouping salient features. However, for the same reason, they can also distort the complexity of real-world experience. Given time, some belief groups take on ethno-religious characteristics, just as certain ethno-religious movements come, under some conditions, to accentuate the importance of explicitly religious commitment, after the fashion of belief groups. Nevertheless, each type has characteristic tendencies that are important for analytical, as well as practical, purposes, as we shall see. For a discussion of ethnoreligious groups and their role in nationalist conflicts, see David Little, Belief, Ethnicity, and Nationalism, 1 Nationalism and Ethnic Pol. 2, 2 (1995) and Sri Lanka: The Invention of Enmity (1994). 3. See David Little, Studying ‘Religious Human Rights’: Methodological Foundations in John Witte, Jr. and Johan D. van der Vyver (eds.), Religious Human Rights in Global Perspective: Legal Perspectives (The Hague: Martinus Nijhoff, 1996). 4. See David Little, above n. 3. The protections of “freedom of religion or belief ” in the human rights instruments are intended to protect nonreligious and even antireligious beliefs, so long as they are conscientious or fundamental. “Religious human rights” is a misleading way of describing these rights by appearing to protect only “religious” belief. 5. Universal Declaration of Human Rights (UDHR), Art. 2, 18, International Covenant on Civil and Political Rights (ICCPR), Art. 18, and the UN Declaration on the Elimination of All Forms of Intolerance or Discrimination Based on Religion or Belief (DEID), Art. 1. 6. UDHR, Art. 2, 7; ICCPR, Art. 2.1, 26; DEID, Art. 2. 7. ICCPR, Art. 27. 8. ICCPR, Art. 20. While the third guarantee raises the question of “group” or “collective” rights applying to minorities, one of the important formulations of this protection—Art. 20 of the ICCPR—is drafted so as to apply only to the rights of

Religious Minorities and Religious Freedom 53 individual members of minorities. This has become an increasingly controversial subject (see below). 9. Especially Art. 30–40. 10. DEID, Art. 1.3; cf. ICCPR, Art. 18.3. 11. General Comment No. 22 [ICCPR Art. 18] Human Rights Committee, Fortyeighth Session (July 20, 1993) sec. 8, in Kevin Boyle and Juliet Sheen (eds.), Freedom of Religion and Belief: A World Report xxii (London and New York: Routledge, 1997). See also Tad Stahnke and J. Paul Martin (eds.), Religion and Human Rights: Basic Documents 92–5 (New York: Columbia University Press, 1998); Bahiyyah G. Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Protection 258–59, 294–302 (The Hague: Martinus Nijhoff Publishers, 1996). 12. Boyle and Sheen, above n. 11, xx-xxi. Further clarification has been supplied by the European Court of Human Rights. In the Case of Silver and Others, 61 Eur. Ct.H.R. (ser.A) 37–8 (1983), the Court required that the limitations clauses be applied in keeping with the principles of necessity and proportionality. Cited in Cole Durham, Jr., Perspectives on Religious Liberty: A Comparative Framework, in Witte and van der Vyver, above n. 3, 33ff. See also Tahzib, above n. 11, 334–43. 13. Boyle and Sheen, above n. 11, 29. See further Gunn, chapter 6 in this volue, at n. 45 and accompanying text. 14. Art. 4(a). 15. CERD originally might have addressed religious as well as racial hatred and discrimination, though finally it did not, even though racial and religious intolerance are often deeply interwoven, as, for example, in Anti-Semitism. Religious hatred has not been at the center of the work of the Committee for the Elimination of Racial Discrimination, “although [it is] likely to become increasingly important.” Kevin Boyle, Religious Intolerance and the Incitement of Hatred in Sandra Coliver (ed.), Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination 63 (Essex: Human Rights Center, University of Essex, 1992). 16. Lemon v. U.K., Decision of the Commission of Human Rights, May 7, 1982, reported at 5 EHRR 123, as discussed by Sheldon Leader, Blasphemy and Human Rights, 46 Mod. L. Rev 338–45, 339 (1983). 17. See David Little, Tolerance, Equal Freedom, and Peace: A Human Rights Approach, in W. Lawson Taitte (ed.), The Essence of Living in a Free Society 151–90 (Austin: University of Texas Press, 1997) for an elaboration of these problems. 18. Boyle and Sheen, above n. 11, 8. 19. See Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent 269–80 (Philadelphia: University of Pennsylvania Press, 1999). 20. Art. 1 of the ICCPR (and similarly in the ICESCR) does speak of a right to selfdetermination “for all peoples,” though that is the one exception in the formative documents. That right has been taken to apply exclusively to colonized peoples. 21. Natan Lerner, Religion, Beliefs, and International Human Rights 35 (Maryknoll, NY: Orbis Books, 1999). 22. Julian Burger, Indigenous Peoples and the United Nations in Cynthia Price

54 d a vi d little Cohen (ed.), The Human Rights of Indigenous Peoples 10 (Ardsley, NY: Transnational Publishers, 1998). 23. Thomas v. Norris [1992] 2 CNLR 139, cited in Leslie Green, Internal Minorities and their Rights in Will Kymlicka (ed.), The Rights of Minority Cultures 264– 5 (New York: Oxford University Press, 1995). 24. See Symposium, Soul Wars: The Problem of Proselytism in Russia, 12 Emory Int. L. Rev. 1 (1998); John Witte, Jr. and Michael Bordeaux (eds.), Proselytism and Orthodoxy in Russia (New York: Maryknoll, 1999); and Lerner, above n. 21, 80–118. 25. 1997 Russian Law “On Freedom of Conscience and on Religious Associations,” Federal Law No. 125–82 (September 26, 1997). 26. Boyle and Sheen, above n. 11, 334. 27. See Kokkinakis v. Greece, Eur. Court H. R., Ser. A, Vol. 260-A, para. 31 (1993). See also Danchin and Forman, chapter 5 of this volume, for a discussion of Kokkinakis. 28. Lerner, above n. 21, 117–18. 29. See David Little, Sri Lanka: The Invention of Enmity (1994) for an analysis of one example. 30. The Greek root of “ethnic” or “ethnicity” means “people,” “race,” or “tribe,” but in two quite distinct ways. According to the Oxford English, Webster’s New International, and Funk & Wagnall’s dictionaries, one meaning pertains to a “race,” “stock,” or “breed,” understood as “a group of persons . . . connected by common descent or origin” or as “a group of genetically closely related individuals.” The central reference here is to group membership by heredity or genealogy. The second meaning pertains to “peoples neither Jewish nor Christian; gentile, heathen, pagan,” peoples, that is, who are considered from the point of view of a favored group (or groups) to be decidedly beyond the spiritual pale. Accordingly, ethnic membership involves not only whatever “objective” markers of common descent might be selected (such as lineage, physical appearance, customs, language, etc.), but also status considerations, or matters of “honor and dignity,” in Max Weber’s words. These readily generate, as Weber points out, strong feelings of attraction to one’s own group and of superiority or repulsion toward outsiders. Weber goes on: “Behind all ethnic divisions there stands quite naturally some idea of a ‘chosen people’ . . .” Max Weber, Wirtschaft und Gesellschaft 239 (1972). (My translation). Ethnicity, that is, serves not only to differentiate and classify peoples, but also to evaluate them comparatively. So it is that ethnic groups incline to elevate their status above their neighbors by invoking a special sacred warrant. In short, religiously-shaded “ethnic tension” appears to be latent in the very process of ethnic classification. 31. Boyle and Sheen, above n. 11, 285. 32. For recent difficulties in Germany regarding the Jehovah’s Witnesses and the Church of Scientology, see ibid. 311–14. 33. Ibid. 424–25. 34. Ibid. 454–57. 35. Ibid. 183–84; 186–8; cf. Human Rights Watch/Asia, China: State Control of Religion, 39–50 (1997). 36. Boyle and Sheen, above n. 11, 161–62; 105.

Religious Minorities and Religious Freedom 55 37. Ibid. 246–48; 73–78. 38. See David Little, above n. 3, 45–77, for further exploration of these matters. 39. See Paul Mojzes, Religion and the War in Bosnia (Atlanta: Scholars Press, 1998), and Michael A. Sells, The Bridge Betrayed: Religion and Genocide in Bosnia (Berkeley: University of California Press, 1996). 40. See Francis Deng, War of Visions (Washington: The Brookings Institute, 1994). 41. See David Little and Scott W. Hibbard, Sino-Tibetan Coexistence: Creating Space for Self-Direction (1994). 42. See David Little, above n. 3, 61ff. for further elaboration. Cf. David Little, Rethinking Human Rights: A Review Essay on Religion, Relativism, and Other Matters, 27 Journal of Religious Ethics (1999) esp. 169ff. 43. “Religious fundamentalism” is a term that has been subjected to considerable scholarly dispute. It is criticized for being too pejorative, and too conditioned by the early-twentieth-century American Protestant context in which it originated. The term is problematic for those and other reasons, yet it accurately refers to a common global religious reaction to the secularizing and morally permissive tendencies associated with “modernity.” That is the sense in which Thurow, with some justification, uses it. 44. Lester Thurow, The Future of Capitalism: How Today’s Economic Forces Shape Tomorrow’s World 232 (New York: William Morrow and Company, Inc., 1997). 45. Ibid. 243. 46. There are further complications, as well. According to Eileen Barker, some of those people attracted to “new religious movements” in Central and Eastern Europe join up because they “wish to espouse the very rewards of capitalism, consumerism and materialism from which Western membership wanted to escape”: see Barker, chapter 2 in this volume. 47. Barker, above n. 46. 48. Governments are not the only perpetrators of “intolerance and discrimination based on religion or belief.” Nongovernmental religious and other actors also play a role, particularly multinational actors, and this subject certainly must be looked into. We limit our reflections here to the activities of governments for three reasons: 1) space constraints; 2) governments are ultimately responsible, under existing international law, for human rights enforcement, and 3) governmental activity incontestably constitutes a major source of religious minority abuse. 49. It is sometimes suggested that discrimination is not a particularly serious form of “religious persecution.” There is much evidence in what follows that such a view is mistaken. Certain forms of discrimination, particularly those affecting the right to livelihood, obviously have a devastating effect upon people’s lives. 50. See Carolyn Wah, chapter 11 in this volume. 51. See the debate on “sects in Europe” in the Report of the Committee on Legal Affairs and Human Rights of the Council of Europe (September 26, 1997). The debate illustrates both the passion, if not hysteria, about the question in Western Europe, and the serious impediments to defining “sect” precisely and objectively enough so as not to invite arbitrary and prejudicial treatment of groups labeled in that way.

56 d a vi d little 52. Abdelfattah Amor, Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief: Visit to Germany, Special Rapporteur, in accordance with Commission on Human Rights Res. 1996/23, E/CN. 4/1998/6/Add.2; December 22, 1997, 20. 53. Massimo Introvigne, “Religious Liberty in Western Europe,” testimony before the Commission on Security and Cooperation in Europe, July 30, 1998, Washington, DC, 6. 54. Massimo Introvigne, The 2000 Report of the French Mission to Fight Cults (Censur), http://www.hrwf.net, Human Rights without Frontiers, Press and Information Service, “Religious Intolerance and Discrimination” (February 10, 2000). 55. Zwischenbericht der Enquete-Kommission: Sogenannte Sekten und Psychogruppen 24 (1997). 56. Ibid. (1998). 57. Enquete Commission Final Report, 21. My translation. 58. Ibid. 85ff. 59. See Final Report, 20ff. and Interim Report, 139ff. 60. Interim Report, 121. 61. See ibid. 128ff. 62. Final Report, 189 (this translation and the ones that follow are mine). 63. Ibid. 82. 64. Along with the milder criticisms of the UN Special Rapporteur (noted at n. 52 above), seven distinguished academics gained considerable attention by attacking the inquiry commission in the spring of 1998, charging that the commission is unduly influenced by representatives of the established churches, and is thus highly biased and unreliable in its investigation. Gernot Facius, Warnung von den Sektenjagern (Warning against Sect-Hunters), Die Welt Online (May 28, 1998) at http:// www.welt.de/daten/1998/05/28/0528ku73507.htx?print ⳱ 1 (accessed on January 27, 2001). 65. Final Report, 90. 66. It is never made clear why “only the problematic and dangerous potential [Gefa¨hrdungspotentiale]” of these groups is sketched in the report (Final Report, 90). If the sects and psychological groups are not dangerous after all, and may even make some contribution, that is surely news, and it needs to be reported. 67. Final Report, 88–91 68. Ibid. 132–33. 69. Above n. 52, paras 94, 99. 70. See n. 12, above. 71. Karen S. Lord, What Does Religious Liberty in the OSCE Mean in Practice?, OSCE Bulletin 7 (1997). 72. Jeremy T. Gunn, Caesar’s Sword: The 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Associations, 12 Emory Int. L. Rev. 98–99 (1998). Most of the Articles in this issue are devoted to the new Russian law, and should be consulted for a full understanding of the nature and implications of the law. 73. Lauren B. Homer, Comments on Russia, written testimony before the State Department Advisory Committee on Religious Freedom Abroad (Sept. 16, 1998), 4–5. Cf. W. Cole Durham, Jr. and Lauren B. Homer, Federal and Provincial Religious

Religious Minorities and Religious Freedom 57 Freedom Laws in Russia: A Struggle For and Against Federalism and the Rule of Law, 12 Emory Int. L. Rev. 308–12 (1998). 74. United States Policies in Support of Religious Freedom: Focus on Christians, Report Consistent with the Omnibus Consolidated Appropriations Act, Fiscal Year 1997; House Report 3610 (July 1997), 17. Cf. Country Reports on Human Rights Practices for 1997, U.S. Department of State (March 1998), 964–65. 75. See respective entries in United States Policies in Support of Religions Freedom or Country Reports on Human Rights Practices and/or in Annual Report 1997, International Helsinki Federation for Human Rights. See further Christopher J. Miner, Losing My Religion: Austria’s New Religion Law in Light of International and European Standards of Religious Freedom, B.Y. L. Rev. 607 (1998). 76. General Comment No. 22, above n. 11, xxiii. Cf. Tahzib, above n. 11, 348–63 for an illuminating discussion of the Human Rights Committee Comment on the implications of Art. 18 for protecting the right of conscientious objection. 77. Boyle and Sheen, above n. 11, 11, and entries, respectively, for the above countries. Cf. Annual Report 1997, International Helsinki Federation for Human Rights for references to problems of discrimination in respect to conscientious objection in countries such as Kyrgyzstan, Romania, Russia, Spain, and the (former) Federation of Yugoslavia. 78. Annual Report 1997, International Helsinki Federation for Human Rights. Cf. Krassimir Kanev, Law and Politics toward the Muslims in Bulgaria, included in chapter 9 of this volume. 79. OSCE Implementation Meeting on Human Dimension Issues, Report by International Helsinki Federation for Human Rights (Warsaw, 1970), 1. 80. China: State Control of Religion, Human Rights Watch/ Asia (Washington, 1997) 2. 81. Ibid. 1. 82. The report on China by the UN Special Rapporteur, including his recommendations, is cited above n. 52, 4–6. 83. Cited in Annual Report 1997, IHF, 124. 84. See Hibbard and Little, above n. 41. 85. See above n. 7. 86. “The government has formally charged more than 300 people in connection with Falun Gong, some of whom have already been tried and sentenced to prison terms of more than 10 years. Human rights advocates estimate that thousands more have been placed without trial in labor camps and detention centers.” China/Falun Gong, Human Rights Without Frontiers, http://www.hrwf.net, January 27, 2000. 87. United States Policies in Support of Religious Freedom: Focus on Christians (Report Consistent with the Omnibus Consolidated Appropriations Act, Fiscal Year of 1997; House Report 3610, July 1997), entry on Sudan. 88. U.S. State Department, Sudan Country Report on Human Rights Practices for 1997 (Released on the Internet by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997) 2, 8. 89. Boyle and Sheen, above n. 11, 72. 90. For a discussion of the U.S. International Religious Freedom Act of 1998 in the context of the tension between unilateralism and multilateralism in protecting freedom of religion and belief, see Danchin chapter 4 in this volume at 164ff.

Chapter 2 t h e p r ot e ct i on of m i n o r i t y r e l i g i o n s i n e a s t e r n eu r o p e Eileen Barker

Few of us are likely ever to forget the faces of East Berliners rushing through the gaps that they made in the Berlin Wall in the winter of 1989. We were watching history being made. The people, tired of the tyrannies of socialism, were making a gesture which symbolized far more than crossing a geographical boundary that had been erected to contain them within the socialist regime. They were crossing social, political, and economic boundaries into a whole new world of possibilities. They were breaking free as well from an atheistic jurisdiction that had suppressed the manifestation of religion. But while the East Berliners were euphoric that they at last had the opportunity to enter the West—to visit relatives, to look at the shops and glimpse the materialistic rewards of capitalism and, above all, to realize the promise of freedom from fear and oppression, there were also those who waited, some of them literally as the Wall came tumbling down, to rush in the opposite direction—into the East—with their material and spiritual wares.

I . THE NEW RELIGIONS FROM THE WEST

a. the opening of new opportunities By 1989, there were several hundred, possibly as many as two or three thousand, distinguishable new religions in the West—if the term “new religions” is defined

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widely enough to include new age and human potential groups and new manifestations within some of the mainstream religions. But, despite this large number of movements, the number of fully committed members was somewhat less impressive. Several movements had only a score or so core participants, and even the better-known movements such as the Unification Church (the “Moonies”), The Family (the erstwhile Children of God), ISKCON (the International Society for Krishna Consciousness), and the Church of Scientology had only a few hundred core members in any country in Western Europe or even North America.1 One reason for this relative paucity of membership was that, although several thousands might have joined a new religion for a short period, the majority had become disillusioned or decided that they no longer wanted what the movement could offer them, and had simply left.2 Moreover, although membership numbers were being augmented by the birth of the second and, in some cases, even a third generation, the pool of potential converts seemed to be drying up. Expose´s and attacks by the anticult movement and the media, a general inclination to lump every new religion into an ill-defined category of “destructive cults” and rapidly changing economic and social circumstances had all contributed to a general cessation in growth, if not to an overall decline in numbers. The opening up of an as-yetuntapped arena with millions of religiously and spiritually starved persons, who had been left in an ideological vacuum by the collapse of Marxism, was an opportunity not to be missed. Indeed, overcoming communism and spreading their Truths to those who were separated from the West by the atheistic iron curtain of socialism had long been a goal of many of the more evangelically oriented religions, whether they were mainstream Protestants from North America or the new religious movements that had emerged in the West or arrived there from Asia. Not that these religions had been entirely quiescent during the communist period. It was well known that Baptists and other Evangelical organizations were systematically smuggling Bibles into the Soviet Union. Less well-known, perhaps, was the fact that the Unification Church’s Scripture, the Divine Principle, declares that if its “Godism” were unable to overcome the Satanic ideology of Marxism through ideological suasion, then the godly, democratic West would have to resort to a Third World War.3 Furthermore, many of the more “multi-national” of the new religions have long had the odd member in Central and Eastern Europe and, indeed, in areas of the Soviet Union; but, for obvious reasons, they were, for the most part, working underground, risking deportation and/or imprisonment. Several enjoyed the hospitality of Soviet jails, and some Krishna devotees, like many devout Orthodox and Catholic priests, had died while imprisoned.4 Just as earlier generations of Christians and Muslims, in the belief that the One True Faith had to be universalized, have resorted to the conquest of new

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regions around the world, so now religions old and new were developing ideological concepts of globalization and multinational structures within which they could spread their Truth. While in the years leading up to 1989 several of the movements were predicting that communism was floundering, once the dramatic events associated with the fall of the Wall occurred, many declared that it was they who were responsible for its downfall—one had only to ask a Unificationist, a Krishna devotee, a Transcendental Meditator, a Sahaja Yoga or a Scientologist whether they believed their movement had any role to play in the destruction of the Wall and they would have expressed surprise that you did not realize that it had played the role. Had it not been for their leader’s intervention, their prayers, their chanting, their meditation, their demonstrations, their secret negotiation—or God’s pleasure at their endeavors—the Wall would still be there. The euphoria was intense. But it was not long before the honeymoon was over. As the 1990s progressed, economic depression, rising unemployment, anomie, and alienation soon set in. The very freedoms that had been longed for turned out to be all too elusive or but empty rhetoric—the desire for “freedom for all” turned into the quest for “freedom for me,” but in practice seemed to result merely in “freedom for them.” Disillusionment grew as the free markets in economics, politics, and religion enabled a few (the omnipotent, omnipresent Mafia) to become rich and powerful, while others (the vast majority) became far poorer, lacking even the security and opportunities they had enjoyed under socialism. How did the new religions fit into this depressing situation?

b. the diversity There have, of course, been new religions throughout history: Buddhism, Christianity, and Islam were all new religions at one time. Perhaps the first and most important point that should be made about the new religious movements is that one cannot generalize about them. Furthermore, the present wave of new religions in Europe, unlike earlier waves, is not restricted to the Judeo-Christian tradition. The movements draw not only on Buddhist, Hindu, Muslim, Shinto, and Pagan sources, but also on the psychoanalytic ideas of Freud and Jung, on political ideologies, on science fiction, and UFOlogy. Some claim to be returning to the pristine origins of their tradition: Krishna devotees trace their lineage of Vaishnava Hinduism through an unbroken chain of spiritual masters, most notably the sixteenth-century monk, Lord Chaitanya, to Lord Krishna himself; members of Soka Gakkai chant the mantra revealed by the thirteenthcentury Buddhist monk, Nichiren Daishonin; members of The Family explain that they attempt to live their lives according to the precepts laid down in the New Testament Acts of the Apostles. Others, such as the Aetherius Society, the

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Rae¨lians, and the Church of Scientology, claim to have revealed radically new truths about other worlds and Beings who have been, heretofore, unknown to the human race. Yet others, such as Damanhur or Aumism,5 present syncretistic or eclectic combinations of a variety of ideas and practices from the myriad of different traditions available in the contemporary supermarket of religion and spirituality. Some movements, such as the Unification Church, offer a systematic theology addressing most of the basic issues that have, traditionally, been addressed by mainstream Christianity (an eschatology, a theodicy, a soteriology, a Christology, an interpretation of history, and an account of creation). Other movements seem to have no obviously coherent system of beliefs, but a motley collection of ideas, which may contradict each other and change at the whim of a charismatic leader such as Bhagwan Rajneesh or, as he later became known, Osho. Some beliefs are written into a theological treatise; some are captured on cassettes or videos; others are passed on by word of mouth. The new religions differ also in the wide variety of rituals and practices in which they engage. These include formal liturgy, chanting, meditation, prayer, a vast range of types of yoga, song, fasting, silence, channeling, trance, and other altered states of consciousness, which may be induced by hallucinogenic drugs, the drums of a shaman, or fervent dance. Some members of new religions live with each other in rural or urban communes; others live in semi-detached houses or apartment blocks by themselves or with their immediate families. Some members work full time for their organization; others work on a parttime voluntary basis; yet others work only in the “outside world.” Attitudes toward sex range from the group “love-in” of the Rajneeshee neo-sannyasin and the “flirty fishing” of the erstwhile “hookers for Jesus” in the Children of God, to a celebration of celibacy by the Brahma Kumaris, and the restriction of sexual intercourse to the procreation of children within marriage for Krishna devotees. Other movements, such as Scientology, have no particular teaching regarding sexual practices. Attitudes toward women, children, and socialization vary enormously, as do rules about food, alcohol, tobacco, and drugs. Some new religions are rich; some are poor; some have rich leaders and poor followers; the rich founder of the Brahma Kumaris gave his wealth to the women whom he placed in charge of the movement. Money may be acquired by asking for donations or by selling goods in public places, by tithing, by members handing over their property, by running businesses, by charging followers or “clients” for courses, and/or by collecting social security and other state pensions. Members of new religions may be young or old, black or white, or from any ethnic group; they may be well or poorly educated, rich or poor; and from a religious, agnostic, or atheistic background. Leaders may be seen as Messiahs, gods, teachers, prophets, gurus, channelers, or friends. The organization of the movement may be totalitarian, authoritarian, theocratic, bu-

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reaucratic, and/or democratic; it may be more or less open or secretive; it may have any number of levels of membership; it may be small and confined to one geographical location, or it may be a multi-national organization spread throughout the world. The effect of the movement on individual members and on society as a whole may be harmful or it may be benign. But there are differences not only between new religions, but also within the movements themselves. It should be obvious enough, but is surprisingly often forgotten, that a new religion in California in the late 1960s is unlikely to exhibit the same characteristics as the same movement in a post-communist country in the early 2000s. There will, of course, be some continuity with the past, but for people in Central and Eastern Europe to turn to media stories of the late 1960s or early 1970s about “Moonies,” Scientologists, Krishna devotees or the Children of God in San Francisco, London, Paris, or Sydney in order to understand what the movements are like in Budapest, Sofia, Kiev, or Krako´w at the turn of the millenium, is as silly as drawing merely on stories selected from their childhood or even their romantic adolescence if one wants to understand what a prosperous businessman, a successful politician, a revered bishop, a feared Mafioso, or a doting grandmother is like today. There will be some recognizable similarities, but there will also be highly significant differences. They are likely to have adapted to the changing circumstances of the social situations in which they have found themselves, and it is probable that they will have matured, left behind, or radically transformed youthful enthusiasms and ideals, learned from past mistakes—and, perhaps, developed new follies or indiscretions. The analogy may be extended to distinguish three pertinent points.

c. characteristics of new religions First, adolescents share certain characteristics just because they are adolescents. Similarly, there are characteristics to be found in a significant number of new religions merely because they are new and because they are religious. Such characteristics have been described in detail elsewhere6 but, briefly stated, include the fact that, when first started, the movements are almost invariably small in number, and interaction (socialization and control) is generally carried out at a face-to-face level. The founder is frequently accorded a charismatic authority by his or her followers and, being unbound by either tradition or rules, may be highly unpredictable, changing direction at a moment’s notice. The membership itself, consisting as it does of first-generation converts, tends to be far more enthusiastic and committed than a membership born into a traditional religion. It is also likely to consist of an atypical representation of society; many of the new religions that appeared in the West around the 1960s appealed disproportionately to young, middle-class people (in late adolescence, their twen-

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ties, or early thirties) with excellent health, relatively little experience, and few dependants or other responsibilities. A further characteristic of new religions is that they tend to exhibit a greater clarity and decisiveness in their position than older religions, which have often had to accommodate to generations of changing members and circumstances. New religions tend, for example, to draw a relatively sharp theological or ideological distinction between Truth and Falsehood; a relatively sharp moral distinction between Good and Bad, Right and Wrong; and a relatively sharp social distinction between Us (the community of believers) and Them (all others, including, sometimes, members of one’s family who do not share the movement’s beliefs).7 Finally, throughout history, new religions have been viewed with suspicion and frequently discriminated against by the society to which they provide an alternative world-view and, sometimes, lifestyle.

d. temporal differences within a new religion Second, as adolescents grow up and shed the characteristics of adolescence, they are likely to become increasingly different from each other. Similarly, new religions become older religions and develop in ways that are increasingly different from each other. The changes that the characteristics outlined above are liable to undergo within a period of twenty years or so have also been described in more detail elsewhere.8 Here it might merely be pointed out that some movements grow and others fade away altogether. In the process, converts are liable to lose at least some of their initial enthusiasms as they themselves mature, while a whole new second generation of members may be born into the movement, demanding the allocation of such scarce resources as time and money and, in all likelihood, questioning and modifying some of the movement’s more salient tenets and practices.

e. temporal differences between new religions Third, as new religions are transformed into older religions, further waves of even newer religions appear on the scene.9 Post-communist societies now play host both to “old new” religions from the West, which are well into their secondgeneration membership, and to indigenous “new new” religions: The New Jerusalem in Romania, The Church of the Last Testament followers of Vissarion in Russia, and the White Brotherhood followers of Maria Devi Khrystos in Ukraine are all examples.10

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II. THE FOREIGN NEW RELIGIONS IN POST-C OMMU NIST SOCIETIES

a. the new hybrid Sociologically speaking, what is interesting about the “foreign” new religions in post-communist societies is that they are typical neither of the newest of the new religions (be they those that have originated there since the fall of the Wall, or those that appeared in the West in the 1960s and 1970s), nor yet of the movements as they are in the West today. They appear in Central and Eastern Europe as a special hybrid, exhibiting characteristics drawn from both first- and subsequent-generation movements. While recognizing the great variety between the movements, one can observe that the new religions which are foreign to post-communist societies have a membership that consists of native young converts and a leadership of more seasoned and experienced members who may have been in their movement for twenty or more years and who no longer exhibit the youthful enthusiasms they once displayed.11 There is not space here to go into detail about the difference that this combination makes, but a few points may be noted. The missionary leaders from the West will have learned some of the pitfalls of being a member of a minority religion—for example, they are more likely to encourage the native converts to keep in touch with their families, rather than cutting themselves off, as they themselves might have done some twenty years before. The distinction between members and nonmembers is unlikely to be as sharp as it had been in the movement’s early days. It is easier for students to continue studying and the employed to continue to work in outside jobs and to lead lives that are not as radically different from the rest of society as they might be in a “new” new religion. But insofar as the new members are converts, they, like converts to any religion (be it new or old),will appear to have undergone radical changes and to be far more enthusiastic about their new-found beliefs than those born into a religion. The foreign new religions will, almost by definition, be multinational and have their international headquarters several thousands of miles away. New converts are unlikely to know the founders personally—indeed several of the charismatic leaders who inspired the reverence of early followers are now dead, and their organizations have become increasingly “rationalized” and predictable.12 Communication from the top is not likely to be face-to-face; it may well be mediated (in English or some other western language) through electronic media. ISKCON has, for example, an extremely well-developed international network based on e-mail, which is thereby able to mobilize resources at almost a moment’s notice, alerting and informing not only its own membership but also nonmembers in the media, governments, and elsewhere about actions that

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might violate its interests, and possibly those of other religions.13 A related development that is not confined to post-communist societies, but that has emerged since the Wall came down and that is affecting the character of some new religions in Central and Eastern Europe, as elsewhere, is the use of private discussion groups on restricted-access internet sites by members who are disillusioned in some way with their religion and who exchange critical information that is not under the control of the movement’s leadership.14 The new religions in the West appealed, and to some extent still do appeal, disproportionately to young people who have not been either socially, economically, or politically disadvantaged, but who might claim that they have been spiritually oppressed. On the other hand, those in post-communist societies who are attracted by the movements can claim not only to have been brought up in a spiritual vacuum, but also to have suffered from relatively severe economic and perhaps social and political oppression. Consequently, one finds that many of those from Central and Eastern Europe who are attracted to the new religions wish to espouse the very rewards of capitalism—consumerism and materialism—from which the Western membership wanted to escape.

b. the new social environment The media and the anticult movements in the West had to start almost from scratch when the present wave of postwar new religions appeared on the scene.15 It was not long, however, before both had amassed a large stock of negative stories about new religions in the West, and these are passed with a missionary fervor (not dissimilar to that of some of the new religions themselves) to the media and anticult movements on the Eastern side of the Wall. But while the hostility that the new religions have experienced in the West has been largely, although not exclusively, due to their being new and their questioning the social and political status quo (the Vietnam war, bourgeois imperialism, and or materialistic rat-race), the hostility to the new religions in Central and Eastern Europe is more likely to be extended because, as I shall elaborate below, the movements are perceived as foreign, a threat to the security of the country, and in direct competition with the traditional, national religions. It is also important to note that the new religions in the West emerged in what might be termed a more or less secularizing pluralism.16 On crossing the Wall, however, they found themselves facing populations that had inherited a Marxist legacy. Here I refer not primarily to a legacy of Marxism—in fact, there were remarkably few who succumbed to the ideological socialization of communist times. Few would admit (except in public) that they believed in Marxism, and remarkably few knew much beyond the basic tenets of Marxist ideology—it has, indeed, been said with some truth that there could have been more Marxists in the West than in the Soviet Union.

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But the populations of communist states, like those brought up in any fundamentalist or sectarian religion, had been taught to believe that The Truth existed. They might not have accepted that The Truth was Marxism, but they were nonetheless inclined to believe that The Truth was waiting to be discovered. And, again like those brought up in fundamentalist or sectarian faiths, they had had inculcated into them from an early age that there were sharp and crucially significant distinctions to be drawn between “them” and “us.” The “them” might be the bourgeois, capitalist imperialists of the West, or they might be, and increasingly had become, members of their own state apparatus. Either way, “they” tended to be homogeneously synonymous with “bad” and “we” with “good.”

c. diversity and pluralism There were, and of course still are, enormous differences between the countries of Central and Eastern Europe. While Poland is almost entirely Catholic, the erstwhile Czechoslovakia has been home to Hussites, Lutheran Brethren, Jews, and numerous other small and not so small religious communities alongside its Catholic population. As already intimated, there were several evangelical religions and new religions, mainly (but by no means only) from the West, which converted Soviet citizens to their faith. Most religious diversity before 1989 was, however, due largely to the ethnic diversity that had resulted from the historical contingencies of migration, military occupations and the redrawing of boundaries by the Byzantine, Ottoman, and Austro-Hungarian Empires, and a multitude of wars, including the two World Wars of the twentieth century. Thus, Hungarian Unitarians, Lutherans, and Greek Catholics are to be found living among the Romanian Orthodox in Transylvania; Muslims, Catholics and Greek Orthodox are to be found in Albania; and Russia has long embraced a wide variety of ethnic groups, each preserving its own religious tradition as best it can.17 But for a sizeable proportion of the population, pluralism, in the sense of a peaceful coexistence of minority religions, has been, and for many remains, an alien concept. It was in the mid-1980s that I first became aware of the extent to which the concept of pluralism might present a problem to countries unfamiliar with even the dubious kinds of democracy that are to be found in the West. I was giving a lecture on religion in Western Europe and North America at the University of Warsaw. Question time came, and a member of the audience stood up. “This idea of pluralism in the West is very interesting,” he said, “but who’s going to win?” I assumed that the translation of the lecture had not been very successful, but when I gave roughly the same talk in Krako´w a few days later, I got exactly the same question: “Yes, but who’s going to win?” Today—after a decade that celebrated the collapse of the Berlin Wall, wit-

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nessed the dissolution of the Soviet Empire, acclaimed the introduction of democracy, and suffered the bloody murders and ethnic cleansing of the Former Republic of Yugoslavia—a prevailing question has remained: “Which of the many competing religions or ideologies on offer is to win?” The battle has commenced. In this essay my focus is not exclusively, or even primarily, on the literal and tragic battles that have taken place in the Former Republic of Yugoslavia, nor on the dubious roles that the religious institutions, be they Catholic, Orthodox or Muslim, played in that process. What I concentrate on is a very general discussion of how, to a greater or lesser extent, in the other post-communist countries—at the social, if not at the military, level— there are continuing tensions that would seem to militate against, rather than contribute to, societal integration. Such tensions can be found both between the various religions, and between religious institutions and other sections of society.

III. PROBLEMS FACING THE TRADITIONAL C HURCHES In almost every country, the main protagonist claiming the right “to win” is the Mother or national church. During the communist period these were, to a greater or lesser extent, oppressed: In Albania they were completely suppressed; in Poland, uniquely, the Catholic Church was able to attract believers (and even unbelievers) to mass each Sunday, and was, in a number of ways, able to provide an important alternative to the socialist state. But with the collapse of socialism all the traditional religions were confronted (again, to varying degrees) with a number of pressing problems. Many have been treated with suspicion because of their actual or perceived collaboration with the socialist regime. Sometimes this was with good reason; but there were plenty of instances of priests and other believers suffering persecution and, as mentioned earlier, even dying for their faith. The antireligious socialization of the population may not always have produced virulent atheists (in fact, one can find remarkably little in the way of successfully implanted antagonism toward the opiate of the people, far less than the anticlericalism that one could have come across in sections of France or Italy, for example); but state socialism had produced generations of persons unversed in the basic tenets of the Bible, with little or no knowledge of their religious traditions and rituals, and unfamiliar with religious or spiritual concepts with which to explore the transcendent. Throughout the 1990s, the traditional churches have faced a serious demographic imbalance, with the majority of priests being either elderly survivors or young seminarians, both tending to be inexperienced and/or unsophisticated in matters of economics, politics, and leadership. Furthermore, the churches

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have tended to have little experience in developing a practical theology: The Orthodox churches have traditionally concentrated on the liturgy as a carrier of ethnic identity, and by 1989 the Catholic Churches, having, on the whole, remained relatively unaffected by the radical changes of the Second Vatican Council, tended to be staunchly conservative, with little to offer in the way of answers to issues of current concern for their flock (although abortion did become a hot issue that many of the churches started to debate). So far as pastoral questions or social services were concerned, these had become defined, especially in urban areas, as tasks for the state; and even when clergy may want to help, few have been trained in social welfare or counseling skills, and most people are just not used to looking to the churches for this kind of assistance. But perhaps the lack of experience and training has been particularly noticeable in areas such as teaching and evangelism; untrained priests may be ridiculed by school children; and secular teachers, who may suddenly be asked to teach religious education, tend not only to be uneducated in religious knowledge, but also disinclined to take on a new subject which holds little interest for them. And, like the vast majority of their members, many of the churches are poor. Most clergy have to survive on pitifully low salaries; much of the churches’ property was confiscated; churches may have been converted into a swimming pool, a storehouse for potatoes, a hospital, or an orphanage. Disputes over the restitution and the restoration of these and other capital assets18 may become particularly acrimonious when there are two or more claims for the same building or piece of land—if the hospital or orphanage is forced to move to a worse location or to close down altogether. The Church can become defined as uncaring, greedy, and more concerned with itself and its secular interests than with the plight of the poor and needy. In Poland before 1989, one frequently heard the phrase “the Church and us against them;” now one is as likely to hear the phrase “the Church and them against us.” Given these and a myriad other problems, it is not surprising that the traditional churches bitterly resent the incursion of foreign religions into their territory, particularly American evangelical Protestants and new religious movements. This resentment becomes particularly acute when the foreign missionaries demonstrate their undoubted superiority in teaching, in evangelizing and, above all, in drawing on an apparently bottomless reserve of financial resources.

a. competition from minority religions All is not fair in love and pluralism. The foreign missionaries are, the national churches’ argument goes, bribing our flock, the flock that rightly belongs to us. If a father has been imprisoned, is it not right that once he is released he should be allowed to have his own children returned to him? Why should foster parents be allowed to kidnap them? “The Jehovah’s Witnesses (the Mormons, the

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‘Moonies,’ the Baptists) are very rich,” the traditional churches complain. “They promise the poor ‘if you join us, we’ll help you with money to start up a small business’—they are buying souls.” And it is not merely filthy lucre with which the foreign missionaries lure the flock. They can bring employment—the Mormons, for example, have set up a thriving cement plant in the Republic of Armenia. As mentioned earlier, Bibles had been smuggled through the Iron Curtain for many years, but once the Wall came down, not only Bibles, but whole rainforests of literature swamped the literature-starved peoples on the other side (people queuing was an all-toofamiliar sight during the socialist period, but the longest queues I ever saw in Prague in the early 1980s were on Thursdays when the books came in). Literally as the Wall was being pulled down, the Scientologists were there, handing out their literature to the East Germans. Soon they were to be found in other postsocialist societies, promoting courses on How to Improve Your Communication Abilities and all manner of other skills necessary for the aspiring capitalist; purification courses were offered to counteract industrial pollution and the after-effects of Chernobyl. Unificationists organized trips to the West for students and those who were likely to occupy positions of leadership in the future; they held conferences on a number of subjects in comfortable hotels in the Crimea (now they are more likely to invite those who can themselves pay for the privilege to partake in one of their mass “Blessings”); and, perhaps most seductively of all, they have sent volunteers from the West to give free or greatly subsidized English lessons. Transcendental Meditators offer Transcendental Meditation; Sahaja Yoga offers instant enlightenment through the awakening of the kundalini; and ISKCON devotees offer Krishna consciousness and Food for Life, frequently feeding undernourished and starving peoples whom most of the rest of the world had abandoned in war zones such as Bosnia, Chechnya, and Nagorno-Karabakh (until they are thrown out for “threatening to undermine national solidarity.”)19 The new churches that depend on American Prosperity theologians (such as Kenneth Hagin and Kenneth Copeland) have grown apace. One can, for example, attend a meeting of about 6,000 young and not-so-young members of the Hungarian Faith Church on the outskirts of Budapest, or a gathering of the Church of Truth in an open-air venue just outside Yerevan. In both places, members of the congregation will be dressed in their Sunday best and, one after another, grateful converts with shining eyes will be witness to how they have succeeded in their careers, and turned from poverty to—at least relative— riches once they had taken Jesus into their hearts. Just as in parts of Latin America and Africa, the so-called “Happy Clappies”20 are offering the message of Jesus’ love with the promise of Health and Wealth—and a not insignificant number of people are certainly accepting the offer and prospering.21 Many of the foreign missionaries have, moreover, not only experience in

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teaching and proselytizing, but also access to expensive technology with which they can communicate their message to tens of thousands or more at a time. Buying prime-time on radio and beaming satellite television from outer space are but some of the more obvious resources at their disposal.

IV. DIVERSITY OF RESPONSES TO THE RELIGIOU S S ITUATION The supply of alternative religions in Central and Eastern Europe is undoubtedly there. But availability of foreign goods does not necessarily mean that the demand is high. In an attempt to illustrate the diversity that may be found between individuals in their receptivity to the religious alternatives available in the religious supermarket, this section sketches a range of ideal typical positions that can be found in post-communist societies. It also hypothesizes briefly about the relationships that might be found between motivating interests and attitudes toward both the National/Mother Church and the minority religions. It needs to be stressed that the descriptions are of ideal types in the Weberian sense.22 That is, they are not intended to reflect an actual reality, but rather to provide an analytical tool for comparative purposes. It is possible, indeed probable, that few individuals will be precisely portrayed by any one type; most are liable to straddle two or more types.23 But it is hoped that the logic of the relationships between the different positions represented in table 2.1 will be recognizable, at least to the extent that they may form the basis for empirical testing by further research into (a) the relative composition of membership of the different types both within and between different societies, and (b) the reliability of the hypothesized relationship between an individual’s religious position, the motivating interests associated with that position, and his or her attitude toward both the Mother/traditional Church and minority religions.24 “Continuing attenders” are people who went to church during the socialist regime, and who have been and remain staunch supporters of the national church. Such people are typically to be found in rural areas; an obvious example is the babushka,25 but the category would, of course, also include priests, monks, nuns, and other religious professionals. Such people are likely to be primarily motivated by deep feelings of religious devotion that are irrevocably connected to a cultural heritage which has been sustained throughout the years by the Mother Church. Any competition, particularly that from newfangled foreign movements, is likely to be seen as anathema by the continuing attender. “Traditionalists” are likely to be motivated less by religious devotion than by the importance of upholding the cultural heritage of the nation. For them, the continuing identity of the nation is well-nigh inconceivable without the Mother Church. Their sentiments are similar to those of the continuing attender, but of prime importance is preservation of their culture by the Church, which they

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table 2.1 Ideal Type Positions and Attitudes Hypothesizing an ideal typical motivating interest associated with an individual’s religious and his/her consequent attitude toward the Mother/national church and toward minority religions Attitude toward Religious position Continuing attender Traditionalist Atheist

Pending-tray Revivalist Belonger-notbeliever

(a) (b)

internal external pre-1989 post-1989

Believer-notbelonger Religious seeker New Age seeker Consumerist

Motivating interest Mother Church religious nationalist nationalist religious (negative) self/group betterment religious religious group-betterment (national) self-betterment (nationalist) religious religious spiritual self-betterment

Competition

Ⳮ Ⳮ Ⳮ V

ⳮ ⳮ ⳮ (ⳮ)

(Ⳮ) (Ⳮ) (V)

(ⳮ) (ⳮ) Ⳮ&ⳮ

(Ⳮ)

ⳮ

Ⳮ

ⳮ

(V) (V) V (V)

(Ⳮ) Ⳮ (Ⳮ) (Ⳮ)

(Parentheses indicate qualification)

must loyally support, rather than their adherence to any particular dogma or their performance of any sacred ritual. Clearly minority religions, especially those of foreign origin, will be seen be seen as a threat both to individual identity and to the survival of the nation. “Atheists” are typically drawn from those who were brought up and socialized by the socialist regime and had reached at least early middle-age by the end of the 1980s. They are likely to affirm that they have not needed religion in the past and do not need it now. They can be subdivided into two separate categories, the first of which overlaps with the previous category of “traditionalists” (who are likely to pay at least lip-service to the existence of a God). The second category is more religiously—or, rather, antireligiously—motivated. Here one might find staunch Marxist-Leninists who believe that religion is a dangerous man-made opiate that is responsible for upholding the bourgeois ideologies of states and the false consciousness of the masses. Although ideologically against all religion, such atheists might not be fervently against minority religions on

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the grounds that they see them as an (albeit dubious) alternative to the relatively powerful traditional churches. They may even offer them limited support on the grounds of the equality of rights for all citizens. Those in the “pending-tray” category tend to regard religion as a luxury for which they have no time at present. The economic situation takes up all their time and attention. Perhaps, they will explain, when they are not so overburdened with securing basic necessities for themselves and their immediate family, religious issues can be considered more carefully. In the meantime, they have nothing against the Mother Churches, which, they will say, probably deserve their support. The minority religions tend, however, to be regarded with a not-very-well-articulated suspicion. “Revivalists” are motivated by religious interests and can be found both within the Mother Churches and in minority religions. The followers of Alexander Men could provide an example of “internal” revivalists within the Russian Orthodox Church. Such people owe their primary allegiance to the Mother Church but are likely to have doubts about the ways in which some of its leaders are tackling the present situation. These “internal” revivalists, who identify with the national church and will try to introduce reform from within the organization, can be more or less liberal and open to ecumenical and even interfaith dialogue. They do not necessarily condemn minority religions merely because they are alternatives. Other, “external,” revivalists, such as those who belong to American Evangelical religions, are eager to bring The Truth and salvation to every soul. While they may see other churches as a hindrance to this goal, they may also perceive the wisdom of working with the national churches. They are unlikely to have a positive attitude toward other minority religions (themselves excluded, of course) which some of their number may label as heretical or even of satanic origin. “Belongers-not-believers” again fall into two subtypes. First there are those who, before the Wall came down, were motivated by anticommunist interests to support the national church as an alternative ideology and structure. The obvious example here is Poland, where atheist parents would baptize their children, attend mass, and take part in various activities organized by or through the Catholic Church. They would not necessarily have a strong antipathy toward minority religions, if only because they, too, were an alternative to the state apparatus. Post-1989 “belongers-not-believers” are more likely to be motivated by self-interest. Just as in the days of a communist regime, if one wished to progress or even stay relatively secure in one’s job and general circumstances, it was advisable to be a card-carrying member of the Communist Party, so, after the collapse of communism, might it be helpful to be seen to attend the “right” church to meet and associate with the “right” people in order to demonstrate that one was a true Christian supporter of the national church. Clearly, any suggestion that one supported minority religions, especially foreign and/or new religions, would not be advisable.26

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“Believers-not-belongers” are religiously motivated. They are, however, disillusioned for one reason or another with the traditional churches, although they may feel that, were the churches to be reformed, that is where their true heart lies. Some will have decided to pray, read the Bible, and/or perform other acts of worship by themselves. Others may start up a small group—this was quite common in Hungary, and it was not unusual for the members of the basecommunities to come from a number of different confessions. “Religious seekers,” like those in the previous category, are dissatisfied with the national church and prepared to try out alternative answers to their religious questions. Sometimes persons falling into this category will join a minority religion for a period, discovering a social environment, concepts and, perhaps, Biblical knowledge with which to develop their religious comprehension. After some time, however, they may find the alternative religion to be shallow or lacking the tradition that they feel to be part of their cultural heritage; they may then return to their national church, having gained what they feel to be a sufficient religious understanding to benefit from whatever the Church can offer. “New Age seekers” are not altogether dissimilar to the previous category, but their interest is likely to be more of a quest for spiritual enlightenment than knowledge or understanding of a religious tradition. Their attitude toward any kind of traditional organization is liable to be one of suspicion. Indeed, they are quite likely to be sceptical of all organizations and will be seeking for “the God within,” and ways to develop their “true selves,” rather than affiliation to any particular movement—although they may find themselves attracted to a new religion when its rhetoric promises freedom from the restraints of normal society.27 “Consumerists” are motivated primarily by an interest in furthering their own careers or getting some other kind of benefit from whatever source is available. The national churches are unlikely to offer them much that attracts their attention, but several minority religions might. Mention has already been made of some of the secular inducements that minority religions may offer—from straightforward financial support, to English classes and courses in business management. Although involvement in an alternative religion for secular reasons may lead some consumerists to become attracted to its social or more religious offerings, most are likely to do as their counterparts in the West have tended to do: That is, to take what they can and then leave the movement behind them.

V. RELIGION AND NATIONALISM Examining the diversity on offer in the religious marketplace, and distinguishing between types of individual predispositions to the diversity may be a nec-

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essary part of our understanding of the situation vis-a`-vis minority religions in Central and Eastern Europe; but it is certainly not sufficient. One of the many other questions that must be asked concerns the relative strengths of the different religions and the kinds of obstacles confronting not only the Mother Churches, but also the minority religions. Violence and legal restrictions are obvious methods of controlling any religion, and they have been and continue to be used in battles to win the ideological war. Less obvious, but possibly just as effective, are the more subtle weapons of negative images and labeling the opponent as a threat not only to individuals but also to the very fabric of society itself. Pushed into a corner from all sides, with, they believe, the odds stacked heavily against them, it is not surprising that the national churches should be fighting back. Many of them are actively seeking constitutional protection for themselves and strict control over other religions, particularly those from foreign lands. But many of them are also turning to nationalist sentiments in their appeals to members of the population and their assertions of their right to claim them as their own. Increasingly the rhetoric within and without the national churches is that to be a good—a real—Russian, Bulgarian, Romanian, Pole, Croatian, or Serbian one has to be a member, or at least a supporter, of the national church. “We the nation” and “we the Church” are one. “They”—the others—are beyond the pale; they are not merely heretics—they are traitors. The openness to such a position has already been intimated in the ideal types outlined above, with table 2.1 indicating the importance of nationalism among the motivating interests listed in the second column. Perhaps the coincidence of religion and nationalism could be further illustrated with another story. My landlady in Yerevan is a well-educated woman and one of the kindest people I know; she welcomes me as a long-lost daughter every year when I return to Armenia. One evening I returned home slightly later than usual and she asked where I had been. “To the Hare Krishna temple,” I responded. “Oh—they’re not Armenians,” she told me. “Oh yes—they are,” I said. “No they’re not,” she repeated. “Yes they are,” I repeated. “They’re not.” “Look,” I said “they have all lived in Yerevan all their lives—they don’t speak any other language than Armenian—and their names all end in -ian.” “They’re not Armenian. They’re not Christian.” “Come off it,” I countered, “Your children aren’t Christian—they’re atheists—aren’t they Armenian?” “Yes of course they are,” she replied indignantly, “they’re Christian atheists.”

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And that, it seemed, meant that they, unlike the Krishna devotees, were Armenian. I was not entirely surprised to learn some weeks later that the temple I had visited had been desecrated; several of the devotees had been beaten up and their property stolen or destroyed. A few months later, the Krishna temple was once again desecrated. One of the devotees whom I later reinterviewed showed me a couple of photos that someone had taken shortly after—he had blood pouring down his head, other devotees were still in hospital. An official at the American Embassy, who had seen the battered devotee at the time, confirmed his story for me. But this time it was not only Krishna devotees who had been attacked. In Moscow I spoke to a couple of young members of The Family who had taken seriously a threat to throw them from their twelfth-floor balcony—they left the country. Indeed, it was not just the new religions that were attacked. American Baptists were not excluded; nor yet were some Armenian Protestants from the diaspora. Paramilitaries had broken into the homes and offices of almost all the religions in the country, apart, of course, from the national church—and the Mormons. When I asked the Yerevan Mormons how they had managed to escape, they told me it was because God was on their side—but somehow I suspected that the cement factory might have had more to do with it. I questioned scores of Armenians about the incidents. A few were angry and ashamed. Some denied that such a thing had happened or could happen. But the majority (including politicians and clergy) said that, while it was a regrettable incident, members of these foreign religions were asking for trouble, and that it would be best for them and the country if they (including those treacherous Armenian citizens who were denying the traditional faith of all Armenians) were all to get out of the homeland as soon as possible. Three points need to be recognized. First, these were certainly not religious fanatics—most of them never went to Church and were incapable of naming even one of the four Gospels. Second, they were not even vicious or unkind people. They were “normal,” decent people who knew merely that their country was under threat from foreign intrusions. Third, this story has been told about Armenia, but variations could be told about Russians, Bulgarians, Serbians, and various other nationals around the world.28 What has been illustrated is the conceptual maneuver, to be found in many countries, that defines the national, ethnic and/or cultural “us” in terms of—or, perhaps, as coterminous with—the members or supporters of the national/Mother Churches. Everyone else is “othered” and relegated to the category of “them.” But when one looks in more detail at religions other than the national churches, there is a discernible pattern to their rhetoric which has a cumulative effect on the image of minority and, especially, new religions. An attempt to

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represent this pattern symbolically is made in table 2.2. To generalize rather grossly, other traditional religions which have historically had a presence in the society (Muslims in Russia, Greek Orthodox in Albania, Unitarians in Romania), although not part of the “us” of the Mother Churches, may be heard to define “us” not just as themselves, but as themselves and the national churches.29 Foreign missionaries from mainstream churches (Baptists in Romania, Lutherans and Anglicans in Russia) are likely to talk about how they are working with the national churches to save the society for God. In other words, they include themselves in the “us” of traditional (respectable) religions working together for the souls of the nation’s citizens—it is the others who are them. But we can hear a similar claim from the religions that emerged as sects in the nineteenth century (Jehovah’s Witnesses, Mormons, Seventh-day Adventists). They too define themselves as being an integral part of their expanded, “respectable” “us” of Christian society. This, of course, leaves the new religious movements being defined as “them” by pretty well everyone—except, of course, themselves. It is true that, as mentioned earlier, there is a sense in which “new” new religions will define themselves as “us” in opposition to the rest of society. This does not, however, mean that they cease to regard themselves as citizens of the country of their birth. But while Russian Rajneeshees, Bulgarian Unificationists, Hungarian Scientologists, or Polish devotees of Krishna might consider themselves to be Russian, Bulgarian, Hungarian, Polish, or whatever, they have, in the eyes of many of their compatriots, denied themselves the normal rights of citizenship. By swearing allegiance to a multi-national, global religion, they have proved themselves to be anti-national—traitors.30

VI. MINORITY RELIGIONS AND MINORITY RIGHTS But it is not merely the rhetoric of nationalism that leads “cultists” to be labelled as “other.” Treating members of minority religions as lesser citizens, with lesser right to normal rights, is frequently justified with reference to their beliefs and practices, or alleged beliefs and practices. Of course, not all members of new religions are saints; they are, although some might be amazed to learn it, fairly ordinary human beings. The fact that they belong to a new religion can, however, dispose some of them to be either somewhat better or somewhat worse than they might otherwise be; certainly, they do tend to take their religion more seriously than most, and that can be a dangerous thing—look at what the old religions have got up to. If members of a new religion break the law—and several have done so— then clearly the law should be applied to them in exactly the same way as it would be to anyone else. But any nation that affirms the United Nations Uni-

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table 2.2. Ideal Typical Attitudes of Religions Toward “Them” and “Us” US Mother/National Churches Other Historically Present Religions Foreign Mainstream Religions Nineteenth-century Sects New Religious Movements THEM

versal Declaration of Human Rights or the European Convention on Human Rights and Fundamental Freedoms cannot apply special laws to someone because of his or her beliefs.31 If the arrival of new or alien religions results in things being done of which we do not approve, but which are not covered by the law, it may be necessary to introduce new laws, to protect children born into some movements, perhaps. But in a democratic society that claims all its citizens are equal before the law, such new laws should apply equally to all, be they Orthodox, Catholic, Lutheran, or Muslim, Seventh-Day Adventist, Krishna devotee, or Scientologist. There are, none the less, reasons which lead normally tolerant people to say that—although they would not dream of attacking members of new religions for their beliefs, and although (generally speaking) they agree with everyone “having the right to freedom of thought, conscience and religion”32 and although everyone is entitled to basic human rights “without distinction of any kind, such as . . . religion”33—one does, they will say, have to recognize that one just might have to introduce special methods to control the movements. This, they will argue, is because the actions of new religions can pose a threat to the individual members themselves (as in the case of Heaven’s Gate), or to others in their own movement (as in the case of the Solar Temple), or to those with whom they cross swords (such as the lawyer in a case against Synanon who found a snake in his mail box) or, most frighteningly of all, to innocent members of the public (as in the case of Aum Shinrikyo poisoning the commuters on the Tokyo underground with sarin gas). Of course, these were all horrific and (with the exception of the Heaven’s Gate suicides) criminal acts, but the very fact that they were criminal acts means that they could be prosecuted under the “normal” criminal law.

V II . POPU LAR IMAGES OF THE NEW RELIGIONS AND THEIR C ONSEQUENCES Cults, it is not uncommonly alleged, indulge in brainwashing their victims, the break-up of families, political intrigues, financial skullduggery, gun-running,

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drug trafficking, sexual orgies, ritual child abuse, suicide, and murder. They should, therefore, be subject to special regulation or banned altogether. Now it is true that members of some new religions have indulged in some of these practices at some time. It is also true that some members of old religions— and, indeed, some members of no religion—have done so. To take but one example, there are literally hundreds of Roman Catholic priests who have been indicted for sexual abuse of children in the United States during the past decade. It was not an altogether facetious reply when, in answer to the question “when does a cult turn into a religion?” a gentleman from Oxford was reported in The Guardian as answering: “When they stop killing themselves and start killing other people.” Among the various factors that load the dice against members of new religions being able to enjoy human rights commensurate with their normal status as citizens, special attention might be paid to the input that the media and anticult movements have in creating the image that members of a society have of new religions. It is common knowledge that no two people ever have exactly the same picture of reality. Each version of “the truth” is more or less influenced by the information that we use to construct our own version, and that information is, to a greater or lesser degree, selected according to our aims and interests. Furthermore, groups of people who have common aims and interests tend to construct reality in ways that are systematically different from other groups with other aims and interests.34

a. media images Thus, the media, whose aim is to gain and keep viewers, readers and/or listeners, have an interest in the atypical, the sexy, the bizarre—anything that will attract attention. Stories about people leading normal, happy lives are assumed (usually quite correctly) to be of little or no interest to a potential audience. On the other hand, a sinister cult with bizarre beliefs and weird practices is, let’s face it, interesting. Furthermore, news is not news if it is old hat. The producers of media stories have neither the time nor space to go into any depth in most of their stories. The result is that it is the sensational stories that get reported— and because the public image of a cult is almost automatically one of lurid fascination, when a cult member commits a criminal act, the person’s status as a cult member will likely get reported, while if the crime is committed by a member of a majority religion the person’s religion will likely not be mentioned. The consequence of all this is that the visibility of bizarre or “bad news” related to cults is likely to be disproportional to its relative occurrence: it may well be that Catholics, or Anglicans, have a higher rate of criminal behavior than members of minority religions, but the impression will be that it is the

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cultists, not members of the Anglican, Catholic, or Orthodox Church who commit so many of those crimes. None of this is to suggest that all pictures of reality are equally valid. They are not. There are methods by which more reliably accurate pictures of empirical reality can be constructed and tested. The social scientist would have to conduct a comparative analysis with a “control group” of Catholics or Anglicans (or members of the general population) of the same age and social background as the members of the new religion, and then see whether the rate of, say, child abuse was greater in the one group than it was in the other. It might well be that the results would lead us to ask what it might be about the new religions that stopped their members committing suicide, murder, sexual abuse—or what-have-you.

b. anticultist images The other common-interest group that ought to be mentioned briefly is the socalled anticult movement. This is an efficiently organized network of groups around the world that provides negative information about new religious movements. Again, there is no space to go into any details of the way such groups operate, and it ought to be stressed that there is quite a wide variety of beliefs and practices to be found among anticultists, but their effectiveness in helping the media and, indeed, the population at large, to define the “cult reality” in their terms is by no means insignificant. Curiously enough, some of the more extreme anticultists bear an uncanny resemblance to their depiction of the cultists whom they attack. They present a kind of mirror image in which the cult’s “good and godly” becomes the anticultists’ “evil and satanic,” and the “us” of the cultist becomes the “them” of the anticultist. For the anticultist, as for some of the new religions, it is all or nothing—you are either unequivocally with us or you are against us. To introduce qualifications, as social scientists are likely to do, is to “muddy the waters.”

c. state control The rising nationalism associated with the national churches and the negative images of new religions presented by the media and the anticultists, and the widely publicized antisocial and criminal behavior perpetrated by a few of the movements in various places around the world have led to pressure being put upon governments to “do something” about the cults—and it can be quite a popular move for politicians publicly to attack the movements, which few are likely to defend. One way that the state may control religious minorities and, to some extent,

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religious majorities also, is through registration. States differ in the extent to which they consider that this is necessary and/or desirable. Sometimes the law makes it particularly difficult for minority religions to register and there are great disadvantages in not being registered. Registration may, for example, require a mandatory minimum of 10,000 members (unless, as in the case of the Czech Republic, the religion is a member of the World Council of Churches, in which case, only 100 members are necessary), thus effectively excluding many minority religions; another criterion may be the length of time the religion has been in existence in the country, with a period of, say, one hundred years effectively excluding new and/or most foreign religions. The 1997 Russian Law, which requires a religion to have been registered fifteen years earlier— that is, during the Soviet period—has caused, and is continuing to cause, untold problems.35 While there are ways in which registration will provide positive assistance to a religion by giving it money or subsidies, and permitting it to act as a corporate body in law, registration can also function as a means of curtailing the activities of the religion, dictating, for instance, how the children are to be educated. But not being registered might mean that a religious body is unable to hire a hall for meetings, or even to use its own premises for acts of worship; it may even mean that it cannot function as a religious organization in some societies. But states do not need to pass discriminatory laws to contribute to a society’s discrimination. Even if the legislature does not discriminate against minority religions (and several post-communist constitutions are scrupulously exemplary in their care not to do so) the actual implementation of the law may be discriminatory, and there are numerous instances of a nondiscriminatory law being grossly violated.36 Governments may also produce reports containing highly questionable information.37 Recently I have been giving my graduate students a new exercise. They have to write 1500-word critiques of the depiction of new religions in a 1996 Report written by the Russian Ministries of Internal Affairs38 and Health.39 As students, they have enthusiastically exposed the methods that resulted in this extraordinarily rich hotchpotch of gross distortions, generalizations, inconsistencies and downright inaccuracies. But, of course, it is not such fun if you are a member of a new religion which is defined as one of the “dangerous, destructive cults” that, it is implied, ought to be banned, repressed, and/or controlled in one way or another.

d. the social scientific approach It is not only social scientists who believe it is important to make available accurate and unbiased accounts of what particular religions really believe and really do—and really do not do. Such accounts are needed not only to protect the religions from generalizing prejudice and bigotry, but also to alert society

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to potential dangers and to help us to try to prevent those spiraling antagonisms which can eventually result in disaster (Waco is but one dramatic example; the current situation of Falun Gong in China promises to be another, though, it is to be hoped, less tragic). Not that we shall ever be able to anticipate, let alone solve, all the problems that will, no doubt, continue to confront us. Whether the five further deaths of members of the Solar Temple that took place in March 1997 could have been avoided, I do not know—perhaps, perhaps not. But, given the gross lack of reliable information and the profusion of misinformation that abounds, there is certainly room for improvement. During the course of my study of new religions over the past quarter of a century I have seen what seems to me to be an enormous amount of unnecessary suffering through ignorance, misinformation, and misconceptions. In 1988, with the support of the British government and the mainstream churches, I set up a small charity called INFORM with the aim of providing information that is as accurate, objective, and up-to-date as possible. INFORM draws on an international network of experts (scholars, lawyers, doctors, therapists) and people with personal knowledge of the movements (such as the members themselves, exmembers, and relatives of members). Enquirers telephone, write, or visit the office for information. INFORM also offers a number of other services: If asked, it will mediate between a relative (usually a parent, but sometimes a spouse) and the movement concerned; it produces literature (books40 and leaflets about particular movements); it provides talks and lectures, and organizes twice-yearly day-long seminars, attended by about 100 persons, which deal with a variety of topics, such as new religions and children, health, sex, the millennium, education, the law, the new age, the media, and violence.41 INFORM does not have a magic wand, but it has managed to help a great number of parents and other enquirers; it keeps the Home Office informed of what is going on; it tries both to alert the public and appropriate authorities when it sees potential problems, and to reassure when there seems to be unfounded anxiety. Several of the more responsible members of the media have come to rely on INFORM quite heavily, and their reporting has become considerably more accurate—just as interesting, but less inflammatory.

VIII. C ONC LU DING REMARKS Minority religions have been treated with suspicion and discriminated against throughout the world and throughout history, and their fate in post-communist societies is no exception. These new upstarts may not be systematically thrown to the lions or burned at the stake, but burnings have taken place, bombs have been thrown, and people are still dying for their faith. Of course, members of minority religions are by no means the only people to suffer, and some of their number have undoubtedly inflicted suffering upon themselves and others. But

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that is no reason for us not to try to understand them and, indeed, all those who have beliefs that we ourselves do not share; nor is it any reason not to extend to them the same rights—and restrictions—as are extended to any other citizen. Modern society has given rise to a vast diversity of experience; few people have the same jobs or live in the same geographical or social environment as their parents, let alone their grandparents. The religious answers that satisfied our parents do not always satisfy our children. A world-view that can satisfy an agricultural worker in rural Poland will not necessarily satisfy a university professor in Belgrade or a baker in Nisˇ. Migration, travel, the mass media, and increasingly sophisticated electronic means of communication have opened new horizons that recent history has shown cannot be successfully suppressed. Except under conditions of totalitarian rule, diversity of world-views is inevitable in the twenty-first century. But there are no independent criteria that can resolve disagreements over supernatural or other nonempirical claims. Diversity can result in internecine battles at the one extreme, or in peaceful coexistence—pluralism—at the other. When national identity becomes associated exclusively with a particular religion, and other beliefs are treated not as alternative religions contributing to the richness of a nation’s culture but as treacherous ideologies, we are likely to see prejudice, discrimination, and, possibly, bloodshed. If, however, we accept that national identity and membership of a particular religion need not necessarily be related—if we can tolerate diversity and even celebrate pluralism—we may come to accept, in answer to the question I was asked in Poland over ten years ago, that it is perfectly possible, and perhaps it is also healthier, to live in a society in which no one—and, thereby, everyone—may win.

endnotes 1. For a discussion of problems related to definitions and counting the numbers of movements and members, see Eileen Barker, New Religious Movements: A Practical Introduction, Appendix II (Macon, Georgia: Mercer University Press, 1989). 2. This high turnover rate makes the popularly held contention that members of the new religions have been subjected to irresistible and irreversible mind control techniques rather difficult to uphold. 3. Sun Myung Moon, Divine Principle 490ff (Thornton Heath: Holy Spirit Association for the Unification of World Christianity, 1973). 4. It should, however, be noted that by no means all minority religions were underground or even suppressed. In the mid-1980s, for example, I was able to visit a number of small Buddhist groups and other new religions, which were functioning without much problem in Poland. 5. Aumism, the Religion of Unity, founded by Hamsah Manarah in France in 1969,

The Protection of Minority Religions in Eastern Europe 83 should not be confused with Aum Shinrikyo, founded by Shoko Asahara in Japan in 1987. 6. Barker, above n. 1; see also Bryan Wilson, The Social Dimensions of Sectarianism: Sects and New Religious Movements in Contemporary Society (Oxford: Clarendon Press, 1990). 7. None of this is unique to the current wave of new religions. Most of these characteristics are to be found among the early Christians, Muslims and other religions. Jesus, for example, stressed the divisive nature of his mission more than once; see Luke 14:26 and Matthew 10:35–6. 8. Eileen Barker, New Religious Movements: The Inherently Changing Scene in Irena Borowik and P. Jablonski (eds.), The Future of Religion: East and West 73–92 (Krakow: Nomos, 1995); Eileen Barker, Plus c¸a change . . . in Eileen Barker and Jean-Franc¸ois Mayer (eds.), Twenty Years On: Changes in New Religious Movements 165–80 (London: Sage, 1995), special edition of 42/2 Social Compass. 9. The Japanese, who experienced their ‘Rush Hour of the Gods’ (see H. Neill McFarland, The Rush Hour of the Gods: A Study of New Religious Movements in Japan (New York: MacMillan. 1967)) immediately after the Second World War, now refer to religions, such as Aum Shinrikyo, that have appeared since 1970 as ‘New New Religions’: see Susumu Shimazono, New New Religions and This World: Religious Movements in Japan after the 1970s and their Beliefs about Salvation in Barker and Mayer (eds.), above n. 8, 193–206. 10. This White Brotherhood should be distinguished from the longer established White Brotherhood following the teachings of Peter Deunov/Beinsa Duno in Bulgaria, which could be classified as an “old new” religion that has, interestingly, reversed the flow that concerns us here by having spread from Eastern Europe to the West. One can, however, discern some overlap in the beliefs of these movements and various other White Brotherhood communities in the West (such as Elizabeth Clare Prophet’s Church Universal and Triumphant, and Ananda Tara Shan’s Ananda Ashram in Denmark) and older religions such as Guy Ballard’s “I AM” Religious Activity and Madame Blavatsky’s Theosophy. 11. It should be noted that several of the movements now have native leaders at national and local levels, and that some of these may have been members of their movement during the communist period—possibly operating underground, or while living in Western countries. 12. The founders of four of the five best-known movements in the 1970s and 1980s, have died: Prabhupada (1896–1977), founder of ISKCON; L. Ron Hubbard (1911–1986), founder of Scientology; David Berg (1919–1994), founder of The Family/Children of God; and Osho (1931–1990), founder of the Rajneeshee movement. Sun Myung Moon (1920– ) is still controlling the Unification Church as an innovative and unpredictable charismatic leader, although a considerable amount of bureaucracy and tradition has been established within the movement. 13. By such means, a number of students of religion in Central and Eastern Europe have first learned of incidents such as the attacks on the Krishna Temple in Yerevan (see below), legal proceedings in Russia and draft legislation in Hungary or Ukraine.

84 e ile e n ba rke r 14. Eileen Barker, Standing at the Crossroads: The Politics of Marginality in David Bromley (ed.), The Politics of Apostasy (London: JAI Press, 1997). 15. There was some anti-cult activity concerned with, for example, Jehovah’s Witnesses and Mormons. This, however, tended to be more counter-cult than anti-cult; that is, it was more intent on revealing theological error than anti-social practices: see Massimo Introvigne, The Secular Anti-Cult and the Religious Counter-Cult Movement: Strange Bedfellows or Future Enemies? in Robert Towler (ed.), New Religions and the New Europe 32–54 (Aarhus, Denmark: Aarhus University Press, 1995). 16. Wade Clark Roof, Jackson W. Carroll and David A. Roozen (eds.), The PostWar Generation and Establishment Religion: Cross-Cultural Perspectives (Boulder: Westview, 1995). 17. A curious twist in history is to be found in 1971 when, for reasons of political expediency, the Muslims of Bosnia were declared to be not a religious, but a national, community. 18. The Catholic Church in Slovenia has, for example, been fighting a complicated battle over restoration of vast areas of forest that it once owned. 19. In Poland, a concerned priest told me how he spent a lot of his valuable time persuading Catholics that it was better for them to starve than break the first Commandment by consuming food that had been offered to pagan idols. 20. A name popularly ascribed to those who joyfully clap with their hands in the air while singing their praises to Jesus and the Lord. 21. Several of these congregations have close connections with Ulf Ekman’s Word of Life Church (Livets Ord) in Uppsala, Sweden. 22. Max Weber, “Objectivity” in Social Science and Social Policy in Edward A. Shils and Henry A. Finch (eds.), The Methodology of the Social Sciences 50–112 (New York: Free Press, 1949). 23. Obviously such a tool would not be useful if it bore little or no relation to reality. The types have been culled from my own research over the past decade or so, which has involved numerous visits to the traditionally Christian post-communist societies of Central and Eastern Europe and the former Soviet Union, and literally hundreds of interviews with a wide range of people of all ages and a vast variety of backgrounds. To take examples almost at random, interviews and discussions have included those with school teachers in Tallinn and school children in Jablonec, a chemist in Szeged, a psychologist in Bratislava, university students in East Berlin, government ministers in Budapest, a tourist guide in Split, aid-workers in Yerevan, a gynecologist in Dilizhan, a sculptor in Ashtarak, an immunologist in Krako´w, an actor in Prague, a piano teacher in Stepanakert, a poet in Nisˇ, an artist in Tirana, a musician in Oradea, secretaries in Ostrig, old ladies in Kosova, a psychiatrist in Kiev, dissidents in Belgrade, a farmer in Artashat, earthquake survivors in Gyumri, human rights activists in Sofia, political activists in Moscow, a folklorist in Bucharest, an army commander in Aghdam, soldiers in military helicopters, pensioners in parks, workers in factories, shop assistants in shops, peasants in fields and peasants in markets, statisticians in Warsaw, postmodern vampires in Bistria, seminarians in St Petersburg, a Hussite priest in Baroun, a Unitarian Bishop in Cluj, Archbishops in Maramure, the Catholicos in Etzmiadzin and, it sometimes seemed, politicians, journalists, clergy,

The Protection of Minority Religions in Eastern Europe 85 missionaries and social scientists just about everywhere. I have enjoyed the hospitality of countless people, and have stayed in modest village dwellings, magnificent urban mansions and, most frequently of all, faceless Soviet apartment blocks on the outskirts of a variety of anonymous conurbations. 24. Should any readers of this paper be interested in conducting such research, they might like to contact ISORECEA, The International Association for the Study of Religion in Eastern and Central Europe, c/o Professor Irena Borowik at the Institute for Science of Religion, Jagellonian University, Rynek Głowny 34, 31–010 Krako´w, Poland. 25. This Russian word is commonly used to refer to an elderly woman or “grandmother,” who may well have taken her grandchildren to church and kept alive the traditional religious culture in an otherwise atheistic household during the communist regime. 26. It is possible that being an assiduous “belonger-not-believer” no longer holds the importance it once held (in the early 1990s) for self advancement. 27. Eileen Barker, The Cage of Freedom and the Freedom of the Cage in Eileen Barker (ed.), LSE on Freedom 103–18 (London: LSE Press, 1995). 28. In Ukraine, the issue is complicated by the existence of three Orthodox Churches, which tend to hate and/or distrust each other more than they hate and/or distrust the new religions.The Ukrainian parliament, however, recently had before it a draft law designed to protect citizens from psychologically dangerous influences— which are generally taken to refer to cults—particularly, but by no means only, the White Brotherhood of Maria Devi Khrystos. Parts of this draft law and those that have been presented to other parliaments seem remarkably reminiscent of the protection offered to Soviet citizens who were defined as mentally ill when their ideological opinions did not match those of the state. The political split in Bulgaria, on the other hand, does not appear to have affected members of either faction so far as their attitudes toward minority religions are concerned. 29. The case of Jews in Poland, Hungary, Russia and the Czech Republic is somewhat different. Although undoubtedly members of a long-time traditional religion, and in many cases well-integrated into the social fabric, anti-Semitism persists—in some instances at a dangerous level. 30. One of the many interesting qualifications to this pattern which space does not permit me to explore more fully here is that some of the indigenous new religions— the Church of the Last Testament followers of Vissarion in Russia, the Soldiers of Christ in Armenia—are treated with just as much, if not more, suspicion. And they have not even the multinationals at the end of an e-mail to garner international support to protest on their behalf. An even more curious twist to the story is the attitude of some Pagan groups in, for example, Poland, the Baltic States, Ukraine, Byelorussia, Armenia and the Volga region of Russia. See Piotr Wiench, Neopaganism in Central Eastern Europe (1997). See also Sergei Filatov and Aleksandr Shchipkov, Religious Developments among the Volga Nations as a Model for the Russian Federation, 23(3) Religion, State and Society 233–48 (1995). These pagan groups worship the really national gods—the gods of the earth whom the “foreigners” destroyed when they brought Christianity to change the land forever—and for the worse—some hundreds of years ago.

86 eile e n ba rke r 31. In fact, the United States’ 1993 Religious Freedom Restoration Act did allow members of some religions to partake in certain practices that would otherwise have been defined as criminal—unless the state could show that there was a compelling state interest why they should not carry out such a practice. The Act was overturned by the United States Supreme Court in June 1997 as the result of a case involving the Roman Catholic Church. 32. Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc A/810 71 (1948), Art. 18. 33. Ibid. Art. 2. 34. Eileen Barker, The Scientific Study of Religion? You Must be Joking!, 34(3) Journal for the Scientific Study of Religion 287–310 (1995). 35. The Keston Institute in Oxford has publicized numerous examples of the difficulties faced by religions wishing to register in Russia and other post-communist countries. 36. Lev Levinson and Vyacheslav Polosin, Freedom of Conscience Violations in the Russian Federation (1994–1996), Report officially presented at the OSCE Review Meeting in Vienna, November 1996, by the International Association for Religious Freedom, Russian Section, and the Committee for the Protection of Freedom of Conscience, Moscow. 37. This is by no means something that is confined to post-communist societies. The recent French Report, Les Sectes en France, and the Belgian Report (313/7–95/ 96, April 1997) have been cited and used as though they were official policy to discriminate against the movements labeled as “dangerous cults.” See Little, chapter 1 in this volume at n. 51ff. 38. A. Kulikov, Inquiry on the Activities of Certain Foreign Religious Organizations gathered from materials of the MVD, FSB, Ministry of Health, Ministry of Welfare and General Attorney’s Office, Ministry of Internal Affairs of the Russian Federation, October 23, 1996 No. 1/17464 to No. 3–21–695 of September 23, 1996. 39. A.D. Tsaregorodtsev, Report, Ministry of Public Health and Medical Industry of the Russian Federation, August 11, 1996. 40. See Barker, above n. 1 and Robert Towler (ed.), New Religions and the New Europe (Aarhus, Denmark: Aarhus University Press, 1995). 41. INFORM (Information Network Focus on Religious Movements) is housed at the London School of Economics, to which it is affiliated through the Sociology Department.

Chapter 3 e q u a l i t y a nd r e l i gi ou s p r e f e r e n c e s : t h e or e t i c a l , i nt e r n a t i o n a l a n d r e l i gi ou s p e r sp e c t i v e s Tad Stahnke

I. I N TRODU C TION: THE EQUAL TREATMENT OF RELIGIOU S C OMMUNITIES The equality of religious communities is not a deeply ingrained principle of law or practice in many parts of the world. Many religions—at their most basic level—don’t fully believe in it or embrace it. Many states do not abide by it. Religious preferences, in the form of treatment by the state that accords persons belonging to or institutions of certain religious communities benefits, privileges, and exemptions not accorded to others abound. Such preferences can take the form of inhibiting persons who belong to certain communities from the full practice of their beliefs or the free operation of their institutions. Moreover, even where communities are not so inhibited, the state may accord different levels of state aid, support, or recognition to different religious communities. This essay explores the question whether religious preferences are consistent with a state’s obligations under international human rights law to prohibit discrimination on the basis of religion and to provide for the equal protection of the law. The principles of equality and nondiscrimination on the basis of religion are both ubiquitous and central to the scheme of international human rights law. Every significant international and regional human rights convention con-

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tains prohibitions against discrimination on the basis of religion.1 Many states provide for the same in their national constitutions or otherwise in their domestic law. The apparent discrepancy between the anti-discrimination obligations of international human rights law and the persistent state practice of religious preferences raises the possibility of both widespread state discrimination and human rights obligations well out of step with the realities of state practice. Such a discrepancy between law and practice is found throughout the field of human rights. But the relationship between and among religious communities and the state is directly related not only to the protection of individual freedom, but to public peace and order as well. In other words, the stakes are high and the benefits are substantial in protecting and ensuring the right to be free from discrimination on the basis of religion. And yet, such discrimination, in anything less than its most virulent forms, has not attracted prominent attention in international affairs. In this way, the situation compares unfavorably to the work of the international community in the area of racial discrimination.2 Decolonization and the struggle against apartheid in southern Africa were concrete political issues on the international agenda, and many states were willing to make them central to their bilateral and multilateral foreign policies. For the most part, this has not been the case with religious discrimination.3 One area of human rights discrimination on the basis of religion has been in the granting of civil and political rights—such as limitations on the right to vote or to stand for public office on the part of members of minority religious communities. Another significant and often overlooked area of discrimination on the basis of religion is differential treatment by the state in the recognition of religious communities, i.e., the system of state rules and regulations under which religious communities organize and operate, and by which they receive benefits and privileges. Although some societies are moving in the direction of equality of treatment in this area, many obstacles remain. The resistance against the equality of treatment by the state in religious affairs is a primary obstacle to international consensus in the area of human rights related to religion and belief and the development of international standards. It is somewhat unusual to look at the problem of differential treatment in state recognition of religious communities through the lens of international human rights standards relating to discrimination, or even to conceive of such differential treatment as a human rights problem at all.4 The hierarchical relationship of different religious communities within any given society is invariably the product of a rich mixture of religious, political, and cultural forces. Nevertheless, it is useful to examine cases of differential treatment in state recognition from the analytical framework of discrimination, because such an approach requires states to articulate the purposes behind important policy choices. First, under the particular circumstances at hand, are religious communities the same or are they different? And second, is the differential treatment

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of religious groups by the state sufficiently related to any legitimate public purpose? These two questions are usefully addressed even if the laws on the books in a state are not apparently discriminatory. As the recent experience in the former Soviet states has shown, nondiscriminatory laws pertaining to religious communities will probably not remain so in their enforcement or application if there is not general agreement that the law has reached the correct result.

I I. THE MODERN HISTORICAL DEVELOPMENT OF STATE REC OGNITION OF RELIGIOU S C OMMUNITIES In a number of areas of the world, the recognition by the state of more than one religious community has gone through a dramatic historical development. All societies today consist of more than one religious community. Very few states purport to restrict its citizens to a single religious option. For many Western European states, legal recognition of this multireligious character has developed gradually from (1) the recognition of a single religious community to (2) granting the freedom to selected communities to formally organize themselves into institutions for worship and education to (3) establishing a system where, at least in principle, all religious communities are granted the freedom to organize themselves and manifest their beliefs to (4) granting financial support, privileges, and exemptions to select communities of a kind similar to those provided to the traditional, majority, or otherwise dominant religious community. This process, which began in Europe with the Peace of Westphalia in 1648, has taken place in conjunction with a number of other important legal and social transformations. First, in many societies there has been a gradual secularization of the functions of the state and a separation of powers between the state and the dominant religious community. Over time, the state has thus become increasingly unwilling to impose civil disabilities on dissenters, heretics, and schismatics of the dominant community solely for the purpose of enforcing religious dogma. This process was essential to accepting in principle that members of all religious communities have the right to freedom of religion. Second, the right to freedom of religion as a matter of international law and practice has changed from recognizing the rights of religious minorities—in many instances minorities based on nationality or ethnicity—to practice their religion without interference from the majority to recognizing the individual’s right to freedom of religion by virtue of the sanctity of individual conscience. The latter right does not stem from membership in any particular community, or any particular relationship between minorities and the dominant community, but exists solely by virtue of the individual’s inherent humanity. These two approaches are exemplified by the Minorities Treaties and system of minorities

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protection under the League of Nations on the one hand, and by the Universal Declaration of Human Rights on the other. A corresponding social change has occurred in that religion has been increasingly seen more as a matter of personal choice—and thus more fluid in nature—than as primarily a matter of ethnicity or heritage. This is exemplified by a large number of religious communities—many of them transnational and multiethnic—both willing and eager to seek and accept converts. A third change has been the growing acceptance by religious communities themselves of the idea that believers of all religions possess the right to freedom of religion. The recognition of this right by the Catholic Church at the Second Vatican Council in 1965 is especially significant to schemes of state recognition in those countries where Catholicism is the dominant religion. Currently in Eastern Europe most, if not all, states espouse the principle that persons belonging to all religious communities are entitled to exercise their right to freedom of religion, exemplified by Article 9 of the European Convention. Nonetheless, there are potential areas of discrimination in state recognition of religious communities. First, minority religious communities in Greece have asserted that the preferential position of the Greek Orthodox Church has resulted in violations of the right to freedom of religion. Notably, the European Commission and European Court have agreed with this position in a number of cases. Second, the emergence in recent decades of new religious movements—and through migration, immigration, and missionary activity—the presence of old religions in new places has challenged the tolerance and stability of even religiously plural societies. Thus, a number of states or political subdivisions have undertaken a review of certain religious communities labeled variously as “sects,” or “cults” (through varying criteria) with a view toward determining the necessity of regulating such communities in a manner different from that of other religious communities. Third, a number of states are beginning to develop systems of recognition whereby certain religious communities are being offered benefits or privileges similar to those granted to the dominant religious community. Each of these areas of concern raise important issues related to discrimination in the treatment of religious communities. In post-communist Eastern Europe, the current context for the recognition by the state of multiple religious communities is somewhat different from the mainly gradual developments that have taken place in Western Europe. Changes in the direction of equality that were taking place in Eastern Europe and Russia during the period prior to the advent of communist rule were swept away by the radical rearrangement of religion-state relations mandated by Marxist theory and imposed by communist rulers.5 Generally, the communist regimes were characterized by militant atheism and the suppression of organized or public religious activities. However, in many states there was a discernible hierarchy of repression, and all communities were not treated the same. One

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possible characterization of the post-communist problem of reordering religionstate relationships in societies now self-identified as in transition to democratic political systems devoted to the protection of human rights is that state recognition should raise all religious communities from the position of zero or limited freedom to some standard and equal level of freedom, autonomy, and support. However, as noted above, even during communist rule a hierarchy existed. In addition, there exists the memory of the position and hierarchy of religious groups as they existed prior to communism. Thus, one major question currently being debated in Eastern Europe is whether the historically dominant religious community (or communities) should be restored to their precommunist position, or at least to some approximation of that position. Eastern European societies were to some extent shielded during the communist period from the forces that have edged Western states toward the equality of religious communities. At the same time, communist repression of religion in general also shielded indigenous religious groups from both foreign influence and foreign competition. Just before or soon after the fall of communism, a number of Eastern European and former Soviet states enacted laws broadly providing for the freedom of conscience and religion and generally allowing for the recognition of all religious denominations. However, a number of these states, including Russia, Ukraine, Belarus, and Azerbaijan, amended those laws after only a few years of experience under them to more or less restrict the recognition of religious communities and the freedom of (mainly foreign) religious operatives. Reasons offered for these amendments included perceived difficulties with foreign missionaries and the rapid success of new (at least in those societies) religious movements. Behind these reasons, at least in part, was the growing political power of the dominant religious community. In a variety of fora, Eastern European states have stated their commitment to living up to their international human rights obligations, and therefore the post-communist formation of stable religion-state relationships should take place in accordance with international standards.

III. STATE REC OGNITION OF RELIGIOU S C OMMUNITIES The myriad aspects of the legal relationship between the state and religious communities and institutions are governed by an extremely diverse set of state practices. Some states treat religious communities as jurisdictional entities. Different state laws—in many cases covering such areas as marriage, family relations, and inheritance—are applied to the members of different communities. In some of the cases religious communities are granted the authority to apply their own laws—again in certain limited substantive areas—to their members through their own legislative, administrative, or judicial institutions.

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Other states recognize religious communities as organizational entities. Some states recognize and regulate religious organizations as such (sometimes having a specific executive or administrative governmental body devoted solely to the affairs of religious institutions), while others treat them in a wider context of charitable and educational organizations. Some states have general laws and regulations that cover all religious organizations, while others have separate laws or agreements covering certain aspects of the institutions of individual denominations, or classes of denominations that meet certain criteria. Moreover, agreements setting out the rights of the Catholic Church in a particular state are many times negotiated with the Holy See and thus may take on the character of international agreements. These various laws and agreements typically establish (1) the rights and powers of religious entities, (2) the privileges, benefits, and immunities granted by the state to religious entities or persons belonging to those entities, and (3) limitations on the activities of religious entities. Examples of important rights and powers include the acquisition of legal personality, the ability to own and transfer property, the freedom to order the internal affairs of the entity according to appropriate doctrinal principles, and the ability to raise funds through charitable solicitation. Typical privileges include state financial support (sometimes through a direct tax), the recognition of the jurisdiction of religious courts, access of clerics to public facilities such as prisons, hospitals, and the armed forces, the ability to conduct religious instruction and worship in the statesponsored schools, and access to state-controlled media. Examples of limitations include restraints on commercial activity, political activity, and occasionally on the ability to proselytize and accept converts. Many of the laws and agreements described above—either on their face or in their application—create distinctions between religious communities. For example, a law providing generally for the legal recognition of religious institutions and thereby allowing those institutions to legally engage in corporate activities may apply only to institutions representing a minimum number of members or only those institutions engaged in “religious worship.” In the case of the latter criteria, those entrusted with the decision as to whether a group engages in religious worship may, in turn, rely on a variety of criteria to make that decision. As another example, a law that grants tax exemption to the institutions of religious communities may restrict that benefit to certain named communities that have been otherwise officially recognized by the state for at least some number of years. Examining these types of distinctions for the possibility of discrimination requires an examination of the effect of the distinctions on the full range of religious communities and the purposes asserted to underlie them. In the case of individual agreements between the state and religious communities regulating the rights, powers, and privileges of those communities, the

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enabling law permitting such agreements may establish certain criteria or in practice, certain groups may have negotiated agreements whereas other have not. Recognition of religious communities through different means (e.g. a generally-applicable law or an individual agreement) does not necessarily result in discrimination.6 Indeed, in order to attain equal results, it may be necessary to recognize the significant differences between various groups, particularly in methods of decisonmaking and patterns of institutional and hierarchical structure. For example, the needs of religious institutions associated with the Moscow or Ecumenical Patriarchate or the Catholic Church in Rome can be significantly different from those of institutions organized on a congregational basis. As discussed below, these very differences can be exploited by some states in pursuit of various ends. Even if the state intends to provide equal treatment for all groups, there is some tension between (1) establishing standard rules applicable to all groups, and (2) providing separate rules according to their differences in order to secure the ability of all to exercise their rights and powers on an equal basis. Differential treatment of religious groups on this basis—in recognition of different organizational or structural characteristics for the purpose of facilitating the ability to exercise the right to religious freedom on an equal basis—cannot alone be considered unequal treatment. Indeed, the failure to recognize these differences might be considered discriminatory if it were to prevent a group from fully exercising their rights. The recognition of religious communities by the state presents issues of equality that can usefully be divided into two distinct but interrelated sets of problems. First, states must secure the right to freedom of religion, and this inevitably involves the recognition of bodies of believers in associations, organizations, or institutions. Limitations on these institutions and their members must be in accordance with international obligations regarding limitations on the manifestation of religious belief and the general principles of equality and nondiscrimination. In other words, all religious communities are entitled to such state recognition as is necessary to protect and secure the right to freedom of religion of its members, and such recognition must be provided, both on its face and in practice, in a nondiscriminatory manner. Second, as discussed below, the obligation to prohibit discrimination on the basis of religion under both the International Covenant on Civil and Political Rights (ICCPR) and the European Convention goes beyond claims that the right to freedom of religion has been violated. This obligation also applies to claims that the state has accorded differential treatment to religious communities in providing support, privileges, or exemptions beyond what is required to protect and secure the right to freedom of religion. Both the Human Rights Committee and the European Commission have so held in cases primarily concerning conscientious objection to military service. However, beyond the

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question of cognizance of such claims, these few cases do not provide much in the way of guidance in how to assess them.

IV. DIFFERENTIAL TREATMENT AND DISC RIMINATION

a. equality and discrimination in international human rights law 1. basic principles The legal principles of equality and nondiscrimination are central to international human rights law.7 The ICCPR and the European Convention both contain obligations to ensure or secure the rights specified in those instruments without “distinction of any kind” (in the words of Article 2.1 of the ICCPR) or “discrimination on any ground” (in the words of Article 14 of the European Convention). Article 26 of the ICCPR contains a broader obligation on states to provide for the equal protection of the law and “equal and effective protection against discrimination on any ground.” This protection is not limited to the rights specified in the Covenant, but extends to “any field regulated and protected by public authorities.”8 The obligation to prevent discrimination contained in Article 14 of the European Convention does not have the same reach as the obligation to provide for the equal protection of the laws in Article 26 of the ICCPR. However, an independent violation of a right specified in the European Convention is not necessary to support a claim of discrimination under Article 14. To raise a valid claim of discrimination, it is enough to show that the subject matter of the claim “fall[s] within the scope” of an Article protecting a specified right.9 As mentioned above, not every case of unequal treatment is considered to be discrimination.10 The formulation of the standard under both the Covenant and the European Convention is that unequal treatment is not discrimination if it is made in pursuit of a legitimate aim and is based on objective and reasonable grounds.11

2. special measures Notwithstanding the possibility that it might otherwise be considered discrimination, differential treatment employed for particular purposes is sometimes categorically considered not to be discrimination. For example, Article 2 of the UNESCO Convention against Discrimination in Education provides that in certain instances, the maintenance of separate educational systems for religious or linguistic reasons is not discrimination as defined in that Convention.12

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Under certain circumstances, differential treatment may not only be allowed, but also required. The Human Rights Committee considers that temporary preferential treatment for a particular group in specific matters may be required if there exists “discrimination in fact,” in other words, conditions that prevent or impair that group’s ability to enjoy their rights protected under the Covenant.13 This concept can create some confusion because differential treatment of those in different circumstances is usually considered the norm in state legislation and is fully in conformity with the obligation to prohibit discrimination. The obligation to intervene—through unequal treatment if necessary—in order to balance the unequal enjoyment of rights due to unequal conditions is perhaps best understood to attach when there is no sufficient connection between the conditions causing the inequality in rights and the nature of the rights or duties involved.14 This positive obligation to provide differential treatment under certain circumstances has not been significantly developed in the work of the Human Rights Committee. Also, it has not been readily apparent in the application of the anti-discrimination provisions of the European Convention by the European Bodies.

3. the rights of religious minorities A final issue relevant to this discussion is whether a regime of rights specific to minorities (including religious minorities) adds any independent content to the analysis of differential treatment claims. Under Article 27 of the ICCPR, persons belonging to religious minorities have the right to profess and practice their religion. The Human Rights Committee considers that positive measures by the state may be required to protect the identity of persons belonging to a minority group and the rights conferred on those persons by Article 27.15 Such measures are not discrimination when (1) they “are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under Article 27,” (2) they are “based on reasonable and objective criteria,” and (3) they “respect the provisions of Articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population.”16 These minority rights provisions emphasize the importance of certain equality and discrimination principles to the condition of most minority groups. In particular, the possibility that conditions may exist in fact—rather than in law— that prevent members of minority groups from realizing the full protection of their rights triggers an obligation of the state to respond. This can be explained by both the existence of social or cultural prejudice against minority groups, and the state’s unwillingness to act on such prejudice by virtue of the concentration of political and legislative power in the hands of the majority. However,

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there is nothing in the scheme of minority rights under Article 27 that cannot also be applied to differential treatment of the majority if the situation warranted, i.e. if the political and social power to further prejudice and the violation of rights was lodged in the minority rather than the majority. As discussed above, the same positive obligation on states to correct conditions that interfere with the exercise of rights on any basis exists under Article 26 of the Covenant. A possible exception to this general statement is the obligation of the state to act to protect the identity of a minority.17 Nevertheless, the obligation to protect identity may provide some additional pressure on states to provide minority religions privileges and benefits similar to the dominant religion in a state where the minority is otherwise inhibited in the exercise of their right to freedom of religion. On the other hand, the Committee would look closely at any attempt to use Article 27 to justify preferential treatment of a minority in comparison to the majority, at least when the minority is in control of the political process.18 Again, the key factor is some condition that is truly threatening the existence or way of life of the minority,19 or the ability to exercise their rights.20 As this comes quite close to the Committee’s interpretation of a state’s positive obligation to intervene under Articles 2.1 and 26, the rights of religious minorities under Article 27 does not add much independent content to the nondiscrimination provisions of the Covenant. This is also true of the other major schemes of minority rights in international law.21

b. claims of differential treatment on the basis of religion Claims of differential treatment on the basis of religion can arise in a number of different substantive postures.22 A claim that the right to freedom of religion has been violated may be accompanied by a claim of differential treatment on the basis of religion.23 For example, a particular religious group may claim that the state has forbidden them from operating a place of worship, while other groups are allowed to do so.24 From the perspective of the claimant in isolation, the claim is based on a denial of religious freedom, while in comparison to at least one other group, the claim is also one of differential treatment. In these circumstances, providing the same treatment (e.g. prohibiting all religious groups from operating places of worship) does not address the central problem, as the treatment itself constitutes a limitation on the right. This example illustrates the basic idea that simple equality in treatment does not fulfill human rights obligations when the absolute demands of a particular right have not been met. Differential treatment may also arise as an apparent exercise of the right to religious freedom. For instance, when a religious institution has a rule limiting employment to persons of that faith, a claim can be made by a nonbeliever

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denied employment that the state has failed in its obligation to prohibit discrimination on the basis of religion. In response to this claim of differential treatment, the institution may argue that their ability to restrict employment on the basis of religion is a necessary component of the right to freedom of religion. Differential treatment claims can also arise in situations where there is no claim of, nor an apparent violation of, the right to freedom of religion. When a state chooses to provide financial benefits or recognize privileges or exemptions for religious groups that go beyond those required to guarantee religious freedom—such as monetary support, tax exemptions, or access to provide religious instruction in the state schools—these advantages may be provided to one group and not others, or to different groups in different degrees.25 Claims of differential treatment on the basis of religion may be made in conjunction with other rights protected in international human rights law— such as personal or familial privacy,26 the freedoms of expression, assembly, and association or the right to participate in public affairs—or in conjunction with almost any area of state legislation or regulation. Differential treatment may also occur through a variety of procedural mechanisms. It may be apparent on the face of the law or regulation in question, or may result from its application. At the application stage, the party in control of enforcement may apply the standards contained in the law differently to different groups.27 The law may have no effective standards, leaving total discretion in the hands of the enforcement body. This discretion may be exercised differently according to the particular group involved. Another type of differential treatment in application occurs when a law makes no distinctions between different religious groups, but the definition of what makes a group “religious” or a “religion” operates in such a way as to exclude certain groups who claim to be similar to other groups that are included. Furthermore, where a state has limited the right to freedom of religion, but the limitation has been justified by a superseding state interest such as the protection of public order or the rights of others, that limitation may be applied differently to different groups.28 Finally, the operation of a law that applies generally to everyone may result in a different impact on a particular group solely because of an attribute of that group. In other words, the law itself may make no distinctions and be properly applied, but the effect may be felt by some groups and not by others. Wellknown examples of this situation include laws that require businesses to close on the Sabbath day of a particular faith, thereby indirectly burdening those whose religion observes a different Sabbath day. This differential effect may be intentional29 or unintentional.30 In some of the above situations, other problems overshadow the direct consideration of the differential treatment itself. Differential treatment will be largely irrelevant when clear violations of the right to freedom of religion are

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evident. Likewise, selective application of legal standards or the exercise of arbitrary discretion may be so grounded in prejudice or suppressive intent so as not to warrant any consideration of the possible justifications for the differential treatment. Other instances of differential treatment may admit of a justification, and two further points apply. First, different treatment cannot always be characterized as unequal treatment, at least when viewed in terms of the results of its application. For instance, different treatment applied to two groups who are in different circumstances may yield equal results and thus can be characterized as equal treatment.31 Second, unequal treatment (in the sense of both different treatment applied to equals and the same treatment applied to unequals) is not always discrimination. Most legal systems recognize that unequal treatment may nevertheless be justified in pursuit of a legitimate aim as long as there is a sufficient connection between the aim pursued and the means used to achieve it. One further complicating factor must be mentioned. Equality is not a state of nature. It requires more than mere observation to determine that two human beings or groups of human beings are equal. It requires the identification of traits and attributes and a context of circumstances within which to judge their similarity or difference. It also requires a judgment of value; a scale of comparison. In the field of law, it is the law itself that “creates legal equality or inequality, and therefore it is the law which decides the dilemma whether aspects of equality or aspects of inequality should prevail.”32 This is neither an abstract nor a scientific question, but essentially a moral one.33 The answer will be different for different people. Religious beliefs and doctrine, because they inform how people think about human qualities and justice and fairness in human relationships, can play a significant role in determining the answer. Furthermore, a society’s determination of the question will change over time. A claim of discrimination therefore will almost always contain an underlying assertion of either the failure to recognize an essential equality or an erroneous assumption of equality.

c. summary In summary, if the prohibition against discrimination is to be applied consistently and effectively to claims of differential treatment on the basis of religion, the central questions that must be answered in particular disputes are: 1.

In comparing religious communities or individuals of different religious beliefs, should aspects of equality or inequality prevail? This may involve an assessment of whether beliefs and their manifestations can be termed “religious” or not, and whether manifestations

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2.

3.

of certain religious beliefs are detrimental to legitimate societal interests; Are there legal or social conditions preventing the enjoyment or exercise of rights and freedoms by certain religious groups otherwise equal to those who are able to do so, thereby allowing or even requiring the state to accord differential treatment in order to correct the imbalance? And; Are there legitimate aims for treating religions differently, and under what circumstances might such treatment reflect both objective and reasonable criteria?

V. DIFFERENTIAL TREATMENT IN STATE RECOGNITION OF RELIGIOUS COMMUNITIES

a. religious views on the equality of religious communities Before turning to the issues raised by differential treatment by the state in the recognition of religious communities, it is useful to consider the views of various religious bodies on the potential obligation of a state to treat all religious groups equally. In the “Declaration on Religious Freedom” (Dignitatis Humanae) from the Second Vatican Council, the Catholic Church declared that it was an obligation of the state to support religious activity as an element of the common welfare.34 Likewise, equality was declared to be an element of the common good that the state must never violate for religious reasons, and therefore discrimination on the basis of religion is generally prohibited.35 The Catholic Church did not go so far as to condemn “special civil recognition” of a particular church or religion, but such recognition was supported on grounds of historical circumstance rather than theological doctrine. It did recognize, however, that any special recognition of one group must not result in limitations on the religious freedom of others.36 The Dignitatis Humanae ended—at least at the level of doctrine—what has been called the Catholic Church’s “double-standard” in its relations with the state: “freedom for the Church when Catholics are a minority, privilege for the Church and intolerance for others when Catholics are a majority.”37 However, even if the state is responsible for securing a basic standard of religious freedom for all and can allow no inequalities for religious reasons, it doesn’t necessarily follow that the state must treat all groups the same over and above the requirements of religious freedom. The Dignitatis Humanae makes no clear statement on this point, and the practice of the Catholic Church has clearly been to support a privileged position for itself wherever possible with

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respect to other religions. A declaration of complete parity would be in some tension with the idea—similarly held by many religious groups—that the Catholic religion is the culmination of the search for truth, and that the state should support conditions under which its inhabitants may freely come to embrace this truth.38 Other Christian religious bodies have taken somewhat more far-reaching positions. In 1948, the First Assembly of the World Council of Churches declared that the rights to religious freedom should be recognized “without distinction” on the basis of race, color, sex, language, or religion.39 Furthermore, it declared that “[i]n pleading for [religious] freedom, [Christians] do not ask for any privilege to be granted to [them] that is denied to others.”40 Although carefully worded, this statement could support the notion of equality among Christians and between Christians and non-Christians at whatever level of recognition or support a state provides over and above the minimum requirements of religious freedom. The World Baptist Alliance has declared that the right to freedom of religion must be extended to all.41 The Alliance has also seriously questioned the compatibility of the established or state church with religious freedom, and has sought to renounce the idea that privileges can be granted by the state to one group over another, at least as between Christians: [W]e maintain that it is most difficult to have Establishment (or a State Church) and religious liberty at the same time. We believe that the Church should be separated from the State just as much as the State should be separated from the Church. No Church should be given special privileges by the State, nor should any Church seek such. There must be equality among Christian people. They must not desire power or dominance one over the other.42 I am not aware of an authoritative statement by any representative Orthodox body. It should be noted that even though they are essentially national in origin, the Greek Orthodox Church and the Russian Orthodox Church (since the fall of the Soviet Union and communism) are in some respects in a similar demographic position as the Catholic Church. Both represent the historically dominant majority in at least one state, and a minority in others. Further reconciliation by the Moscow Church with the Russian Orthodox Churches abroad will increase the former’s position as a minority in a number of states.43

b. the state or established church or religion One basic form of differential treatment of religious communities is the recognition in law or practice of the dominant religion in a society as the official

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religion of the state or the “established” church or religion. The existence of such an entity does not in and of itself necessarily constitute discrimination. Arcot Krishnaswami concluded in his study that “the mere fact that a country falls into one of the three categories [of established church/state religion, recognition of several religions, or separation of state and religion] is not in itself a sufficient basis upon which to determine whether or not discrimination with respect to freedom of thought, conscience and religion exists in that country.”44 The ICCPR and the European Convention neither prescribe nor proscribe any type of formal legal relationship between the state and particular religious communities. However, a strong possibility of discrimination is raised by the recognition of state or established religious communities. In these circumstances, it is important to assess the particulars of what this designation means in practice. The Human Rights Committee has addressed concerns raised by the existence of a state or established religious community in consideration of the reports of States Parties to the ICCPR and in the General Comment to Article 18. In consideration of States Parties’ reports, the Committee has consistently sought to determine whether or not the legal position of a state or established religious community, in practice, translates into benefits or privileges in relation to other religious communities.45 There is evidence of opposing views within the Committee on the question of when privileges or preferences for a state church might constitute discrimination. In its review of the report of Sweden in 1985, the Committee noted that the Lutheran State Church was supported by a tax levied by the state while other religious communities were not. In response to the question of whether or not this financial arrangement was discriminatory, the Swedish representative asserted that other religious groups were not discriminated against because only members of the Lutheran Church were responsible for paying the tax.46 In the view of one of the members of the Committee, religious freedom could be protected through a number of different arrangements, and a state’s historical religious heritage could be taken into account. Therefore, the existence of this type of financing arrangement for a state church was not discrimination in violation of the ICCPR.47 Another member took an opposing view, reasoning that “religious communities other than the Lutheran Church must be victims of discrimination if they did not enjoy the same privileges and advantages as the Lutheran Church.”48 Both viewpoints offer a somewhat unsatisfactory analysis of the discrimination question. The first view appears to contemplate that as long as the requirements of religious freedom for all groups are met, no legitimate issue of discrimination could be raised by differential treatment in the provision of benefits above and beyond those requirements. As discussed above, this view does not comport with the decisions of the Committee (and the European Commission) relating to tax exemption and conscientious objection to military service. The

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second view appears to hold that all forms of differential treatment are discrimination. Neither view reaches the heart of the discrimination question: is the differential treatment made in pursuit of a legitimate aim under the ICCPR and are the criteria used to make the distinction both reasonable and objective. In its General Comment on Article 18, the Human Rights Committee recognized that the primary concern raised by the existence of a state or established religious community is the treatment of nonmembers of these communities.49 The Committee also recognized that even in situations where the religious freedom of other communities is not being violated, questions of discrimination could still arise. The Committee noted that the existence of a state or established religious community “shall not result in any impairment of the enjoyment of any of the rights under the Covenant . . . nor in any discrimination against adherents of other religions or non-believers.”50 Furthermore, the Committee went on to list three types of measures as “not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under Article 26.”51 These were (1) “restricting eligibility for government service to members of the predominant religion,” (2) granting “economic privileges” to the predominant religion and (3) “imposing special restrictions on the practice of other faiths.”52 The European Bodies have not—as yet—expressed concerns similar to the Human Rights Committee over the possibility of discrimination resulting from the legal position of a state or established religious community. In a case involving Sweden, the European Commission stated that the existence of a state church was not incompatible with Article 9 of the Convention, as long as the state church system included safeguards to protect the individual’s freedom of religion.53 As long as no one is compelled to join the state church and members are free to leave, the Commission does not appear to view state involvement with these churches—in itself—as implicating any unique concerns of religious freedom or discrimination.54 This view may generally comport with the fact that a number of parties to the European Convention have established or state churches. On the other hand, there is some evidence from the drafting history of Article 9 that the regulations and practices pertaining to these churches would fall under the purview of that Article. A proposal to add the following phrase to Article 9 was ultimately abandoned: “Nothing in this Convention may be considered as derogating from already existing national rules as regards religious institutions.”55

c. recognition of religious institutions qua institutions Recognition by the state of religious institutions raises the possibility that, in doing so, the state can either force or reinforce the rearrangement of the relative

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importance that a religious community places on the individual believer, the individual congregation, and whatever institutions exist higher up the chain of the hierarchy.56 It is generally accepted that the right to freedom of religion includes the freedom of persons belonging to religious communities to organize themselves into associations or institutions in order to facilitate religious worship, teaching, and practice in community with others. In order to make this freedom meaningful, the community must be able to organize these associations and institutions according to the hierarchical and institutional structure mandated by the appropriate religious law, custom, or belief.57 Because different communities have different rules and beliefs on these matters, the state must mediate the particular demands of each community while at the same time providing uniform, nondiscriminatory, and effective regulation. With these obligations in mind, states must determine at what level or levels of the institutional hierarchy they will grant recognition and what rights, powers, obligations, and privileges will be granted at each level so recognized. This decision may conflict with the views of the religious community itself on where the locus of institutional authority lies, and on what rules and procedures it believes should govern internal decisionmaking and the relationships between institutions in the hierarchy. Recognition at a particular level, or the grant of powers and privileges at a particular level, may comport well with the doctrine of religious communities that emphasize the importance of that level. However, if the same system of recognition is applied to communities with different rules or priorities, a form of differential treatment may result. The same concerns arise with respect to rules of internal decisionmaking that a state may seek to require or sanction for the institutions that it recognizes. Arcot Krishnaswami expressed this type of problem in this way: [I]t must be borne in mind that since the demands made by various religions upon their members are different and since varying degrees of importance are attached to different manifestations, uniformity of treatment may in reality lead to discrimination against some religions. Thus, if the State prescribes a certain pattern of religious organization—in which, for example, all members of each group have an equal voice in some aspects of its management, such as the selection of its leaders—this would be detrimental to those groups whose religions prescribe a hierarchical organization and submission to a supranational authority, and would therefore be discriminatory.58 How a state chooses to work out this knotty problem of conflicting obligations is evidence of its commitment to both freedom of religion and nondiscrimination. A sensitive and informed balance is required in order to avoid undue restriction or even coercion in order to conform to the dictates of the law.

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Attitudes of indifference, ignorance, or the presumption that all religious communities conform, or should conform, to the structure and hierarchy of the dominant religious community can lead to the same negative results. Some states have exploited the nature of this problem in order to support or suppress certain religious communities, or certain forces within a particular community. The recognition of religious institutions at the lowest level can weaken the influence of hierarchical bodies. In the alternative, recognition at the highest level can suppress those institutions at the lower levels. The Soviet Union prior to 1990 provides a good example of the manipulation of state recognition and regulation of religious institutions in order to further a state policy of repression of the right to freedom of religion. The central guidelines and principles of Soviet law and policy on religious affairs were established by the government decree of January 23, 1918, “On Separation of Church from State and School from Church” (“1918 Decree”) and the Russian Soviet Federative Socialist Republic (RSFSR) Law on Religious Associations of 1929 (“1929 Religious Associations Law.”)59 Under the Soviet system, certain liberal rights and powers were left, in theory at least, to the religious individual.60 Religious institutions, on the other hand, were stripped of many of their powers.61 Section 12 of the 1918 Decree provided: “No ecclesiastical or religious associations shall have the right to own property. Such associations shall not enjoy the rights of a legal entity.”62 Institutions of the hierarchy were effectively controlled by the state (as in the case of the Russian Orthodox Church) or were not recognized at all.63 Religious associations were not permitted to conduct activities other than those identified by the state as purely religious in nature.64 This basic regime pertained from the Bolshevik Revolution until the reforms of the Gorbachev era. There were some periods in which state restriction and control of religious institutions lessened to some degree, particularly toward the end of the Second World War, but these changes were always on a de facto, rather than de jure basis and subject to change at the whim of state authorities. Manipulation of the rights and powers of religious institutions was just one in an arsenal of weapons that the Soviets employed to restrict and diminish the religious freedom of its citizens. Current practices in Spain and Italy are examples of more flexible systems of recognition that operate to provide different rights and privileges to different religious communities through different laws and agreements (while at the same time, at least in principle, maintaining the right to religious freedom for all).65 A detailed analysis of these systems is beyond the scope of this essay, although aspects of the Spanish system will be addressed in a later section. One prominent feature of the Spanish and Italian systems is the use of negotiated agreements between the state and umbrella federations of religious institutions, with many of the federations being formed for the purpose of concluding and ad-

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ministrating the agreements.66 In the most general terms, these agreements provide for various benefits and privileges, and are modeled to some extent on agreements in both of these countries with the Holy See that govern relations between the state and the Catholic Church.67 However, the various federated communities that are parties to these negotiated agreements are not all organized in as hierarchical a fashion as the Catholic Church. The pertinent point to this discussion is that the negotiation partners of the state on these agreements have been broad federations of particular religions or denominations. Many of the privileges and benefits provided in the agreements are available only to member groups of the federations. For example, in the Spanish agreement with the Islamic Commission of Spain, Article 1 provides: “The rights and obligations deriving from the Act adopting the present Agreement shall be applicable to the Islamic Communities which . . . are or subsequently become members of the Islamic Commission of Spain or one of the Islamic Federations registered as belonging to such Commission.”68 The federated entity that signed the agreement, rather than the individual congregation, is empowered to choose the personnel and determine the content of religious worship and instruction provided in the state schools, prisons, hospitals, and other public institutions.69 These significant benefits are unavailable either to those communities that have not negotiated an agreement with the state, or to those institutions that are unwilling or unable to form or join these umbrella associations. Thus, the benefits are not necessarily equally available to all communities, and one basis of the differential treatment is membership in these umbrella associations. Moreover, the structure of these systems makes it difficult for the state to review situations where individual institutions or congregations have been unable to join, have been denied membership in, or have been removed from, the federations. Principles of religious freedom may prevent the state from reviewing membership decisions of the federations, particularly when those decisions are purportedly based on differences over religious dogma, practice, or law. Politics or prudence may also insulate membership decisions based on other factors. In sum, choosing the federation as the locus of whatever privileges have been granted to particular religious communities brings with it the danger of differential treatment, and possibly discrimination, according to differences in institutional structures and arrangements between various religious groups.

d. state recognition as a means of ensuring the right to freedom of religion The state may grant to a religious community in its corporate or institutional form a variety of powers that are considered to be essential basic elements of

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the right to freedom of religion. These include an effective legal personality; the ability to hold property and make contracts; the ability to maintain places of worship, instructional facilities for clergy, and private educational facilities for children; the ability to print and publish religious works; the ability to solicit donations; the ability to organize and operate according to religious doctrine without control or interference from the state; the ability to maintain foreign contacts and receive foreign financial assistance and personnel; and the ability to disseminate the community’s message and seek converts.70 The state may seek to ensure the exercise of these freedoms and powers through general laws that cover religious institutions as well as other institutions and associations, through special laws only for religious institutions, or through laws and agreements for individual religious communities. In many states a combination of these mechanisms is used. At this level of decisionmaking some states distinguish among groups in order to determine which ones will be granted the powers listed above. A variety of pressures inform this decision. First, states may deny or limit basic organizational powers or freedoms of particular groups and seek to justify those decisions on the grounds of certain overriding state interests. This pressure falls hardest on those groups that are considered new, unusual, or who profess beliefs different from or in conflict with the dominant or traditional groups. Moreover, there may be pressure on the state from the dominant religious group not to recognize groups that have left or broken off from it. Second, in some states recognition of these basic powers and freedoms may be considered a form of endorsement or approval. In this way the European practice differs from the modern practice in the United States, where the barriers to obtaining a corporate form and basic corporate powers are low, and the government exercises limited discretion in this decision. The attitude of endorsement may put additional pressure on states to examine the religious merits of particular groups. This is particularly true when state laws and regulations require a decision as to whether a group is “religious” or engages in “religious worship” or the like.71 The basic question at this stage of state recognition—expressed in terms of equality and discrimination—is whether different religious communities are essentially the same for the purpose of obtaining the powers and freedoms essential to exercising the right to religious freedom or are different enough— according to objective and reasonable criteria—to merit different treatment. This decision is an extremely sensitive one,72 but the state has the duty to make it. As the European Court recognized in the Manoussakis case, “[s]tates are entitled to verify whether a movement or association carries on, ostensibly in pursuit of religious aims, activities which are harmful to the population.”73 However, the Court also noted that what is at stake when examining the per-

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missible limitations to the right of freedom of religion is “the need to secure true religious pluralism, an inherent feature of the notion of a democratic society.”74 Although it is not clear exactly what the Court meant by the word “true,” one possible reading is that it was referring to something more than just the existence of a number of different religious faiths in a particular state. The Court may have been referring to a regulatory and social climate under which all faiths can operate to the best of their abilities, particularly in relation to government interference with the freedom to manifest religious belief as a result of the presence of a dominant religious group. The limitations provisions in Article 18.3 of the ICCPR and Article 9.2 of the European Convention are the best guide to objective criteria on which to base a decision to limit the powers or freedoms of a religious group. They provide that manifestations of religion or belief can be limited only in furtherance of the protection of public safety, order, health, or morals or the fundamental rights and freedoms of others. There are, however, a number of discriminatory dangers in the application of these limits.75 First and foremost, the state should not create distinctions based on what it believes to be the legitimacy or validity of religious beliefs. As the European Court stated in Manoussakis: “The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.”76 Second, limitations on the manifestation of religious beliefs are best applied directly to the conduct deemed to be contrary to the state’s interests, rather than in the form of prohibitions or prior restraints on the ability of a community to organize itself into institutions or to engage in religious activities.77 Third, limitations made in pursuit of the protection of public order should not in fact protect intolerance. In the Manoussakis case, a group of Jehovah’s Witnesses claimed that the Greek government was refusing to grant the permission required by Greek law in order to operate a place of worship. The government defended the requirement of prior authorization as necessary to protect public order.78 They also argued that any conception of the protection of public order in Greece must take into account the facts that an overwhelming proportion of the population is Greek Orthodox and that the Greek Orthodox Church has played a central role in the “national conscience” and in patriotic Greek history.79 This argument raised the possibility that an action squarely within the parameters of the manifestation of religious beliefs—such as operating a place of worship—taken by a group other than the Orthodox Church might implicate the state’s concern for public order, whereas the same action undertaken by the Orthodox Church would raise no such concern. The Court did not openly address this argument, but dealt with the public order issue on narrower grounds.80 Judge Martens, in his concurring opinion,

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took up the Greek government’s argument more directly, stating that “public order arguments may easily disguise intolerance” and these questions are “all the more sensitive when there is an official state religion.”81 Certain groups may threaten public order simply by virtue of being visible, successful, or different. This may be true as a matter of fact. The Manoussakis case provides at least some recognition, however, that by condoning differential treatment—that is, the restriction of activities only when performed by certain groups—in recognition of this fact, the state would be giving effect through law to the very intolerance and prejudice that stand at the root of the discrimination that they are obligated to eliminate.82 Fourth, as recognized by the Human Rights Committee, limitations on religious freedom to protect public morals should not be used to legislate the doctrine of one particular religious group into the law of the entire state.83 Another broad area of pressure with respect to the state’s recognition of the ability of religious groups to exercise powers and freedoms basic to the right to religious freedom is pressure to recognize religious groups that already exist within a state, and at the same time restrict those groups that are seeking to establish themselves in a state. These latter groups typically are either made up substantially of foreign persons or are financed by related, foreign entities. The 1997 Russian law that restricts state recognition to those religious communities that were officially recognized during communist times is an example of this type of approach. A 1993 Ukrainian law more directly inhibits the religious activities of foreigners by restricting recognition to Ukrainian “citizens” only.84 Does the “foreignness” of a religious community raise any concerns that cannot be adequately addressed by regulation of all religious communities, without distinction between native and foreign? Certainly some of the resentment of foreign religious organizations stems from the confluence of the religious intolerance they espoused and the civil power they once possessed in some countries. Another concern may be foreign interference, through religious groups, with the internal political affairs of a state. Embedded in the concern over foreigners is also the notion of economic advantage. Given the vast discrepancy in wealth between many societies, foreigners operating in transitional or developing countries may have far greater economic means than the local inhabitants and their indigenous institutions. Regulation of the foreign source necessarily implicates the protection of the rights of noncitizens. As to this point, the state’s obligation to protect human rights generally runs to anyone subject to its jurisdiction regardless of their citizenship status.85 With very few exceptions, aliens present within a state should have the same rights as citizens.86 It is recognized, however, that foreigners do not have the right to enter any particular state.87 On the other hand, once a state has opened its doors to foreigners, it must comply, without discrimination, with its obligation to protect human rights.88 Restrictions that are tar-

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geted at foreign organizations, such as in Ukraine, or restrictions intended by their terms to fall heavily on foreigners, such as in Russia, must be carefully scrutinized to ensure that they are based on a legitimate aim and that they set out reasonable and objective criteria in pursuit of that aim. In particular, in the case of restrictions on foreign institutions, it is important to identify policies based on such subjective interests as (1) the disapproval of the religious message that foreigners seek to spread (either because it is new to the native territory or may conflict with the message of native religious groups) or (2) the desire to maintain a particular pattern of religious adherence. These considerations, divorced from any of the specifically mentioned grounds for limitations on rights to freedom of religion or expression, impermissibly favor some religions over others. As a final matter, it is important to carefully distinguish between economic advantage as between religious groups “competing” for adherents, and an economic advantage that any one individual may have over another. In sum, the state’s role in recognizing religious institutions consistent with international human rights standards at this basic level is to facilitate religious freedom and should be kept distinct from any aspect of state support or endorsement. The state should be allowed to enforce only narrowly and strictly construed limitations on the right to religious freedom, and such limitations should not be applied in a differential manner. For instance, restrictions for the purpose of protecting public order should not include the protection of intolerance. Most importantly, differential treatment cannot be based on a hierarchy of the validity, legitimacy, or value of religious beliefs.

e. state recognition to provide support to religious communities 1. types of state support for religious communities In a state that seeks to support the activities of religious communities through the provision of financial benefits or the recognition of certain privileges and exemptions, there will inevitably be a differentiation between those religious communities that are chosen to receive support and those that are not. In other words, in any system of support, the state must separate those religious groups that will receive some form of support from the pool of those that have state approval to exist and operate at the basic level of religious freedom. There are a variety of different types of support, privilege or exemption that states provide to religious communities. The most significant of these include: 1.

direct financial support to religious institutions from the state budget to defray the costs of religious activities and personnel;

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2. 3.

4.

5.

6.

7. 8. 9.

a tax levied and collected by the state against members of particular denominations; financial support for private religiously affiliated primary and secondary schools, departments of theology at public universities, and private institutions of clerical education; financial support for the repair and maintenance of religious structures and other sites that have significant religious, historical, or cultural value. access to public primary and secondary schools to conduct religious worship and provide religious instruction; in some circumstances the state will employ the teachers of religious instruction, but the religious community will be responsible for selecting the teachers and approving the curriculum; access to persons in public institutions, such as prisons, military installations, and hospitals and other medical institutions; in addition, the state will sometimes employ religious personnel to conduct worship services and provide spiritual guidance and counseling in these institutions; recognition of the confidentiality of communications with clergy; exemption for religious institutions from property, income, and other taxes; exemption for certain religious personnel from military service (and sometimes alternative civil service).

Some communities that meet the state’s criteria to exercise the powers and freedoms discussed in the prior section may still be denied support. Whether this decision is made on logistical, cultural, ecclesiastical, or political grounds (or some combination thereof), the decision to support carries with it a stamp of state endorsement or approval (as well as the necessity for state oversight) to a much greater extent than the decision to recognize a religious community for the purposes of providing for the right to freedom of religion. Decisions of this kind are especially controversial when the privileges granted include access to the state’s financial resources, or to schoolchildren and others under its care or control. However, the question remains under what circumstances is this differential treatment impermissible discrimination in terms of international human rights law. The level of controversy involved in the decision to grant privileges to a religious community will vary according to the particular community at issue. In light of the historical practice of limited recognition of religious communities in many European states, the decision to provide support is typically not one of establishing criteria in the abstract. Rather, the decision will typically

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be which communities, in addition to the traditional or dominant one(s) (already receiving state support) will be given support and how should the levels of support compare. Providing support under these circumstances evokes an inevitable comparison of value between the religious communities involved. It is important to recognize that where there is only one level of recognition by the state—in other words, where the state makes no distinction between granting basic functional powers and providing support or privileges—all of the concerns raised in the prior discussion will be prevalent, only more so. This is because the decision to allow operation, if it automatically brings to bear state resources and at least some element of state endorsement, will be more important for the state than if the two decisions were left separate.89 However, once religious communities have been recognized for the purposes of granting the necessities of religious freedom, what reasonable or objective criteria could possibly be brought to bear on the decision of granting support or privileges?

2. international supervision of differential treatment of religious communities The decision to provide benefits or privileges to religious communities beyond what is necessary to ensure the right to freedom of religion is nevertheless subject to the anti-discrimination provisions of the ICCPR and the European Convention. This principle is evident from cases involving both conscientious objection to military service and tax exemption. The ICCPR does not require— as a component of the obligation to ensure the right to freedom of religion— that a state provide for conscientious objection to military service on the basis of a conflicting religious belief.90 If a state chooses to provide for a scheme of exemption from military service, however, differential treatment of applicants on the basis of religious belief or affiliation with a particular religious community triggers the state’s obligation to provide for equal protection of the law under Article 26.91 In Brinkhof v. the Netherlands,92 the Human Rights Committee considered a complaint by a pacifist who challenged the Dutch system of conscientious objection. In this system the members of the Jehovah’s Witness community were exempt from both military and alternative civil service but for all other objectors it was only possible to be exempt from military service.93 Verification of membership in good standing in the Jehovah’s Witness community was required in order to qualify for the total exemption. The Committee determined that in finding there was no violation of the ICCPR because the author’s pacifist convictions were not incompatible with substitute civilian service, he had not

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shown “that the privileged treatment accorded to Jehovah’s Witnesses adversely affected his rights as a conscientious objector against military service.”94 Thus, the Committee did not decide the discrimination claim raised by the author. However, the Committee did note “the exemption of only one group of conscientious objectors [from alternative civilian service] and the inapplicability of exemption for all others cannot be considered reasonable.”95 The Dutch system did not treat those with similar beliefs the same. Jehovah’s Witnesses with genuine religious beliefs objecting to both military and substitute service were exempt, while all others holding similar beliefs were not. Apparently, the only mechanism used to determine eligibility for total exemption is membership in one particular group. Such a situation is clearly discriminatory as the criteria used are neither objective (i.e., in that it covers membership in only one group) nor reasonable (i.e., in that it fails to recognize all those persons holding sincere beliefs objecting to both military and civilian service.) As discussed above, there is no specific obligation under the European Convention to provide for the equal protection of the law in general or to protect the rights of religious minorities. However, Article 14 prohibits discrimination in those situations where the subject matter of the asserted violation “fall[s] within the scope” of Article 9 (protecting the right to freedom of religion) or some other provision of the Convention. In at least three cases, the Commission has entertained claims that a state has violated Article 14 as a result of alleged differential treatment with respect to conscientious objection to military service and tax exemption, both of which the Commission had determined not to be requirements of the right to freedom of religion.96 In none of these cases, however, has the Commission found a violation of Article 14. Significantly, in a case similar to Brinkhof, the European Commission appears to have reached a different conclusion. In a 1984 decision, N. v. Sweden,97 the applicant made a claim that the regulations governing conscientious objection from military service in Sweden were discriminatory. As in Brinkhof, membership in the Jehovah’s Witness community was the criterion used to grant exemption from both military and civilian service. The Commission rejected the discrimination claim because it considered membership in the Jehovah’s Witnesses sufficient to show that the objection was sincere. The Commission noted, however, that although the exemption had been applied only to Jehovah’s Witnesses, the law itself was applicable to “other religious sects having similar views.”98 In this respect, the Swedish system was different from that of the Netherlands at issue in Brinkhof, where only Jehovah’s Witnesses were eligible for complete exemption. The Swedish system appears to treat differently those persons who have sincere beliefs that are “verifiable” by membership in a religious community, and those persons with equally sincere beliefs that are not verifiable in the same fashion. The Commission did not consider this form of differential treatment as potentially discriminatory.99

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3. differential treatment in state support of religious communities There are a number of differential treatment issues associated with this area of decisionmaking. Different groups may be granted different privileges or, in the area of financial support, different levels of support may be provided. Each area needs to be examined in its own particulars. Certain concerns are important with respect to certain privileges. For example, with respect to granting tax exemption, it becomes important for the state to identify those groups that are essentially commercial enterprises.100 Also, with respect to access to public broadcasting or provision of religious instruction in the public schools, it is important to identify groups that are essentially political, rather than religious, in nature. Examples of some of the criteria used to separate those groups receiving state support from those that do not include (1) the geographical distribution of the group, (2) the number of adherents of the group, (3) the length of time the group has been in existence in the state and (4) the number of adherents that are citizens of the group (occasionally the head of the group must be a citizen of the state). While some systems of recognition employ criteria specified in law, some systems employ less clear criteria. For example, in Spain a basic law, the 1980 Religious Liberty Law, sets out the conditions for the recognition of religious institutions to operate. The law also provides that certain religious groups may be eligible to negotiate agreements with the state to attain various rights and privileges similar to those accorded to the Catholic Church. The criteria stated in the law reserves this privilege, for those religious groups “that by reason of the ambit and number of believers have reached notorious radication in Spain.”101 The European Commission considered a complaint based on the Spanish system of recognition in Moratilla v. Spain.102 An evangelical Protestant church registered as a religious association under the 1980 Religious Liberty Law claimed that the refusal to grant a property tax exemption for their place of worship violated Article 14 of the European Convention. The applicants compared themselves to the Catholic Church, which enjoyed a property tax exemption granted by a 1979 agreement between Spain and the Holy See.103 Although the Commission did note the possibility of the applicant obtaining tax exemption through concluding a direct agreement with the state, it did not address the potentially discriminatory nature of the criteria (or the application of that criteria) under the Religious Liberty Law, which could prevent a group from negotiating such an agreement.104 There was no evidence that the applicant had sought to negotiate an agreement. Rather than comparing the applicant with other groups that had negotiated agreements with the state, the Com-

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mission limited itself to a narrow comparison between the applicant and the Catholic Church. It apparently considered the Church’s obligation “to place its historical, artistic and documentary heritage at the service of the Spanish people”105 as a suitably reasonable and objective reason on which to justify the grant of property tax exemption to the Catholic Church but not to the applicant.106 This reasoning appears to be somewhat limited given the obligation to prevent discrimination contained in Article 14 of the Convention. Another example of vague or ambiguous standards and their potentially discriminatory usage is the 1990 Hungarian Law on the Freedom of Conscience and Religion.107 This law permits Parliament to provide financial support for registered religious organizations, but provides no criteria for such a Parliamentary decision. A recent Parliamentary appropriation that did not include funds for a number of registered organizations was challenged on the grounds that it violated the anti-discrimination provisions of the Hungarian Constitution.108 The claim was apparently rejected based on issues of judicial review rather than on the merits of the discrimination claim.109 Both of these examples highlight the problems of discretionary application of vague or nonexistent standards. But even if the standards are objective, a primary equality question remains: are the criteria used in pursuit of a legitimate aim and are they reasonable given that purpose. As with the decision regarding religious freedom, the criteria used to distinguish among groups that receive support and those that do not must not be based on an assessment by the state of the desirability or the validity of the religious beliefs of the group or of the group itself. In a democratic state based on the freedom of individual conscience, that outcome is not a legitimate public purpose. This is regardless of whether the state seeks to accomplish this purpose directly or through the manipulation of otherwise “objective” criteria.

4. state action to support religion in general The support of religion and religious activity is a legitimate state aim under the ICCPR and the European Convention. As discussed above, with respect to religious minorities, such support may, under certain circumstances, even be required of states. But pursuit of that end does not by itself provide for any real distinctions between religious groups. If the purpose of religious freedom is to facilitate individual choice, than the aim of supporting religion encompasses at least the support of people in the choices that they have actually made. For this reason, as well as for administrative feasibility, such criteria as a certain minimum number of adherents and possibly even minimum geographical distribution requirements can be reasonable for some privileges. Using the criteria of the number of adherents, or possibly the number of congregations,

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as a method of distributing financial benefits would also be reasonable. Finally, the state may have some legitimate discretion in devoting its resources to support the religious decisions of its citizens, and therefore minimum limits on indigenous adherents, or only counting indigenous adherents in the calculation of financial support may be reasonable as well. The important points here are (1) that the state scheme should be flexible enough to absorb what will be the changing scope and nature of religious beliefs in a society, and (2) that the state not manipulate the criteria to impact negatively a particular group or groups. This leads to what are perhaps the two most difficult problems in this area. First, what actions can be taken to preserve a dominant or traditional religious identity of a state or of a region of a state? Second, what actions can be taken as compensation for past discrimination by the state?

5. state action to protect a dominant religious identity In a system where the state supports all religions on an equal basis, the dominant religion will receive the bulk of the support by virtue of superior numbers. Also, many states have programs of financial support for significant cultural and historical monuments and other cultural resources. These programs will include funds for the repair and maintenance of religious buildings, sites of religious significance and pilgrimage. Naturally, the disproportionate share of such funds will be allotted to the traditional religion, and will in one sense serve to perpetuate the significance of that religion. Such schemes, even though they maintain a form of differential treatment, do not appear to raise discrimination problems, at least as long as the cultural and historical roles of religious minorities are kept in view as well. Outside of the specific area of the preservation of cultural assets, action taken to perpetuate a dominant religious identity can support only the most superficial and ceremonial differentiations. As stated earlier, the bulk of this work can be done through a system of support for all religions on an equal—for instance numerical—basis and the fact that the majority of the inhabitants will identify themselves as members of the dominant faith. Any further differential support of the dominant religion goes beyond the recognition of the role of the group and may seek to influence religious choice or even indoctrinate citizens in a particular faith.110 In particular, preservation of the dominant religious identity at the cost of individual choice is inconsistent with the notion of a religiouslyplural democratic society. This is especially true of attempts to influence religious choice by limiting it to groups that are indigenous rather than foreign. Therefore, criteria in relation to this purpose, such as the percentage of foreign involvement in a religious community or the length of time that a group has been operating in a state, appear to be at best irrelevant (and at worst, subterfuge) to the decision to provide support or privileges.

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6. state action to compensate for past discrimination A very difficult issue in systems of state support for religious communities is differential treatment caused by schemes of “compensation” for past discrimination or persecution. Such schemes exist or are planned in many of the former communist states of Eastern Europe. It is abundantly clear that religious believers and their institutions were suppressed and purposely placed in an inferior position in relation to nonbelievers in almost all communist countries. Of course, in this general climate of oppression some groups were treated better or worse than others. However, this history has left many religious communities without property, without funds, and without a pattern of adequate financial support from either the state or the faithful. This distinction will play an important role in determining the return of religious property and state financial support for the repair and restoration of property damaged or destroyed during the communist period. By definition, this compensation will encompass historical indigenous groups rather than new or foreign ones. The great difficulty in this situation, given the complicated and varied histories of repression and past discrimination, will be the development of objective criteria for the administration of such compensation schemes. Comparisons based on the level of persecution during the communist period between particular groups would seem to be quite difficult, and could be unnecessarily divisive. In terms of any analysis of differential treatment, it would be important that these schemes be temporary and concrete measures tailored to specific purposes, and that they do not constitute separate schemes of rights for different groups.111 One related issue is whether the current financial health of a religious community that is due to past discrimination and oppression is a suitable condition requiring the state to intervene using differential treatment in order to equalize the positions of some indigenous groups to that of other groups (i.e., new and foreign ones). The obvious point is made that equality in rights such as religious freedom is an illusory benefit without the financial ability to exercise those rights. This is a tricky question because on the one hand, if a group’s inability to be able to exercise their rights is due to some external force, such as a state’s interference with their ability to raise money and support themselves or even the poverty of their members, there would seem to be no significant connection between the financial condition and right in question. Therefore, a state may be obligated to intervene in such a situation. On the other hand, if the group’s inability to operate stemmed from its inability to attract members or financial support, there would be a connection between the two. In the latter case, differential treatment could not be supported because groups able to support themselves and groups unable to support themselves, by virtue of their own attributes,

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are not significantly different for the purposes of exercising religious freedom in a democratic society based on free choice.

VI. C ONC LUSION Differential treatment in state recognition of religious communities represents an important subset of problems in discrimination on the basis of religion. Recognition, in many cases, is necessary in order to ensure that persons belonging to religious communities can exercise their right to freedom of religion. Recognition can also bring with it substantial benefits (including financial benefits) and privileges. Why one religious community is granted these rights or privileges and another is not is an important question that implicates a state’s international responsibilities to ensure the right to freedom of religion and prohibit discrimination on the basis of religion. Often, the answer to that question may be steeped in the historical and cultural relations between groups of people in a particular society. Nevertheless, if the religious identity and beliefs of an individual are considered to be irrelevant to the ability to exercise rights and the receipt of privileges and immunities (as race or ethnicity is generally accepted to be in international practice and sex may someday soon be so), then differential treatment of religious communities in circumstances of state recognition must be justified in accordance with the general principles of equality and nondiscrimination in international human rights law. Of course, the preceding statement is only the first step of the analysis. This essay has attempted to give some preliminary observations helpful to the kind of case-by-case analysis that will be necessary to determine under what circumstances differential treatment is also discriminatory treatment and how universal international standards may be constructed in this area.

endnotes 1. The primary exceptions to this proposition are international instruments of an Islamic character, such as the Cairo Declaration on Human Rights in Islam and the Arab Charter on Human Rights. 2. See Restatement of the Foreign Relations Law of the United States (Revised) (“Restatement”) § 702 cmt. j (1986). “There is as yet no convention on the elimination of religious discrimination, and there has been no concerted attack on such discrimination comparable to that on apartheid.” 3. This may be changing in the United States. In 1998, Congress passed the International Religious Freedom Act that gives the President authority to impose economic sanctions and other penalties on nations that promote or permit violence and other extreme forms of persecution on the basis of religion. See further Danchin, chapter 4 in this volume, at n. 129ff. and accompanying text.

118 ta d s ta hnke 4. This essay will draw primarily on the developing body of international human rights law in the work of the Human Rights Committee (“Human Rights Committee” or “Committee”) under the International Covenant on Civil and Political Rights (the “ICCPR”), UNGA Res. 2200A (XXI), 21 UN GAOR Supp (No. 16) 52, UN Doc. A/ 6316 (1966); and the reports and decisions of the human rights tribunals of the Council of Europe, the European Court of Human Rights (“European Court”) and the European Commission of Human Rights (“European Commission,” together the “European Bodies”) under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention”), European Treaty Series No. 5 (1950). 5. See Albert Boiter, Law and Religion in the Soviet Union, 35 Am. J. of Comp. L. 97–126 (1987) in respect of granting religious freedom to all confessions in 1917 by the post-tsarist Provisional Government in Russia. 6. See Grandrath v. Federal Republic of Germany, App. No. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626 (Comm. Ministers) (1967). 7. Art. 1.3 of the Charter of the United Nations provides that one of the purposes of the United Nations is to “achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” See also Art. 55—“The United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” The International Court of Justice has stated that for a state “to establish [and] enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the [U.N.] Charter.” Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 4, 56–7 (26 January). The Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N Doc A/810 71(1948), provides for the guarantee of rights without discrimination of any kind, the equal rights of men and women, and the equal protection of the law. Similar provisions are contained in the ICCPR and the International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 A (XXI), 21 UN GAOR Supp. (No. 16) 49, U.N Doc. A/6316 (1966). Judge Tanaka of the International Court of Justice in his dissenting opinion in the South-West Africa Cases considered the principle of nondiscrimination to be part of customary international law and the general principles of law recognized by civilized nations. See South-West Africa (Ethiopia v. South Africa) [1966] ICJ 6, 293, 297–8 (July 18) (Tanaka, J., dissenting). See also Restatement 702 & cmts. i, j and l (1986) (systematic state policy of racial discrimination is a violation of customary international law; there is “a strong case” that systematic discrimination on the grounds of religion as a matter of state policy is also a violation of customary international law; “freedom from gender discrimination as state policy, in many matters, may already be a principle of customary international law.”) 8. See Communication No. 172/1984, S.W.M. Broeks v. The Netherlands (views adopted April 9, 1987) para. 12.3 (applying Art. 26 to social security legislation outside

Equality and Religious Preferences 119 the purview of any of the other rights specified in the ICCPR), reprinted in 1987, Volume II 293, 297; Human Rights Committee, General Comment No. 18 (37) on Non-discrimination (adopted 9 November 1989), U.N. Doc. HRI\GEN\1\REV.1 26 (1994). CCPR/C/21/Rev.1/Add.2,M, para. 12, reprinted in 1989–90, Volume II 377 (“General Comment on Non-discrimination”). 9. See Belgium v. Marcckx, 31 Eur. Ct. H.R. (ser. A) 15–16 (1979); Inze v. Austria, 126 Eur. Ct. H.R. (ser. A) 17 (1987). This relationship is established when a state enacts measures that go beyond the minimum requirements of specified rights, see Belgian Linguistics Cases 4 Eur. Ct. H.R. (ser. A) (1968) (suggesting that state provision of education in multiple languages beyond the requirements of the right to education protected under Art. 2 still subject to provisions of Art. 14). The relationship may also be established when the state seeks to justify limitations on specified rights. See e.g., Grandrath v. Federal Republic of Germany, App. No. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626, 678 (Comm. Ministers) (1967) (limitation on right to be free from forced labor protected under Art. 4.3(b)) “It is as though [Art. 14] formed an integral part of each of the Art’s laying down rights and freedoms.” Belgian Linguistics Case, para. 9. For more on the debate behind this issue, see E.W. Vierdag, The Concept of Discrimination in International Law 71–4, 113–20 (The Hague: Martinus Nijhoff, 1973). 10. In its General Comment on Non-discrimination, above n. 8, the Human Rights Committee has suggested the following definition under the ICCPR: ‘Discrimination’ should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. 11. See Communication No. 172/1984, S.W.M. Broeks v. The Netherlands para. 13 (views adopted April 9, 1987), reprinted in 1987, Volume II 293, 297. See also General Comment on Non-discrimination para. 13 (“[T]he Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”) The European Court has come to a similar conclusion: “[T]he principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration. . . . A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Art. 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.” Belgian Linguistics Cases, 4 Eur. Ct. H.R. (ser. A) para. 10 (1968). 12. Other examples of this type of provision include Art. 1.4 of the Race Convention (special measures taken to ensure that certain racial and ethnic groups can enjoy freedoms or exercise rights on an equal basis are not discrimination on the basis of race); Art. 5(a) and (b) of the ILO Convention No. 111 on Discrimination in Employment; and Art. 4 of the Women’s Convention (special measures taken to “accelerat[e]

120 ta d s ta hnke de facto equality between men and women” are not discrimination on the basis of sex). See also General Comment on Non-discrimination para. 10 (state action needed to correct “discrimination in fact . . . is a case of legitimate differentiation under the Covenant.”) 13. See General Comment on Non-discrimination para. 10. See also, Art. 2.2 of the Race Convention (states required to take special measures to ensure the “full and equal enjoyment of human rights and fundamental freedoms”). Judge Tanaka of the International Court of Justice has stated: “To treat unequal matters differently according to their inequality is not only permitted but required. The issue is whether the difference exists. Accordingly, not every different treatment can be justified by the existence of differences, but only such as corresponds to the differences themselves, namely that which is called for by the idea of justice.” South-West Africa (Ethiopia v. South Africa), 1966 I.C.J. 293, 306 (July 18) (Tanaka, J., dissenting). 14. See Vierdag, above n. 9. 15. See General Comment No. 23(50) on Art. 27 (adopted April 6, 1994), UN Doc. HRI\GEN\1\REV.1 38 (1994) 6.2. 16. Ibid. 17. See General Comment on Art. 27, para. 6.2 (“positive measures by states may also be necessary to protect the identity of a minority.”) 18. Cf. Communication, No’s. 359/1989 and 385/1989, Ballantyne v. Canada (views adopted March 31, 1993) para. 11.4, reprinted in UN Doc. A/48/40 91 (rejecting argument that limitation on the right to freedom of expression through Quebec law prohibiting use of the English language in commercial signs was necessary in order to protect the French-speaking linguistic minority because the prohibition was not considered a necessary or particularly effective method of protection). 19. See Communication No. 167/1984, Ominayak v. Canada (views adopted on March 26, 1990) paras.32.2, 33, reprinted in 1989–90 Volume II 381 (state development plans that threaten to destroy subsistence patterns of Canadian Indian group violated the right “to engage in economic and social activities which are part of the culture of the community to which they belong” and which were protected under Art. 27). This could raise troubling issues for religious minorities if their existence is based on personal choice rather than national or ethnic difference. 20. See Communication No. 24/1977, Lovelace v. Canada (views adopted July 30, 1981) 15, reprinted in 1981–82 Volume II 320 (national law that deprived author of her right to remain on tribal reserve violated her right under Art. 27 to access to her native culture and language in community with others because the reserve was the only place she could have access to those things). 21. There is no provision specifically devoted to minority rights in the European Convention, although “association with a national minority” is a ground of discrimination prohibited under Art. 14. Art. 8.3 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN GA Res. 47/135, 47 UN GAOR Supp. (No.49) 210, UN Doc. A/47/49 (1992) (“Minorities Declaration”) provides that “[m]easures taken by States to ensure the effective enjoyment of the rights set forth in the present Declaration shall not prima facie be considered contrary to the principle of equality contained in the Universal Declaration of Human

Equality and Religious Preferences 121 Rights.” The Minorities Declaration does not, however, contain any positive obligation on states to take such special measures. Under Art. 4 of the Framework Convention for the Protection of National Minorities adopted by the Council of Europe, European Treaty Series No. 157 (1995), states “undertake to adopt, where necessary, adequate measures in order to promote . . . full and effective equality between persons belonging to a national minority and those belonging to the majority.” Art. 4.2. Such special measures are not discrimination. Art. 4.3. See also CSCE Copenhagen Document para. 33. 22. Depending upon the forum, claims may be entertained either from individuals or from a religious organization on behalf of its members. Only individuals can submit communications claiming violations of the ICCPR to the Human Rights Committee. See Art. 1 of the Optional Protocol to the International Covenant on Civil and Political Rights, GA res. 2200A(XXI), 21 UN GAOR Supp. (No.16) 59, UN Doc. A/6316 (1966); and Communication No. 163/1984, Group of associations for the defense of the rights of disabled and handicapped persons in Italy v. Italy, para. 5 (decision adopted April 10, 1984), reprinted in 1983–84, Volume II 642, 643. An individual must show that an action affecting a religious organization has violated a right of the individual under the Covenant. The European Commission has determined that “a church body is capable of possessing and exercising [the right to freedom of thought, conscience and religion] in its own capacity as a representative of its members.” X. and Church of Scientology v. Sweden, App. No. 7805/77, 16 Eur. Comm. H.R. Dec. & Rep. 68 (1979). This has been extended to cover associations with religious and philosophical objectives. See Sundstrom v. Finland, App. No. 29471/92, 85-A Eur. Comm. H.R. Dec. & Rep. 92, 94 (1996). 23. The right to freedom of religion is protected under Art. 18 of the ICCPR and Art. 9 of the European Convention. 24. See Manoussakis v. Greece, Eur. Ct. H.R. (1996). 25. See, e.g., Moratilla v. Spain, App. No. 17522/90, 72 Eur. Comm. H.R. Dec. & Rep. 256 (1992) (exemption from property taxation). 26. See Hoffmann v. Austria, 255 Eur. Ct. H.R. (ser. A) 45 (1993) (right to respect of family life protected by Art. 8 of the European Convention). 27. See Tsirlis and Kouloumpas v. Greece, App. Nos. 19233/91, 19234/91, Eur. Comm. H.R. (March 7, 1996), reprinted in 21 E.H.R.R. CD CD30. 28. See United Nations Human Rights Committee, General Comment No. 22 on Art. 18, UN Doc. HRI\GEN\1\REV.1, 35 (1994), 8 (“General Comment on Art. 18”) (“Limitations [on the freedom to manifest religion or belief] may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.”) For an example of this type of claim, see Grandrath v. Federal Republic of Germany, App. No. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626, 678 (Comm. Ministers) (1967) (limitation on right to be free from forced labor, i.e. military conscription, was applied to Jehovah’s Witness ministers but not to Lutheran ministers and Catholic priests who were granted conscientious objector status). 29. See Advisory Opinion No. 6, German Settlers in Poland, 1923 P.C.I.J. (ser. B)

122 ta d s ta hnke No. 6, 20 (September 10); Advisory Opinion No. 44, Treatment of Polish Nationals in Danzig, 1932 P.C.I.J. (ser. A/B) No. 44, 28 (February 4); Vierdag, above n. 9, 71–4. 30. See Communication No. 208/1986, K. Singh Bhinder v. Canada (views adopted November 9, 1989), reprinted in 1989–90, Volume II, 398 (differential impact on Sikhs from industrial safety rule requiring protective headgear); Employment Division v. Smith, 494 U.S. 872 (1990) (U.S. constitution does not require an exemption from a neutral rule of general application that burdens the free exercise of religion). 31. The Permanent Court of International Justice in interpreting an obligation that members of minorities should “enjoy the same treatment and security in law and in fact [as other citizens]” stated that “equality in fact may involve the necessity of different treatment to attain a result which establishes an equilibrium between different situations.” Advisory Opinion No. 64, Minority Schools in Albania, 1935 P.C.I.J. (ser. A/B) 17, 19 (April 6). The Court determined that the abolition of all private schools in Albania violated that country’s obligation to secure equal treatment in the right of private organizations to maintain schools even though the prohibition applied to everyone. The Court reasoned that private schools “are indispensable to enable the minority to enjoy the same treatment as the majority, not only in law but also in fact. The abolition of these institutions, which alone can satisfy the special requirements of the minority groups, and their replacement by government institutions, would destroy equality of treatment, for its effect would be to deprive the minority of the institutions appropriate to its needs, whereas the majority would continue to have them supplied in the institutions created by the State.” Id. 19–20. 32. Vierdag, above n. 9, 11. 33. Ibid. 7–8. But see also Weston, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982). 34. Dignitatis Humanae, Arts. 3 and 6. 35. Dignitatis Humanae, Art. 6. The Declaration on the Relationship of the Church to Non-Christian Religions (“Nostre Aetate”) declares the common origin of all men in the context of relations between Catholics and non-Christians, see id. para. 1, in Walter M. Abbott, (ed.), The Documents of Vatican II 660–61 (New York: Herder and Herder, 1966), and goes on to employ this concept to reject “any discrimination against men or harassment of them because of their race, color, condition of life, or religion.” Id. para. 5. 36. See Dignitatis Humanae, 6. “If, in view of peculiar circumstances obtaining among peoples, special civil recognition is given to one religious community in the constitutional order of society, it is at the same time imperative that the right of all citizens and religious communities to religious freedom should be recognized and made effective in practice.” See id. in Abbott, above n. 35, 685 fn. 17. 37. See John Courtney Murray, Religious Freedom in Abbott, above n. 35, 673. 38. See Abbott, above n. 35, 676 fn. 3. 39. Declaration on Religious Liberty, First Assembly of the World Council of Churches, Amsterdam, 1948, reprinted in Tad Stahnke and J. Paul Martin (eds.), Religion and Human Rights: Basic Documents 207 (New York: Columbia University Press, 1997). 40. Ibid.

Equality and Religious Preferences 123 41. Manifesto on Religious Freedom, adopted by the Seventh Baptist World Congress in Copenhagen on August 3, 1947, reprinted in Stahnke and Martin, above n. 39, 205. 42. Ibid. 43. See Paul Valliere, Russian Orthodoxy and Human Rights in Irene Bloom et al. (eds.), Religious Diversity and Human Rights 278, 306 (New York: Columbia University Press, 1996). 44. Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, UN Doc. E/CN.4/Sub.2/200/Rev.1, Sales No. 60.XIV.248 48 (1960) (“Krishnaswami Study”). 45. See Considerations of the reports of Iceland (State Evangelical-Lutheran Church), [1983–4, Volume I, 28; Volume II, 435]; Sweden (Church of Sweden), [1985– 6, Volume I, 336–38, Volume II, 463–4]; Finland (State Evangelical-Lutheran Church), [1985–86, Volume I, 361–2]. 46. Ibid. [1985–6, Volume I, 338]. 47. Ibid. 337–8. 48. Ibid. 338. 49. In this regard, the Committee makes no distinction between an established or state religious community and one that is “traditional” or “whose followers comprise the majority of the population.” See General Comment on Art. 18, para. 9. Each raises similar issues. 50. Ibid. para. 9. 51. Ibid. 52. Ibid. See also id. para. 11 (When the right to conscientious objection to military service “is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs.”) 53. “A State Church system cannot in itself be considered to violate Art. 9 of the Convention. . . . However, a State Church system must, in order to satisfy the requirements of Art. 9, include specific safeguards for the individual’s freedom of religion. In particular, no one may be forced to enter, or be prohibited from leaving, a State Church.” Darby Case, 187 Eur. Ct. H.R. (ser. A), Comm. Rep. Annex, 17–18, 48. In this case the Commission held that non-members of the Finnish Lutheran Church can not be taxed to support that church. The European Court did not address the violation of Art. 9 found by the Commission and disposed of the case on other grounds. 54. See Gottesmann v. Switzerland, App. No. 10616/83, 40 Eur. Comm. H.R. Dec. & Rep. 284 (1984) (church tax); E. & G.R. v. Austria, App. No. 9781/82, 37 Eur. Comm. H.R. Dec. & Rep. 42 (1984) (same); Hautaniemi v. Sweden, App. No. 24019/94, 85-A Eur. Comm. H.R. Dec. & Rep. 94 (liturgy requirements); X v. Denmark, App. No. 7374/76, 5 Eur. Comm. H.R. Dec. & Rep. 157, 158 (1976) (conditions of religious services). 55. See Francisco Forrest Martin et al., International Human Rights Law and Practice 139 (The Hague: Kluwer Law International, 1997). 56. See General Comment on Art. 18, para. 4; See also Religious Declaration, Art. 6(a) (right to establish and maintain places of worship and assembly); id. Art. 6(b) (right to establish charitable and humanitarian institutions); Minorities Declaration, Art. 2.4; Framework Convention, Art. 8; CSCE Copenhagen Document, para. 32.2.

124 ta d s ta hnke 57. See CSCE Vienna Document, principle 16(d) (States should “respect the right of religious communities to . . . organize themselves according to their own hierarchical and institutional structure”). See also Watson v. Jones, 80 U.S. (13 Wall.) 679, 729 (1872) (“The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned.”) 58. Krishnaswami Study, above n. 44, 42–3. 59. Boiter, above n. 5, 106, 109. 60. Ibid. 106. The 1918 Decree granted the right of citizens to “confess any religion” and “give and receive religious instruction privately.” Id. § 3, 9. It also provided for the “free performance of religious rites,” subject to limitations to protect public order and the rights of other Soviet citizens. Id. § 5. 61. Ibid. 108. 62. Groups of believers were allowed to use property only for the purposes of worship under contractual arrangements with local government entities. See 1929 Religious Associations Law, Arts. 27–33; Valliere, above n. 43, 285–6. 63. Boiter, above n. 5, 119. 64. Ibid. 119–20. 65. See generally Moran, The Spanish System of Church and State, 1995 B.Y.U. L. Rev. 535; S. Ferrari, The Emerging Pattern of Church and State in Western Europe: The Italian Model, 1995 B.Y.U. L. Rev. 421; Montserrat, The Constitutional Development of Religious Freedom in Spain: An Historical Analysis, 4 J. Transnat’l L. & Pol’y 27 (1995). 66. Spain has concluded agreements with the Federation of Evangelical Religious Entities of Spain, the Islamic Commission of Spain and the Federation of Israelite Communities of Spain. See Moran, above n. 65, 544. Italy has concluded agreements with the Waldensians, the Pentecostals and Adventists, Jews, and the Baptists and Lutherans. See Ferrari, above n. 65, 428–9. For an example of one of these agreements in English, see Cooperation Agreement Between the Spanish State and the Islamic Commission of Spain, reprinted in Stahnke and Martin, above n. 39, 248. 67. Excerpts from the four primary agreements between Spain and the Holy See (on general matters, legal affairs, education and cultural affairs, and economic affairs) can be found in Stahnke and Martin, above n. 39, 237. The 1985 Agreement Between the Italian Republic and the Holy See is reprinted in 24 I.L.M. 1589 (1985). 68. Stahnke and Martin, above n. 39, 249. 69. See Cooperation Agreement Between the Spanish State and the Islamic Commission of Spain, Arts. 10.2 & 10.3 (religious instruction in schools); Art. 8.3 (Islamic religious worship in the armed forces). 70. See General Comment on Art. 18 para. 4; Religious Declaration, Art. 6; Concluding Document of the Vienna Meeting of Representatives of the Participating States of the Conference on Security and Cooperation in Europe (1989), principle 16, reprinted in Stahnke and Martin, above n. 39, 154. Although these documents do not define all of these powers as necessarily corporate or institutional powers, many can

Equality and Religious Preferences 125 only be feasibly exercised in that form. In addition, at least under the European Convention, religious organizations can exercise rights on behalf of their members. 71. See Religious Liberty Law of Spain, B.O.E. no. 177, 24 July 1980, Art. 3.2 (protection of the law does not apply to any activity related to “psychic or parapsychological phenomenon” and the spread of “humanistic or spiritualistic values or other similar non-religious aims.”) 72. See General Comment on Art. 18, para. 2; see also Parliamentary Assembly of the Council of Europe, Recommendation 1178 (1992) on Sects and New Religious Movements, para. 5 (“[T]he freedom of conscience and religion guaranteed by Art. 9 of the European Convention on Human Rights makes major legislation on sects undesirable, since such legislation might well interfere with this fundamental right and harm traditional religions.”) 73. Manoussakis v. Greece, judgment of September 26, 1996, para. 40. 74. Ibid. para. 44. 75. “Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.” General Comment on Art. 18, para. 4. See also id. para. 2. (Human Rights Committee views with concern any discrimination against any religion or belief for the “fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community.”) 76. Ibid. para. 47. 77. Cf. Manoussakis (Martens, J., concurring) paras. 4–5. See also Parliamentary Assembly of the Council of Europe, Report on Sects and New Religious Movements (Doc. 6535: November 29, 1991) 9 (“Most of the activities of which certain sects are accused constitute common law offenses.”) 78. Manoussakis, para. 39. 79. Ibid. 80. The Court determined that the procedural mechanism employed by the state to determine if there really was an issue of public order was inadequate in this case. 81. Ibid. Concurring Opinion, para. 6. 82. In addition to obligations to prohibit discrimination, a number of human rights agreements have provisions that specifically address intolerance and incitement to hatred and discrimination. See ICCPR, Art. 20.2 (“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”) See also Race Convention, Art. 4 (protection against incitement to racial discrimination); Framework Convention, Art. 6.2 (protection for persons subject to threats and acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity); Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (1990) para. 40.2, reprinted in Stahnke and Martin, above n. 39, 157. 83. See General Comment on Art. 18, para. 8. 84. See Howard L. Biddulph, Religious Liberty and the Ukrainian State: Nationalism v. Equal Protection, B.Y.U. L. Rev. 321 (1995). 85. See Human Rights Committee, General Comment No. 15 (27), on the Position

126 ta d s ta hnke of Aliens Under the Covenant, U.N Doc. HRI\GEN\1\Rev.1, 18 (1994), paras. 2, 7 (The general rule is that each one of the rights of the Covenant [on Civil and Political Rights] must be guaranteed without discrimination between citizens and aliens;” with the exception of Art. 25 on political rights.) Id. para. 2. 86. Ibid. para. 2. 87. Ibid. para. 5. 88. To the extent that the foreign source may not even be present in the territory of the state, as, for example, where contacts and communications are made across borders, it should be noted that the right to freedom of expression includes the freedom to receive information “regardless of frontiers.” See Universal Declaration, Art. 19; ICCPR, Art. 19.2; European Convention, Art. 10.1; American Convention, Art. 13.1; Copenhagen Document, para. 9.1. Communications across borders has been recognized as particularly important in the case of religious groups maintaining contacts with hierarchical institutions located in a different state, and for religious minorities that are separated by international frontiers. See Declaration on Religious Intolerance, Art. 6.i; Minorities Declaration, Art. 2.5; Framework Convention, Art. 17.1; CSCE Copenhagen Document para. 32.4. 89. This differential is even evident in the United States, where the barriers for the institutions of a religious community are relatively low, but the criteria for the major form of state support for religious communities, corporate income tax exemption and the deductibility of contributions is somewhat greater (and has created constant controversy and much bad blood between religious communities and the Internal Revenue Service). See generally Charles M. Whelan, ‘Church’ in the Internal Revenue Code: The Definitional Problems, 45 Ford. L. Rev. 885 (1977). 90. See Communication No. 185/1984, L.T.K. v. Finland (decision adopted July 9, 1985) para. 5.2; General Comment on Art. 18, para. 11. 91. See Communication No. 295/1988, Aapo Jorvinen v. Finland (views adopted July 25, 1990) 6.1, 6.2, reprinted in 1989–90, Volume II, 417 . 92. Communication No. 402/1990, Brinkhof v. the Netherlands (views adopted July 27, 1993), reprinted in UN Doc. A/48/40, 124. 93. Ibid. para. 9.2. 94. Ibid. para. 9.3. 95. Ibid. 96. No. 20972/92, Rainen v. Finland (decision of March 7, 1996), 84-A D&R 17, 33 (1996) (conscientious objection); No. 10410/83, N. v. Sweden (decision of October 11, 1984), 40 D&R 203, 207 (same); No. 17522/90, Moratilla v. Spain (decision of January 11, 1992), 72 D&R 256, 261 (1992) (tax exemption). 97. No. 10410/83, N. v. Sweden (decision of October 11, 1984), 40 D&R 203. 98. Ibid. 207. 99. In a more recent decision, the Commission rejected a discrimination claim against the Finnish conscientious objection rules based on differential treatment with respect to Jehovah’s Witnesses. See Rainen v. Finland, App. No. 20972/92, 84-A Eur. Comm., H.R. Dec. & Rep. 17. Following their decision in N. v. Sweden, the Commission stated that membership in a religious community, which because of their structure and beliefs strongly indicated the sincerity of the individual’s objection, was

Equality and Religious Preferences 127 an objective and reasonable basis to support the differential treatment between the complainant and Jehovah’ Witnesses. Id. 33. It is unclear from the report whether the system in Finland was similar to Brinkhof, in that only Jehovah’s Witnesses qualified for total exemption, or more like the system in N. v. Sweden, where the law does not single out a particular group for special treatment. 100. The 1980 Religious Liberty Law is reprinted in Stahnke and Martin, above n. 39, 245. 101. Ibid. Art. 7. 102. No. 17522/90, Moratilla v. Spain (Comm.; January 11, 1992) 72 D & R 256 (1996). 103. Ibid. 260–1. The relevant provisions of the Agreement between the Spanish State and the Holy See of January 3, 1979 Concerning Economic Affairs are reprinted in Stahnke and Martin, above n. 39, 243. 104. Ibid. 261. 105. Ibid. 106. Ibid. 261–2. 107. § 19(2) of Act No. IV of 1990. 108. See Bala´zs Schanda, chapter 10 in this volume. 109. Ibid. 110. On prohibited state indoctrination under the European Convention, see Case of Kjeldsen, Busk Madsen and Pedersen, 23 Eur. Ct. H.Rts. (ser. A). para. 53. 111. Cf. Art. 1.4 of the Race Convention (special measures by states to ensure racial groups the full and equal enjoyment of rights “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”)

part 2 International Legal Perspectives

Chapter 4 e x t e r na l m oni t or i ng a nd t h e i n t e r n a t i o n a l p r o t e ct i on of f r e e do m o f r e l i g i o n or b e l i e f Peter G. Danchin

I. INTRODU CTION The origins of the concept of freedom of thought, conscience, and religion can be traced back to ancient sources, both legal and theological.1 As early as the thirteenth century, Aquinas argued that it was a duty of governments to uphold freedom of dissident religions before the law.2 The principles of freedom and tolerance and their relationship to political authority continued to evolve through the writings of theorists such as Sua´rez in the sixteenth century3 and Locke in the late seventeenth century.4 The translation of these ideas into national laws and practices has accordingly been a gradual process that has unfolded unevenly over the last five centuries. The protection of religious liberty in international law, however, did not occur until the modern era.5 Early international recognition of the concept can similarly be traced back in history, most commonly to the early sixteenth century. At that time European peace treaties and treaties between European states and the Ottoman Empire included limited protections for religious minorities. Later in the seventeenth century the 1648 Treaty of Westphalia granted religious rights to the Protestants in Germany and several other treaties incorporated clauses ensuring certain rights to individuals or groups with a religion different from that of the majority.6 But it was not until after the Second World War,

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and the failure of the League of Nations minority treaty regime, that the individual right to freedom of thought, conscience, and religion became enshrined in international law as part of the human rights regime created under the auspices of the United Nations. Today, it is universally accepted that religious freedom is a fundamental human right protected by customary and conventional international law.7 Article 18 of the International Covenant on Civil and Political Rights (the ICCPR) is stipulated as one of the core internationally recognized human rights which states parties may not derogate from even in times of public emergency. At the same time, it is widely recognized that a divide persists between states’ verbal assertions that they uphold the rights of individuals and their actual behavior. While the principle of religious liberty has been affirmed by virtually every national government as a part of its domestic law, the violations which the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the “1981 Declaration”)8 was designed to address remain evident in varying forms and degrees around the world. If indeed the implementation of UN standards, and in particular the 1981 Declaration, is of paramount importance,9 how might we narrow the distance between broadly accepted legal norms governing religious freedom and their repeated violation? While we are witnessing increasing interdependence, global awareness, and cooperation among states, nations, and groups (including strengthened interreligious relationships) we are at the same time continuing to witness violent interreligious conflicts, religious extremism, fundamentalism, and ethno-religious wars in many regions of the globe.10 The problem to be addressed then is how, against the background of intersecting cultures, belief systems, political ideologies, economic disparities, and deep-seated feelings of intolerance and mistrust, to improve and ensure effective international monitoring and protection of freedom of religion or belief. In addressing these questions, it is important to recognize the inchoate nature of the area of “religious human rights.” As David Little has observed: Investigating the “history, grounds, character, scope and efforts at implementation” of existing legal means for protecting religious interests and prohibiting religious bias is obviously a highly complex activity. And complexities increase when the variety of considerations involved in examining “the responses and evaluations of various religious communities and traditions regarding these same legal means” is figured in.11 In acknowledgment of this complexity, this essay attempts to identify the contours of these issues and to place them in the context of international human rights law, processes, and institutions. My approach is first to set out the general scope of the problem to be addressed and then to consider the possible range

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of responses that can be pursued, at local, regional, and international levels. In particular, I examine the evolving bilateral and multilateral mechanisms that currently exist to monitor and protect the international right to freedom of religion or belief. My objective in undertaking this review is to suggest strategies for bridging the gap between principle and practice. I suggest that, while there remains disagreement over international standards governing religious freedom, the standard-setting achievements of international actors and institutions have been a relative success. The more significant challenges lie ahead in seeking compliance with even minimally-agreed-upon standards. Many factors are relevant here, among them the politics as well as the architecture of new international institutions. That architecture requires ongoing evaluation and revision, for much of the effectiveness of international human rights depends on the degree to which norms are not free floating, but anchored in competent institutions that are committed to their implementation. On the question of compliance, I argue that regional and multilateral approaches are preferable to bilateral or unilateral attempts to monitor and enforce international standards of religious freedom. A state or groups of states may, of course, seek to monitor the behavior of another state and to exert pressure for that state to modify its behavior toward religious minorities. Such an approach has recently been followed in the United States with the enactment of the International Religious Freedom Act of 1998. The Act provides for the appointment of an Ambassador-at-large for Religious Freedom within the State Department and the creation of a Commission on International Religious Freedom charged with monitoring and identifying those countries that deny religious freedom and persecute religious groups.12 I suggest that this unilateral strategy of elevating and isolating religious freedom as part of U.S. foreign policy stands in an uneasy relationship with existing multilateral mechanisms and institutions that currently seek to monitor and protect religious freedom. In order to assess the relative merits of bilateral versus multilateral approaches, it is first necessary to understand why states violate the rights of religious minorities and what the incentives are for states to comply with international standards. In line with recent scholarship on the issue of why states comply with international regulatory regimes, I suggest that the kind of coercive enforcement that lies at the heart of the U.S. approach, while perhaps more immediate and direct than current UN protection mechanisms, involves a range of long-term risks, most particularly to the universality of the human rights idea itself. A preferable approach is for states fully to participate in and to strengthen external monitoring and international scrutiny through multilateral regimes. This is an increasingly effective option in the context of the decline of statist conceptions of sovereignty and the increasing penetration of international legal process in the conduct of states. I further suggest that evolv-

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ing UN ad hoc mechanisms and the ability of individuals to bring communications to bodies such as the Human Rights Committee should be further developed. Similarly, NGOs and religious institutions are themselves significant actors, both internally and externally, that need to be fostered, encouraged, and developed.

I I. CAU SES AND C ONSEQU ENCES OF OPPRESSION OF RELIGIOU S MINORITIES The publication in 1997 by Boyle and Sheen of their World Report on Freedom of Religion and Belief demonstrated in stark terms that widespread manifestations of intolerance and discrimination on religious grounds exist in the world today.13 In assessing how to monitor these violations, and how best to implement international standards, it is first necessary to understand something about the causes and consequences of religious discrimination, persecution, and oppression. Yoram Dinstein has commented that: In all likelihood, freedom of religion is the most persistently violated human right in the annals of the species. Religious intolerance has generated more wars, misery and suffering than any other type of discrimination or bias. In the name of this or that deity, for the glory of a divine cause, or in order to settle abstruse theological disputes, human blood has been shed for thousands of years. History is replete with holy wars and crusades against infidels, religious persecution and oppression, inquisitions and autos-da-fe´. The paradox is that the very groups who have been persecuted for religious deviation are frequently animated by a spirit of intolerance when encountering other beliefs.14 What then are some of the general factors or indicators that we might identify to assist in targeting those regions or types of violations most in need of international scrutiny? The first point to make is that religious intolerance is a phenomenon that implicates a seamless web of social, ethnic, cultural, political, and economic factors. Intolerance most often is a function of the unwillingness to accept the right of everyone to be different and thus may stem from a lack of respect for the beliefs of others. Historically, this is what has often led majorities to exercise domination over minorities with different beliefs. Religious intolerance may also be a function of a perception of superiority and the desire to find a scapegoat for social or economic problems. Basic factors such as these are becoming better studied and understood today, especially as a result of the investigations conducted over the last few years by the various UN Special Rapporteurs on Religious Intolerance.

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In his 1996 report to the UN Commission on Human Rights, Special Rapporteur Abdelfattah Amor identified six broad categories of violations, as follows: 1.

2. 3.

4. 5. 6.

Violations of the principle of non-discrimination with regard to religion or belief including allegations of discriminatory policies and/ or laws and regulations concerning religion and belief; Violations of the principle of tolerance in the area of religion and belief, particularly concerning religious extremism; Violations of freedom of thought, conscience and religion or belief including questions of conscientious objection, official campaigns to renounce faith and freedom to change one’s religion; Violations of the freedom to manifest one’s religion or belief including control by the authorities of religious activities; Violations of the freedom to dispose of religious property including destruction and desecration of places of worship; and Violations of the right to life, physical integrity and health of persons including both clergy and believers.15

Dinstein has similarly identified at least six dimensions to the interplay between religion and discrimination, as follows: a.

b.

c.

d.

e.

f.

religious discrimination against minority groups may be achieved by seemingly neutral laws of general application, such as legislation pertaining to a weekly day of rest in Christian states that may impact on the religious practices of Jewish and Muslim minorities; religious discrimination may impinge on other human rights such as the right to work, to receive access to public education or freedom of emigration; infringements of freedom of religion may occur not by discrimination per se but by absolute denial of free exercise, such as by an atheistic regime prohibiting all forms of religious worship in public; freedom of religion may be impaired because of discrimination on a ground other than religion, for example discrimination between co-religionists on the basis of race or ethnic origin; religious discrimination may occur when the State provides illegitimate financial support and benefits (i.e., leaving aside questions of affirmative action or special measures) to only certain religious groups; and religious discrimination may derive from religious doctrine postulating the inferiority of some believers on the ground of race, sex, birth and so on, such as was involved in the constitutional abolition of “untouchability” in India.16

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In assessing these broad categories of violations, I would like to make two initial observations. First, threats to religious liberty may originate not only with governments and by official interference, but also with religious leaders and ethnic, religious, and cultural communities within states. Thus, religious groups, whether majorities or minorities, may themselves be the source of violations of human rights as against their own members, or as against other religious groups within the state. This fact is clearly relevant to the design and conception of international monitoring and protection mechanisms. Not only must state action be held accountable to international human rights standards, but what Andrew Clapham has termed “human rights in the private sphere” must also be subject to international scrutiny.17 This insight has particular importance for human rights pertaining to freedom of religion. For example, the potential for conflict between religious and human rights norms in the area of women’s rights is widely recognized. Donna Sullivan has observed that many religious tenets governing rights associated with the life of the family, particularly those pertaining to marriage and divorce, inheritance, and personal status, often set religious law and practices in opposition to the prohibition of discrimination against women in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).18 This fact challenges several traditional assumptions concerning human rights law, most pertinently the public/private distinction and orientation toward “state action.” If the 1981 Declaration is to have a real effect in preventing widespread and entrenched violations of religious freedom, it must therefore extend to the actions of private bodies and relations between individuals inter se. That the drafters of the 1981 Declaration intended for it to extend beyond state action to discrimination and intolerance in the private sphere is beyond doubt. Article 2 provides that “[n]o one shall be subject to discrimination by any State, institution, group of persons or person on the grounds of religion or other beliefs.” Article 3 states that “[d]iscrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity”; and Article 5 provides that “[a]ll States shall take effective measures to prevent and eliminate” such discrimination. Of course, as Sullivan notes, this extended reach may also create normative conflicts between the rights stated in the Declaration and other human rights, in particular between freedom of religion itself and other norms requiring women’s equality and nondiscrimination.19 This raises Kymlicka’s distinction (discussed in the Introduction to this collection20) between “external protections” and “internal restrictions,” and the tension between the values of tolerance and autonomy in liberal human rights theory. While such conflicts may require a careful balancing of competing rights, they do not obviate the express intention for the Declaration to regulate discrimi-

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natory and intolerant conduct on the grounds of religion or belief in the private sphere. Second, the relationships between different forms of discrimination need to be better understood in approaching the task of reforming and streamlining international monitoring and protection mechanisms. The findings of the various UN Special Rapporteurs on Religious Intolerance have established that no country in the world, indeed no economic, social, or ideological system, has escaped manifestations of intolerance and discrimination on the grounds of religion or belief.21 In 1986, Special Raporteur Odio Benito proposed her own typology of these manifestations, as follows: (1) among religions; (2) within religions; (3) among beliefs; (4) within beliefs; (5) between religions and beliefs; (6) between the state and religions and beliefs; (7) among individuals or groups of individuals having different religions or beliefs; (8) among nations; and (9) within nations.22 This classification illustrates once again the range of interrelationships that exist in the field of human rights in relation to freedom of religion or belief. In designing the most effective means by which to monitor and protect against such practices, it may be useful to make an initial distinction between “open” and “structural” forms of intolerance and discrimination. “Open” intolerance may be defined as discriminatory or intolerant behavior whereby individuals or institutions themselves advocate or practice violence. “Structural” intolerance, on the other hand, may be defined as that propensity which exists in political, cultural, religious, public, or private institutions, in the mass media, and in some traditions of society.23 For example, the principles of nondiscrimination, religious freedom, and the rights of religious minorities enjoy national, constitutional, and international support by the vast majority of Muslim states today, including Egypt, Gambia, Guinea, Niger, Senegal, Sierra Leone, and Tunisa.24 However, while the formal legal systems of these countries do not openly authorize discrimination on the grounds of religion, such discrimination does in fact exist.25 It is more difficult to design international monitoring and protection mechanisms to deal effectively with this latter type of activity, which does not involve open advocacy of intolerance, but implicitly sanctions and encourages it. In order to monitor this form of intolerance, external mechanisms must be designed to probe further than the formal protections provided by states in their constitutions and to examine even neutral, nonreligious criminal and administrative laws, regulations, and procedures that in practice may limit religious liberty. Another distinction that may be useful is the difference between violations of the forum internum and the forum externum. The forum internum may be

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said to encompass the right to have or adopt a religion or belief. It may be violated in a number of ways: for example, by discrimination for having, or not having, a certain religion; proscription of membership of certain religions under law; coercion to reveal one’s religion without consent; or the use of threats, physical force, or penal sanctions to compel individuals to adhere or recant to certain religious beliefs. The forum externum, on the other hand, may be said to encompass the right to manifest a religion or belief. This too may be violated in a variety of ways: for example, restrictions or proscriptions of freedom to worship or assemble; freedom to establish charitable or humanitarian institutions; freedom to make, acquire, and use religious objects; freedom to write, disseminate, and issue publications; freedom to teach a religion or belief, and so on.26 Again, it may be easier to monitor and protect against violations in the first category where limitations on the right are absolutely prohibited under international human rights law, whereas violations in the second category may require more sophisticated indicators and monitoring techniques in order to distinguish between valid and invalid limitations on the rights of minorities to manifest their religion or beliefs. Whatever distinctions are drawn, a crucial part of this inquiry must involve the process of examining root causes. In her review of the various reports of the Special Rapporteurs, Bahiyyih Tahzib has identified three such dominant causes. First, pervasive ignorance and lack of understanding of other beliefs. As Odio Benito has suggested, this is perhaps the primary cause of religious intolerance and is influenced by the particular societal environment, the degree to which information is available and accurate, and the possibility for interreligious dialogue. The connection between ignorance and an enduring tradition of fear and distrust is discernible in many of the world’s interreligious conflicts.27 Second, claims to a monopoly of truth. Claims to the inherent superiority of one’s own belief inevitably leads to a refusal to accept the equal dignity and worth of members of other beliefs. Claims to a monopoly of religious truth have served as one of the primary bases for centuries of holy, divine, or just wars. As Vidal d’Almeida Ribeiro indicated in his 1987 Report, this is one of the primary causes of attitudes of religious intolerance deriving from religious institutions themselves.28 And third, legal, social, political, and economic inequalities. In some instances, prejudice itself may not manifest itself directly or indirectly, but may remain latent as a form of structural intolerance. This prejudice may be activated by legal, social, political, or economic inequalities and may lead to violations of freedom of religion or belief. Struggles for political power, for social position, for wealth, for the maintenance of the existing sociopolitical order, or for the establishment of a new sociopolitical structure can often be identified at the root of religious discrimination. History is replete with examples of governments or individuals finding vulnerable scapegoats for social or

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economic ills, or to provide a unifying influence for the citizens of a country, uniting them against a common target.29 In addition to these three general root causes, we might identify a number of related factors. For example, the historical configuration of relations between church and state in different parts of the world;30 the role played by patterns of monolithic nationalism in discrimination against minority religious groups (which is a factor of particular importance in many parts of Eastern Europe where belief systems have been integral in the formation of national identity and where preferences to a majority religion are often a component of the nation-building process); and differing conceptions by governments of police power concerns such as public safety, order, health, and morality. This last factor, in particular, has special relevance in East European states where, for a variety of historical reasons, governments controlled by the majority religious, ethnic, or cultural group tend to perceive religious, ethnic, or cultural minorities as giving rise to security concerns that justify severe limitations on even the most basic rights and freedoms such as the rights of religious minorities openly to practice their religion and language.

I II. POSSIBLE RANGE OF RESPONSES What are the appropriate responses to these wide-ranging forms of discrimination and intolerance? In answering this question, we must first distinguish between internal and external actors, institutions and regimes. The strategic role and significance of external pressure and monitoring by outside actors of human rights abuses occurring within states is increasingly being acknowledged today. However, while external monitoring by nongovernmental organizations (NGOs), international organizations (IOs, such as the UN), intergovernmental organizations (such as the Organization for Security and Cooperation in Europe—OSCE), and regional organizations (such as the European Union) may be necessary, such monitoring is not sufficient, nor was it ever intended to be. International and regional human rights regimes do not seek to replace the constitutional, legislative, or administrative systems of states. Rather they seek to supplement and strengthen those systems. Thus, the most effective and direct response remains for states to reform their own anachronistic or unjust legal, economic, social, and political structures. This task may require far-reaching and complex adjustments. As a matter of legal reform, both legislative measures and the provision of adequate judicial or other remedies for victims of intolerance and discrimination based on religion or belief are required. Beyond the legal sphere, education, teaching, and information programs have been advocated by the Special Rapporteurs as effective responses, as has the fostering of interreligious dialogue between reli-

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gious groups. In her review of the factors influencing effective protection of religious freedom, Tahzib has reached a similar conclusion, stating that the phenomenon of intolerance and discrimination on the grounds of religion or belief is highly complex and of a sensitive nature. It has proven impossible to approach that phenomenon from solely a legal point of view. Intervention and action in different domains and at multiple levels are called for.31 The effective protection of freedom of religion and belief is also inseparable from the more general project of promoting respect for all human rights and cultivating a culture of rights within states. This point was made explicitly by Special Rapporteur Amor in his 1996 Report: [A]ction to promote human rights must include measures to establish, strengthen and protect democracy as an expression of human rights at the political level and, at the same time, measures to contain and progressively eliminate extreme poverty and promote the right of individuals and peoples to development as an expression of human rights and human solidarity in the economic, social and cultural areas.32 As Amartya Sen so elegantly reminds us, the tripartite norms of democracy, development, and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.33 The rights of religious minorities are far more likely to be respected in states that eschew authoritarianism and enshrine democratic principles that include basic civil and political freedoms and that provide for the basic economic needs of their citizens. From among this range of internal responses, I wish to make some additional comments in two areas—first, in relation to the role of religious leaders and institutions in the protection of religious freedom, and second, in relation to the effects of “constitutionalism” and the struggle for constitutional justice in the newly democratic states of Eastern Europe.

a. religion & religious institutions There is a growing body of thought within the human rights movement itself that religion and religious institutions are underutilized in securing and promoting human rights and contributing to the prevention of religious conflict.34 Before even beginning to assess the relative effectiveness of multilateral and bilateral mechanisms in preventing religious conflict and discrimination, it must be recognized that the strengthening of civil society through the work and vitality of religious leaders and institutions may play an important role. This

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relates both to the local and transnational activities of religious organizations, a topic taken up in the chapters by Byrnes and Goeckel in this collection.35 The 1997 Carnegie Commission Report on Preventing Deadly Conflict identified five factors that combine to provide such organizations and leaders with a comparative advantage in dealing with religious conflict: First, they can provide a clear message that is able to resonate with their followers; second, they have a long-standing and pervasive presence on the ground; third, they have access to a well-developed infrastructure that often includes sophisticated communications networks connecting local, national, and international offices; fourth, they have established legitimacy for speaking out on crisis issues; and fifth, they have a traditional orientation to peace and goodwill.36 There is some evidence today of religious groups seeking to build bridges between factions in conflict: for example, the Corrymeela Community in Northern Ireland and the permanent Inter-Religious Council in the former Yugoslavia (which has Muslim, Jewish, Serb, Orthodox, and Roman Catholic members). The Inter-Religious Council, in particular, has attempted to promote religious cooperation in Bosnia Herzegovina by identifying and expressing common concerns independent of politics. Religious advocacy is also particularly effective when it includes many faiths. Inter-faith dialogue on key public policy issues is vital. For example, in the post-Vatican II era, the Catholic Church has established three bodies to deal with interreligious dialogue: the Pontifical Council for Inter-Religious Dialogue, whose mandate covers all religious communities except for Jews and non-Catholic Christians; the Commission for Religious Relations with Jews; and the Pontifical Council for Promoting Christian Unity.37 In other circumstances, where a religious community is perceived as neutral and apolitical, it may be an ideal vehicle to act as an honest broker and neutral mediator. The fact that religious groups are simultaneously local, national, and international entities provides them with access to unique transnational networks. This is considered to be one of the main factors in the Soviet bloc that ensured that religious consciousness remained alive during the communist period.38 Of course, there are inherent difficulties when churches operate as political actors. This approach runs the risk of distorting the separation of religious bodies from the state and, by using their elevated moral and political status to exert political pressure, the groups themselves may risk shifting their focus away from individual salvation and spirituality. But in the context of the broader protection of religious freedom in many states, I believe that this is an area that requires further consideration. Part of that process must include finding more effective ways for religious groups to work with the international human rights community. As Michael Young has observed, religious communities have often mistrusted the strong secular and humanistic thrust of human rights advocates and have consequently eschewed either identification with or participation in

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the human rights movement.39 The challenge for the future is for both communities to find modes and avenues for more systematic and institutionalized patterns of cooperation that will lead to a mutual strengthening of their respective agendas.40

b. constitutionalism and effective remedies A second key component of the effective protection of religious liberty is the need for constitutional arrangements that require governments to respect and ensure fundamental rights and freedoms. Until recently, this has not been a dominant feature of the constitutions in Eastern Europe. As Louis Henkin has observed, the socialist constitutions of Eastern Europe after the Second World War have been essentially manifestoes, programmatic. They describe the kind of government and the institutions of government that have already been established and indicate plans and make promises for the future. They nod to the rights of the individual in society but declare the rights which government is prepared to grant, rather than recognizing rights which the government is obligated to respect. (These constitutions also have tended to stress the citizen’s duties rather than his (her) rights and to subordinate rights to duties.) Ordinarily, such constitutions have not been enforceable as law and had little normative character. They can be readily amended by political authority.41 Since the historic events of 1989, however, that situation has radically altered as constitutional reforms have swept across Eastern Europe following the collapse of communism. The political systems of Russia, Romania, Bulgaria, Hungary, Poland, and the Czech and Slovak Republics have all embraced the idea of “constitutionalism,” and have incorporated the concepts of judicial independence, the rule of law, human rights, and liberal democracy into their revised constitutions. These countries have also created new and innovative constitutional courts with exclusive jurisdiction to strike down nonconforming laws and decrees and, in some cases, even to mandate the enactment of laws to fill constitutional “gaps.”42 Of course, it remains an open question as to how effective these new constitutional arrangements will be in protecting the rights of religious minorities. At the heart of this process lies the difficult task of developing respect for the rule of law and cultivating a culture of rights. In the conditions of many Eastern European countries, the legacy of communism has created a discernable skep-

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ticism toward the efficacy of legal norms, reinforced by widespread corruption, and a relatively weak civil society. Furthermore, any progress toward constitutional democracy is tied closely to the fortunes of economic transformation, a most relevant factor given the economic devastation left behind by the communist regimes. As the late Chief Justice Mohamed commented in the context of the constitutional transformation that has occurred in South Africa following the demise of apartheid: A formal constitutional democracy which eloquently guarantees through the Constitutional Court, the civil and political rights of its citizens, but is unable to redress the very deeply perceived social and economic needs of those inheriting the monstrous legacy of a manifestly unacceptable past, must therefore remain dangerously vulnerable to rapid instability and disintegration.43 This warning is no less relevant to the new democracies of Eastern Europe as they move toward establishing a culture of constitutionalism, rule of law and human rights in the midst of an unpredictable economic transformation. For this project to succeed, these states require more than constitutional courts— they require human rights ideas and norms to be widely disseminated by the nongovernmental structures of civil society, permeating the schools, the universities, the electronic media, the free press, and the trade unions. If the culture of human rights and constitutionalism does not become part of the national ethos internalized within the psyche of its citizens, the jurisprudence and integrity of the new constitutional courts will remain permanently vulnerable. Nevertheless, it is interesting to observe that several of the early decisions of the Eastern European constitutional courts indicate a willingness to protect both the rights of religious minorities and religious freedom more generally. For example, the new Bulgarian Constitutional Court has handed down several decisions since 1991 in relation to the historically troubled relationship between the Bulgarian majority and the Turkish minority. The most notable of these was a case decided by the Court in 1991. The Bulgarian Constitution contains only limited protections for minorities, mainly in the areas of language and cultural rights, although restrictions on the grounds of religion are expressly prohibited.44 The Constitution does, however, ban ethnic parties and movements and prohibits citizen’s associations (including trade unions) from participating in politics.45 These limitations are mirrored in statutes and have been used to limit the rights of minority groups to form associations and participate in political activities. This has led to ethnic and racial minority groups being denied certification by local courts and there have been reports of meetings of minority groups being dispersed by the police.46 In a narrow decision by the Court in 1991, the Movement for Rights and

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Freedoms (MRF), which has 99 percent Muslim and Turkish members, prevailed against a challenge taken to the Court by the Bulgarian Socialist Party (BSP) challenging the right of the MRF to run as a political party. According to Vanelin Ganev, the case “in effect obviated the ban on ethnic parties,” such that by 1996 there were as many as three Turkish parties and a dozen Roma and Macedonian parties.47 In a later decision on June 11, 1992 dealing directly with religious freedom, the Court halted attempts by the Directorate of Religions, then controlled by the Union of Democratic Forces (UDF), to oust the incumbent heads of the Orthodox Church and Islamic community on the ground that no state interference in religious matters was permitted. Court Chairman Asen Manov ruled that the religious groups would need to settle the matter of their leaderships among themselves.48 Two further aspects of the early jurisprudence of the Bulgarian Constitutional Court are pertinent here. First, it is clear that the Council of Europe and the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR),49 both of which are discussed in more detail below, have had discernable effects on the legal reasoning and political functioning of the Court. Herman Schwartz has suggested that the Court’s decision in the 1991 MRF case was greatly influenced by pressure from the Council of Europe, which admitted Bulgaria as a member state two weeks after the decision was handed down.50 In a later case in which the BSP sought a ruling on whether various provisions of the Council of Europe’s Framework Convention for the Protection of National Minorities were consistent with the Bulgarian Constitution, the Court ruled on February 18, 1998 that the Convention was “compatible with the Constitution since both the Framework Convention and the Bulgarian Constitution correspond to the European Convention on Human Rights, which sets the standards for both documents.”51 Thus, Bulgaria’s membership in the Council of Europe and adherence to the ECHR can be seen to have had a direct effect on Bulgarian law in the area of minority rights. This type of normative influence by regional and international human rights norms on domestic laws and practices is an important result of external monitoring and protection mechanisms. Indeed, Schwartz has suggested that the civil and political rights jurisprudence of most of the ex-communist states may soon be determined not so much by how the various constitutional courts interpret and apply their own constitutions, but by how the European Court of Human Rights interprets the ECHR.52 Countries such as Bulgaria, Russia, Poland, Hungary, Slovakia, the Czech Republic, Albania, Georgia, Slovenia, and Estonia are all now members of the Council of Europe and are thus bound by the Convention. The jurisprudence of the European Court of Human Rights since 1990 regarding freedom of religion, its relevance for religious minorities, and its influence on constitutionalism in Eastern Europe, is discussed in the next chapter of this collection.

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Second, a significant limitation on the Bulgarian Constitutional Court’s effectiveness is the absence of a provision for individual complaints. The above decisions reached the Court only because the parties had standing as public officials under the Constitutional Court Law. Because individual complaints for human rights violations cannot be brought before the Court, instances of police brutality and interference as part of nationalist attacks against Roma, for example, have not been subject to constitutional review.53 Given this restriction on the availability of effective redress in Bulgaria for human rights violations, it is perhaps not surprising that the European Roma Rights Center has urged Eastern European activists and public interest lawyers to consider European Court of Human Rights-based strategies, particularly given that the European Court is relatively progressive, the media are interested, and legislators can now be pushed more readily to conform to ECHR standards.54 This strategy is strengthened by the fact that, as discussed above, the Council of Europe is continuing to evaluate a number of East European countries for membership, and many of these are willing to attend to human rights concerns in order to join. A good example of this is the case of Slovakia, which was admitted to the Council of Europe in May 1993 subject to ten requirements, including specific provisions on minority rights.55 When the Meciar government initially refused to comply with the Council of Europe’s requirements, especially in relation to the rights of their Hungarian minority, Hungary began to protest and gained much external support. The result was that the Slovakian government’s minority policy was a factor in Slovakia’s denial of first-wave entry into the European Union.56 In summary, then, a vital component of protecting the right to freedom of religion or belief in the former communist states of Eastern Europe is the establishment, broadly conceived, of constitutionalism and the flourishing of a culture of human rights.57 This will necessarily develop over time as the newly created constitutional courts seek to incorporate international and regional human rights principles into their evolving constitutional systems, and as the new democracies become full and active members of, and subject to, the laws, institutions and discipline of the Council of Europe, European Union, and UN.

IV. EXTERNAL MONITORING OF FREEDOM OF RELIGION OR BELIEF Having reviewed a few of the possible responses by internal actors, I now turn to consider how external actors monitor and protect the rights of religious minorities, both in cooperation with state institutions and, where necessary, by exposing and seeking to redress violations by state and non-state actors. At the international level, it is helpful to distinguish between three types of external actors: first, multilateral regimes, both global and regional, which are generally

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monitored by treaty bodies supervising a specific human rights convention or agreement; second, bilateral mechanisms, whereby individual countries seek to monitor and exert pressure on the behavior of other countries; and third, NGOs which contribute to the overall effectiveness of both.

a. legitimacy of external monitoring A threshold issue here is the legitimacy of external actors monitoring the internal affairs of other countries. As a matter of international law and politics, states have been divided on the issue of their readiness to address charges of their own human rights violations. Some states have resisted the airing of such charges on the grounds that these are outside the proper sphere of operation of international organizations such as the UN, which is forbidden under the terms of its own Charter “to intervene in any matters which are essentially within the domestic jurisdiction of any state.” As Henkin has observed, however, UN practice long ago rejected that objection, in effect reflecting the conclusion that human rights violations were not a matter of domestic jurisdiction, or that UN discussion of them is not intervention, or both. Nevertheless, some states remain sensitive about anything in the nature of international examination of their human rights record, invoking arguments about their national sovereignty and Article 2(7) of the UN Charter. It has been a distinct achievement, therefore, to get many states to accept even the modest reporting measures established under the ICCPR.58 Over the course of more than half a century, UN organs and other multilateral and regional institutions have systematically reduced the scope claimed for the so-called domain reserve´. The Helsinki Accords and follow on agreements have given rise to the OSCE, which has become a unique phenomenon in international relations.59 The vast array of UN human rights, labor, environmental, and economic agreements increasingly allow review of behavior previously considered to be purely the province of national governments. The case of Poland well illustrates this point. In 1983, Poland insisted on a very high threshold for alleged violations before UN organs could even begin to consider human rights concerns in a particular state. By October 1991, however, Poland had endorsed the following conclusion of the Moscow Meeting of the Conference on the Human Dimension of the Helsinki process: The participating States emphasize that issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern, as respect for these rights and freedoms constitutes one of the foundations of the international order. They categorically and irrevocably declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all

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participating States and do not belong exclusively to the internal affairs of the State concerned.60 The result of the Helsinki Accords was that if a signatory country failed to abide by CSCE standards, that failure was a legitimate matter for multilateral discussion and action. In this way, states became able to scrutinize appropriately and legitimately the purely internal behavior of other countries in an international setting.61 The relationship between human rights and international institutions has subsequently deepened and broadened beyond the “political” nature of the Helsinki undertakings. The influence of UN bodies such as the Human Rights Committee established under the ICCPR, and of regional bodies such as the European Court of Human Rights established under the ECHR, have had a profound influence in inducing compliance by states with human rights standards. Equally importantly, a customary international law of human rights has been widely recognized since the drafting of the Universal Declaration of Human Rights in 1948, and this too has exerted an influence on state adherence to basic human rights norms.62 Having addressed the question of legitimacy, what then is the purpose or function of external monitoring and scrutiny of human rights violations? Here, my focus is on the role of multilateral and NGO monitoring of the rights of religious minorities, and I leave the question of bilateral monitoring for later discussion.

b. external monitoring by international and regional organizations At both the global and regional levels, monitoring and supervisory mechanisms have evolved in principally three spheres—state reporting procedures; individual complaint procedures; and inter-state complaint procedures. While the last of these mechanisms has not been relied upon by states and has been superseded by the first two, in the space of little over fifty years reporting, supervision and individual complaint procedures have revolutionized the international protection of human rights. These procedures have been built into human rights treaties and have usually involved the following characteristics: • • •

periodic reports by states in accordance with detailed guidelines; review by a committee, accompanied by questions to the reporting states; in some cases detailed inquiry by a subcommittee or individual rapporteur;

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•

a committee report noting discrepancies between states’ conduct and the requirements of the treaty or applicable law.63

The opportunity for individuals or governments to initiate complaints before international treaty supervisory bodies has been achieved largely by the addition of optional protocols to the covenants. The common pattern is for these complaints to be investigated by a committee or special rapporteur who then issues public “views” or transmits conclusions to a relevant parent body. The crucial element here is the ability of the international rapporteur or authority to perform effective fact-finding, a process that depends to a high degree on cooperation by the governments concerned.64

1. united nations mechanisms A primary purpose of the United Nations is “to achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”65 There are three principal ways in which the UN pursues this objective: first, by standard setting—that is, by articulating and elevating international human rights norms to the status of international law; second, by promoting human rights—that is, by educating different communities, promulgating human rights standards, and disseminating relevant information; and third, by implementing human rights. It is the third objective that has proved the most elusive to realize in practice. The process of implementation involves at least three sub-tasks: first, monitoring violations of human rights, including efforts to anticipate and seek to prevent violations through early warning, mediation, or conciliation, and through publicity of alleged violations; second, responding to violations through pressure and the “mobilization of shame;” and third, the capacity for stronger action to deter or reduce violations, such as by imposing sanctions or other punitive measures, and by securing relief for victims by delivering timely humanitarian aid. It is the first of these sub-tasks that is my concern here. How then does the UN seek to monitor and implement existing international standards regarding religious freedom, and how effective is it in this endeavor? At the outset it should be observed that, in the absence of a binding international covenant, there is no specialized treaty supervisory committee with individual experts in the field of freedom of religion or belief. Rather, issues of religious intolerance and persecution fall under the general mandate of the human rights monitoring and protection functions of the UN, which are carried out by three separate bodies. The first is the Commission on Human Rights, which is a functional commission of the Economic and Social Council. The Commission is responsible for developing and overseeing all international human rights

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instruments, and it also oversees numerous “extra-conventional mechanisms” such as thematic working groups and special rapporteurs appointed as human rights monitors for selected countries. The Commission meets annually to hear reports and make recommendations regarding human rights performance of selected states. Accordingly, the Commission annually considers what measures are necessary to implement the 1981 Declaration pursuant to requests by the General Assembly.66 At its thirty-ninth session in 1983, the Commission requested the UN Secretary-General to hold a seminar on “the encouragement of understanding, tolerance and respect in matters relating to freedom of religion or belief.”67 The second body is the Human Rights Committee instituted under the ICCPR. The Committee reviews annual reports from member states and has the capacity to accept individual communications in the case of member states that have signed the Optional Protocol. The third is the UN Office of the High Commissioner for Human Rights (the OHCHR), which has overarching responsibility for overseeing and coordinating all UN human rights activities.68 In connection with the 1997 program for reform of the UN,69 the OHCHR and the Center for Human Rights, which previously was the office of the UN Secretariat charged with conducting fact-finding and producing reports in connection with the activities of the Commission and the Human Rights Committee, were consolidated into a single office as of September 15, 1997. Thus, the new OHCHR has assumed as part of its mandate the program of advisory services and technical assistance that the UN Center made available to states upon request, including assistance on the preparation of reports under international human rights treaties.

(a) The Emerging Role of Ad Hoc and Extra-Conventional Monitoring One of the most rapidly evolving areas of external monitoring and protection lies outside of the traditional judicial and quasi-judicial monitoring mechanisms established by convention, and in an area known today as extra-conventional and ad hoc human rights machinery.70 This includes the Special Rapporteurs and Working Groups of the UN Commission on Human Rights; various activities and operations of the recently reformed OHCHR; and country verification missions. In its first twenty years, the Commission on Human Rights maintained that it had “no power to take any action in regard to any complaints concerning human rights.”71 As more petitioners sought individual assistance, however, in 1967 the Economic and Social Council (ECOSOC) adopted Resolution 1235 authorizing the Commission to “make a thorough study of situations which reveal a consistent pattern of violations of human rights.”72 Although not initially intended, the 1235 procedure soon became a vehicle for the establishment of country-oriented study groups and thematic rapporteurs. By 1994, seventeen

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countries were subject to some form of country-oriented procedure; twelve of these were monitored by special rapporteurs, three by representatives of the Secretary-General, and two by independent experts appointed under advisory services (a more consensual, cooperative form of human rights monitoring). The first thematic procedure established by the Commission was in 1980 with the Working Group on Enforced or Involuntary Disappearances. The fivemember working group proved to be a prototype for a new genus of UN monitoring machinery. In 1982, the post of Special Rapporteur on Summary or Arbitrary Executions was created, and by 1984 the post of Special Rapporteur on Torture. Since 1985, special rapporteurs have become more numerous. For present purposes the relevant post is that of the Special Rapporteur on Religious Intolerance. While special rapporteurs attempt to examine information from all relevant sources, they are not mandated to respond effectively to individual complaints. They carry out investigations, in situ if possible, and make recommendations in a public report. Due to the inability of rapporteurs to provide rapid response to violations, the Commission now also convenes extraordinary sessions in the event of human rights emergencies, in addition to its annual sessions.73 The main function of thematic rapporteurs is to transmit allegations of human rights violations to governments. Their role is humanitarian, not accusatory or judgmental. And although no explicit fact-finding function was included in the original grant of authority, the thematic procedures have evolved a practice of making country visits (provided they have the consent and cooperation of the government concerned). The rapporteurs meet with government officials and interview members of the judiciary, NGOs, and individuals. They are not limited in their sources of information and draw on a wide range of governmental, inter-governmental, and NGO groups and organizations. Their mission reports contain judgments about country conditions in the form of conclusions and recommendations. Increasingly, the emphasis is on determining the facts implicating state responsibility.74 Before the creation of the special rapporteur posts, the only remedial avenues open at the international level to individuals whose human rights had been violated were the individual complaint mechanism under the Optional Protocol to the ICCPR and the confidential procedure established by ECOSOC Resolution 1503. Both of these involve significant procedural limitations. Under the ICCPR, for example, an individual can obtain access to the Human Rights Committee only if his or her complaint derives from a country that has recognized the competence of the Committee to receive individual communications; the author of the communication must have suffered some direct injury; third parties such as NGOs or relatives cannot petition the Committee; and complainants are required to exhaust all domestic remedies. Even if an individual communication is successful, the primary purpose of the procedure is

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to establish whether a state party has breached its treaty obligations, not to provide relief to the injured individual or family member. Similarly, under the 1503 procedure, all deliberations are private and the purpose is to establish a pattern of gross violations, not to take action on particular cases.75 To some extent, the special rapporteur and working group mechanisms avoid these restrictions. States need not have recognized the competence of a particular thematic procedure, or have acceded to a relevant international convention, for their human rights practices to be the subject of examination. There is no “standing” requirement, and friends, family, legal counsel, and NGOs may all submit information. Importantly, the purpose of these procedures is on providing redress to individuals, not only documenting patterns of gross violations. The thematic procedures are thus more focused on the situation of individuals. At the same time, it should be noted that these thematic procedures are subject to other major weaknesses. Despite their proliferation within the UN system, there has been no attempt made to formalize fact-finding procedures. Fact-finding guidelines have been resisted on the grounds that they would interfere with the need for confidentiality and protection of witnesses. This has resulted in thematic procedures running the risk of inconsistency. Rapporteurs have also not always been provided unlimited access to regions or situations where human rights violations are thought to be occurring, and the ability of rapporteurs to recommend and ensure effective remedial measures for victims of human rights violations has generally been limited. The significance of these thematic mechanisms, however, is the diminishing relevance of the domestic jurisdiction defense by states in relation to UN monitoring and fact-finding procedures, even in the case of non-parties to the major international human rights conventions.76 What the expansion and institutionalization of these mechanisms reflects are changes in the position of the individual in the international system and the role of the UN itself. This has led Professor Bruno Simma to comment that “the decisive human rights bridgeheads in areas of formerly unfettered domestic jurisdiction of states . . . have been gained less by force of treaty-making than by . . . soft law processes on the modest hard-law basis of a few very general Charter provisions.”77 Similarly, Thomas Buergenthal has concluded that the nonintervention doctrine is dead and . . . the [UN] Organization has proved more willing to pierce the veil of national sovereignty to deal with large-scale violations of human rights. In this context, the institutions of special human rights missions and human rights rapporteurs with investigative powers, as well as humanitarian missions, gained significance. These activities have not always been clear successes. They also have not always been based solely on powers derived from the Charter—concep-

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tual neatness and institutional clarity are not necessarily hallmarks of UN actions. This is all to the good, for the United Nations tends to be more effective when its actions are shrouded in legal and political ambiguity.78 The growth of ad hoc and extra-conventional mechanisms also illustrates what has been termed the “NGO-ization” of the UN.79 These mechanisms have borrowed quite significantly from the procedures and methods of human rights NGOs, and indeed a number of NGOs have been significant actors in their creation. Techniques such as case-by-case reporting, urgent appeals, and the process of sending letters directly to governments about particular cases (as opposed to themes or wider phenomena) mirror much NGO activity. Exposure is thus now a major objective of both the NGO community and the UN. This in turn has encouraged a greater degree of activism and flexibility in UN human rights machinery. In some instances, several of the Special Rapporteurs themselves worked in prior incarnations at human rights NGOs. This has helped to ensure that UN monitoring has become more public and vocal than in former times when it was largely dominated by career diplomats. Indeed, in comparison with many international and domestic NGOs, which lack the legitimacy and authority of the UN, the Special Rapporteurs have achieved success in pressuring governments concerned about their international image to be more cooperative and responsive. This success is evident in the evolution of the role of the various Special Rapporteurs in the field of freedom of religion or belief. Elizabeth Odio Benito, a member of the Sub-Commission on the Promotion and Protection of Human Rights, was the first Special Rapporteur appointed in 1983 to undertake a comprehensive study of “the problems of intolerance and of discrimination on grounds of religion or belief.”80 By 1986, the Commission on Human Rights was becoming increasingly concerned about implementation of the 1981 Declaration and decided to create the dedicated position of Special Rapporteur on Religious Intolerance. Vidal d’Almeida Ribeiro was appointed to the position and held that post for seven years until his resignation on February 18, 1993. Abdelfattah Amor was appointed thereafter and continues in that position today. Thus since 1987, the Special Rapporteurs have been examining incidents and governmental action in all parts of the world thought to be inconsistent with the 1981 Declaration and have been submitting annual reports to the Commission (and since 1994 to the UN General Assembly). A brief review of the 1999 Report by Amor to the Commission reveals the following areas of coverage: a.

a report on communications sent by the Special Rapporteur and replies received from states which, in 1999, included 93 communi-

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b.

c.

d. e.

cations (of which 2 were urgent appeals) sent to 55 states and 23 replies; a description of special initiatives undertaken by the Commission and Special Rapporteur concerning studies, legislation, and fostering a culture of tolerance; a description of in situ visits intended to initiate dialogue with the main religions and beliefs on the 1981 Declaration and to encourage solutions to problems of intolerance and discrimination; an analysis of violations of freedom of religion or belief during 1999 based on the identification of the main trends; and recommendations designed to prevent the violations of the 1981 Declaration that have been found to exist.

Included among the communications sent by the Special Rapporteur were the following East Central European and former Soviet states: Azerbaijan, Belarus, Bulgaria (twice), Georgia (twice), Greece, Kazakhstan, Republic of Moldova (twice), Russian Federation, Tajikistan, Turkmenistan (three times), Ukraine (twice) and Uzbekistan (three times).81 The conclusions and recommendations at the end of the report reinforce many of the themes and patterns discussed above. For example, Amor identifies the spread of religious extremism as affecting most religions. He notes that this may take on inter-religious dimensions (that is, directed against other religions and beliefs) and intra-religious dimensions (that is, directed against communities belonging to the same religion). The main victims of both forms of extremism are minorities and women, both of whom may be subjected to discriminatory measures giving them an inferior or even non-legal status and exposing them to expressions of violence such as attacks, kidnappings, and rape. Amor explicitly notes that these forms of extremism often originate with nongovernmental bodies, sometimes with groups acting out of fanaticism, sometimes with extremist communities aiming to employ politics to impose their religious views on society. He recommends vigilance in monitoring active and passive complicity of state entities in both cases.82 Of direct relevance to the position of religious minorities in the newly democratic states of Central and Eastern Europe, Amor also identifies a “general tendency to perpetuate policies, legislation and practices which affect freedom of religion and belief.” He notes that while there has been a gradual decline in anti-religious and religious control policies in the interest of political ideology since the end of the cold war, many of these policies persist, often in subtle forms, in a number of states. The aim is no longer officially to eradicate religion, but to recognize and regulate it by a framework of strict controls which amount to interference incompatible with international law.83 In terms of the effects on religious minorities, Amor notes:

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a.

b.

c.

d. e.

The pursuit of policies of intolerance and discrimination by authoritarian regimes against communities of religion and belief seen as opposing the authorities’ goals; The maintenance of policies and practices of intolerance and discrimination against certain communities, particularly ethno-religious communities, within the framework of essentially political conflicts; The pursuit of policies, legislation, and practices hostile to religious minorities in countries with an official religion or where the majority of the population belongs to one faith; The upsurge of intolerant and discriminatory policies and practices directed against “sects or new religious movements;” The maintenance of policies, legislation and practices opposed to conscientious objection.84

On the question of responding to these deeply entrenched tendencies, Amor recommends daily “management” of such phenomena through further communications, urgent appeals, and in situ visits. He also recommends more attention concerning prevention, mainly through education and inter-religious dialogue to prevent currently observed violations resulting from religious extremism; from special policies, legislations and practices; and from discrimination attributed to religion affecting women.85 These recommendations have been accepted by the UN General Assembly.86 Thus, it can be seen that the creation of the Special Rapporteur mechanism has had a discernible impact within the international monitoring and protection functions of the UN. Another important actor in the area of ad hoc and extra-conventional monitoring is the office of UN High Commissioner for Human Rights. The High Commissioner (like the UN Secretary-General) has the capacity to perform “good offices” functions in the field of human rights. This role is in many respects a formalization or institutionalization of the Secretary-General’s ad hoc good offices but with a specific human rights mandate. It involves engaging “in a dialogue with all governments . . . with a view to securing respect for all human rights,”87 but also provides the opportunity to create a type of “early warning” system designed to alert the UN to impending emergencies and situations requiring urgent action. The effectiveness of the High Commissioner’s role is linked in practice to day to day cooperation and consultation with governments: that is, by facilitating the accession and ratification of international human rights instruments; by promoting legislative reforms; by implementing recommendations of treaty bodies; by seeking to strengthen the rule of law and democratic institutions; by encouraging the training of the judiciary and the police; and by elaborating national plans of action in the field of human rights. Thus, in comparison with

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the rapporteurs and other thematic mechanisms, the role of the High Commissioner emphasizes more consensual and cooperative activities. The undefined and consensual nature of the role is also the source of its major weaknesses. There are no formal follow-up procedures, nor are there procedures for systematic response on the part of the Human Rights Commission or the General Assembly to the reports of fact-finders such as the rapporteurs or indeed the High Commissioner herself.88 There is therefore an urgent need to increase and improve communication between these bodies and to coordinate each component of the UN human rights machinery. The High Commissioner is likely to be a key actor in that process in the years ahead.

(b) The Human Rights Committee The Human Rights Committee is the permanent treaty body whose function is to monitor and implement the ICCPR. Membership of the Committee consists of eighteen experts elected by the states parties. The Committee has three main areas of operation: first, the mandatory reporting procedure under Article 40 by which the Committee considers and studies reports submitted by states parties on the measures they have adopted to implement the rights recognized in the Covenant; second, the optional interstate procedure under Articles 41 and 42 by which the Committee may consider complaints that another state party is not fulfilling its obligations under the Covenant (which has never been used); and third, the optional individual communications procedure under the First Optional Protocol to the Covenant by which the Committee may receive and consider communications from individuals subject to the jurisdiction of a state party to the Protocol who claim to be a victim of a violation of any of the rights in the Covenant.89 Apart from submitting an annual report on its activities to the UN General Assembly, the Committee also prepares General Comments on specific articles and in this way a “jurisprudence” of the Covenant is emerging on its meaning and scope. In the area of freedom of religion or belief, the Committee has for more than two decades scrutinized state reports, issued General Comments and received individual communications in relation to both Articles 18 and 27. While a full review of these activities is beyond the scope of this chapter,90 a few general observations may be made. The most effective function of the Committee in terms of monitoring and implementing these rights has been in the examination of state party reports. This has created an energetic dialogue between the experts on the Committee and states that has exerted pressure for domestic and constitutional systems to comply with international human rights standards. As might be expected, the Committee has on the whole been cautious in criticizing states for limitations or violations of rights of freedom of religion or belief. This has perhaps been due to the sensitivity and complexity of the subject and the need to maintain an ongoing dialogue with states parties. With the end of cold war divisions and

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with its own maturation as a quasi-judicial deliberative body, however, it would be a mistake to underestimate the normative effects of ongoing dialogue between the Committee and governments from divergent religious, political, economic, and social systems. For example, on July 23, 1993 the Committee adopted General Comment No. 22 on Article 18 providing a wide interpretation and indicating a willingness to confront controversies in this area (including the freedom to change religions and conscientious objection). On the question of individual communications, between 1976 and 1995 there were fourteen communications alleging violations of Article 18 including issues of conscientious objection, manifestation of religion or belief, permissible limitations, and parental rights in education. These came from five states: Finland, the Netherlands, Canada, Germany, and Colombia. The Committee declared eight of these communications inadmissible and expressed views on the remaining five. In no case did it find a violation of Article 18. The Committee’s interpretation of Article 18 has thus been restrictive, particularly in relation to conscientious objection,91 and it has only infrequently referred to the 1981 Declaration. In the area of minority rights under Article 27, the record during the same period is only marginally better, commencing with the well known 1977 communication in Lovelace v. Canada,92 and more recently with the communication in Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada.93 However, these communications have involved minority questions of language and culture and not religion. We can therefore conclude that during these years the individual communication mechanism failed to function in the sphere of freedom of religion or belief. Since 1995, however, the position has slowly begun to change. There has been an increase in the number of communications in relation to Articles 18, 26 (the nondiscrimination provision) and 27 suggesting greater reliance by individuals on the procedure to allege instances of religious intolerance and discrimination. For example, on November 3, 1999 in Arieh Hollis Waldman v. Canada, the Committee found that because the Roman Catholic denomination is the only one that has the right to government funding in Ontario for the purposes of education, this constituted discrimination under Article 26 because the author, a member of the Jewish faith, had to meet the full cost of education in a religious school for his children.94 The extent to which further communications of this kind will be initiated, and whether they will be successful before the Committee, is an open question. There are two foreseeable obstacles to this occurring. First, the Committee will need to interpret Article 18 more broadly than in its earlier views and more closely in accordance with General Comment No. 22. Second, the area most in need of reform is that of standing and access to the communication procedure itself. At present, only individuals may bring communications to the Com-

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mittee. If the Optional Protocol were amended to allow NGOs to initiate communications, or to act more closely in conjunction with individuals in preparing communications, it is conceivable that more cases would be brought as familiarity with the procedure increased.95 This is particularly important in Eastern Europe and the former Soviet Union where increased involvement of NGOs in the work of the Committee would enhance knowledge and understanding in the region of religious freedom and human rights and would provide an avenue for redress and pressure on governments beyond local and regional legal systems.96 If this were to occur, however, the workload of the Committee would increase and, without the allocation of far greater resources and personnel from the UN, it is unlikely that the Committee would be able to cope with the added influx of communications. In conclusion, monitoring and protection of freedom of religion or belief at the international level is currently carried out by a number of ad hoc and extraconventional mechanisms, principally the Special Rapporteur on Religious Intolerance and the High Commissioner for Human Rights, and by the treatybased Human Rights Committee. The emphasis is on fact-finding and reporting and on exerting external pressure on governments as a matter of international law, politics, and relations to bring their domestic laws and practices into line with international human rights standards. While there is the capacity to bring individual complaints at the international level, this mechanism is relatively undeveloped and does not approximate judicial process or remedy under domestic legal systems.

2. regional organizations in the “new europe” At the regional level in Europe the situation is greatly more developed, particularly in relation to the availability of judicial remedies for individuals who have been subject to human rights violations. As the next two chapters in this volume attest, there is today a variety of systems operating in Europe for the protection of human rights. The reasons for this variety reflect historical developments in a political and economic environment that has been in a steady state of evolution for the last fifty years. As Europe has become more politically homogenous, the membership of states in organizations such as the European Union (the EU) and the Council of Europe has become increasingly similar. There are now forty-one members of the Council of Europe, and therefore to the ECHR. This represents a massive increase in membership since the early 1990s, primarily from countries in Central and Eastern Europe, including many from the former Soviet Union.97 As will be discussed below, human rights “conditionality” has in this way become a key component for these states in the entry to and full participation in the Council of Europe and EU. The Council of Europe, the EU and the OSCE are all concerned with

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ensuring that human rights are protected. As at the global level, each organization has its own constitutive human rights instruments with a corresponding treaty body supervising compliance with the relevant obligations. As Giorgio Gaja has observed, these instruments and mechanisms supplement those established at the global level for the same rights with the ensuing result being a “fairly complex picture.”98 It is in fact possible for individuals to seek remedies at both levels, although some states that are parties to both the ECHR and the Optional Protocol have entered reservations to the Protocol in order to avoid having to defend themselves first against a petition to the Court in Strasbourg and then against a communication to the Human Rights Committee.99 For example, in the case of Coriel and Aurik,100 two years after the European Court held a claimant’s petition to be inadmissible, the Human Rights Committee found that the Netherlands had violated the Covenant when it denied the claimants the right to change their surnames for religious reasons.101 While the ECHR system provides a more effective means of obtaining judicial remedies for individuals than does the ICCPR, it does not expressly protect the rights of minorities. The only reference to the rights of minorities is in Article 14, which deals with, inter alia, the question of discrimination against national minorities. Nevertheless, the political changes in Eastern and Central Europe and the resulting increase in the mobility of people have created more awareness of issues of intolerance and discrimination against minority groups, and the Council of Europe has responded in a number of ways. First, it has cooperated with and contributed to the work of the OSCE on minority issues. Second, and crucially, the Parliamentary Assembly and the Committee of Ministers now take into account principles of genuine pluralist democracy and human rights in considering applications for membership of the Council of Europe. Pluralist elections must be held at reasonable intervals, by secret ballot and with universal suffrage, to parliaments made up of political party representatives who are free to organize and express themselves.102 In dealing with applications for membership, special attention is given to the way in which minorities are treated.103 Similarly, human rights have come to play a greater role in EU policy and membership criteria. The progressive development of the EU into an “area of freedom, security and justice” has now been recognized as one of the five objectives of the Union. Article 6(1) of the Treaty on European Union has been substantially revised to read as follows: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to Member States.”104 Whether or not human rights are regarded as an objective or merely a principle of the EU, they have now achieved such prominence in the EU’s internal and external policies that they were proclaimed in the Amsterdam Treaty as explicit preconditions for EU membership.105

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What all of this indicates is the full recognition in Europe of the idea that how states treat their national, ethnic, and religious minorities is a legitimate matter of international concern that has broad implications beyond the individual states themselves. The policy has been to include rights-based protections for minority groups in regional legal processes and mechanisms as a means to promote and secure peace and fairness across both Eastern and Western Europe. Thus, minority rights and human rights more generally have come to play a defining role in Europe’s international institutions and relations. In conjunction with the changes to the notion of “citizenship” that the EU has generated, minority questions in Europe are today very much on the international agenda. Indeed, in 1990 the European Commission for Democracy through Law prepared a draft European Convention for the Protection of Minorities and this was subsequently superseded by the adoption on November 10, 1994 of the Framework Convention for the Protection of National Minorities. The Convention entered into force in February 1998 and as of January 2000 had been ratified by twenty-eight states.106 It is the first binding international instrument devoted exclusively to the protection of national minorities and it includes a monitoring mechanism for its implementation. This task is entrusted to the Committee of Ministers, which has created an advisory committee to evaluate the reports transmitted periodically by the states parties.107 In this respect, the European Framework Convention provides a legally binding regional mechanism by which to implement the otherwise nonbinding 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the substantive content of the two documents being similar.108 While the Framework Convention is legally binding under international law, the level of generality of certain of its obligations and the lack of specific enforcement machinery akin to that existing under the ECHR (or even under the ICCPR with its review of state-submitted reports and decisions on individual communications) makes it a “soft law” regime in most respects. Scholars in Europe have quickly criticized the Framework Convention for its lack of definition and inadequate supervisory mechanisms with Oberleitner describing the reporting function as the “weakest” available mechanism.109 This reflects the fact that the governments of Europe have produced these new standards in order to sound both unified and progressive, but the softness of the regime reflects the hesitancy of many governments regarding minority issues.110 Nevertheless, I would suggest that the “compliance-pull” of these soft law mechanisms, in conjunction with the effects of human rights “conditionality” discussed above, are encouraging changes in state behavior. Increasing interaction between states, NGOs, and supervisory bodies is resulting in dialogue and progress on many levels beyond mere reporting.111 Within this context the moni-

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toring of minority rights by NGOs plays a particularly important role, and it is to this issue that I now turn.

c. external monitoring by ngos Central to the increasing legitimacy of external monitoring at both the global and regional levels has been the contribution of NGOs to the protection of human rights. NGOs were active in promoting human rights even before the postwar human rights movement and contributed greatly to initiating and maintaining that movement. They pressed governments to internationalize human rights and to develop an international law of human rights. They helped promote the human rights provisions in the UN Charter, the Universal Declaration of Human Rights, the Covenants, and subsequent conventions on human rights. They continue to press for better laws. Especially since the “Helsinki monitors” acting pursuant to the Helsinki Accords, NGOs have established themselves as principal monitors of human rights compliance.112 With the support of the communications media, they have continued to mobilize “shame,” to press governments to terminate human rights violations and to improve their laws and institutions so as to prevent or avoid future violations. NGOs are also more free to criticize where criticism may be due as states are generally more concerned to keep bilateral relations on a friendly basis. What I would like to suggest here is that NGOs can play a vital role in protecting and monitoring religious freedom in cooperation with the various treaty supervisory bodies. As less than two percent of the UN’s total budget is allocated to human rights work, the UN human rights machinery lacks the resources needed to obtain credible, systematic, and detailed information on rights violations.113 It is here that NGOs have a key role to play. For example, as part of the scrutiny of state party reports by the Human Rights Committee, NGOs are able in certain instances to work with the Committee to help with the formulation of questions to be used in investigations and to be put to states appearing before the Committee. Under the European Convention, individuals, NGOs, or groups of individual petitioners can submit applications against states that have accepted the right of individual petition. It is therefore possible for NGOs to institute proceedings or intervene as a party, act as an expert, testify as a witness, or act as amicus curiae. While these NGO functions have undoubtedly increased the effectiveness of human rights regimes, reform is still needed if NGOs are to play a more dynamic role in the process of implementing human rights standards in the domestic sphere. Other domains where NGOs have been effective are in convening inter-

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national conferences to raise awareness and in conducting research to document violations. For example, Project Tandem was formed in 1985 to educate and encourage governments and to provide support to the UN.114 Since that time, Tandem has organized three international conferences to study the 1981 Declaration, bringing together national and international experts. The Human Rights Center at the University of Essex, in collaboration with the Tandem Project and a host of other NGO researchers and contributors, also produced the 1997 World Report on Freedom of Religion or Belief. This helped to establish a strong activist network and to compile, for the first time, comprehensive data on the state of religious freedom in many parts of the world.115 At the UN there are also NGO Committees on Freedom of Religion or Belief in both New York and Geneva, and NGOs are able to attend most UN meetings, including the sessions of the treaty bodies, the working groups, the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities.116 NGOs are therefore a crucial international monitoring mechanism and means of exerting pressure on targeted countries. They do this through publicity and lobbying their own governments to exert pressure on other countries, and also by operating within international and regional organizations to put pressure on states. This form of coalition between NGOs and multilateral regimes has the advantage of relative objectivity and legitimacy. Unlike bilateral monitoring between countries, NGOs are more neutral and tend to target the highest priority issues for scrutiny, whether at home or abroad. Given the inevitability of monitoring of some form today, states are beginning to realize that it is politically wise to allow and indeed facilitate neutral even-handed monitoring. In a country such as the United States, this may gradually reduce the pressure for bilateral action.

V. BI LATERAL MONITORING AND PROTECTION OF FREEDOM OF RELIGION OR BELIEF Bilateral monitoring—sometimes referred to as unilateral monitoring—is the final avenue for the external protection of religious freedom. In the area of minority rights, this has generally taken one of two forms—first, bilateral treaties between individual countries that contain provisions on minorities, particularly agreements between a state and an adjoining state where a national, ethnic or religious group exists as a majority in one state and as a minority in the second state; and second, the unilateral monitoring of minority rights issues in states by another (powerful) state as an element of foreign political and economic relations.

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a. protection of minority rights through bilateral treaties Article 18(1) of the Council of Europe’s Framework Convention provides that: [T]he parties shall endeavour to conclude, where necessary, bilateral and multilateral agreements with other States, in particular neighbouring States, in order to ensure the protection of persons belonging to the national minorities concerned.117 Over the last few years, many former socialist states in Eastern and Central Europe have attempted to improve their mutual bilateral relations by concluding what Bloed and van Dijk refer to as bilateral treaties of “co-operation, friendship and good-neighbourliness.”118 These agreements generally contain provisions that address the rights and obligations of the national, ethnic, and religious minority groups in their respective countries, and they borrow heavily from the language of UN, Council of Europe, and OSCE standards in various multilateral instruments.119 Since 1990, for example, Russia has entered into a complex web of bilateral agreements containing minority protections with Lithuania, Latvia, Estonia, Ukraine, Belarus, Moldova, Armenia, Azerbaijan, Kazakstan, Kyrgyzstan, Georgia, Tajikistan, Uzbekistan, Turkmenistan, and a number of the previously independent states (including the Federal Republic of Germany, Poland, Finland, Hungary, and Slovakia).120 This network of bilateral ties evidences an attempt by Russia to set legal standards and expectations governing the status of ethnic Russians and the behavior of neighboring states. On October 21, 1994, Russia also concluded a CIS convention guaranteeing the rights of persons belonging to national minorities. The convention expressly recognizes existing international human rights standards and, in the area of religious rights, contains legally binding obligations in line with the principles enshrined in the 1981 Declaration.121 Concerns have been raised, however, that this attempt by Russia to develop standards and practices of minority protection among the CIS states may indicate a lack of willingness to implement OSCE, UN, and Council of Europe norms. This fear is further confirmed by the fact that the CIS standard on minority rights is both lower than international standards and dramatically skewed toward the protection of ethnic Russians.122 This type of state political self-interest is, of course, one of the major dangers of bilateral treaty arrangements regarding human rights protections when compared to either regional or global human rights treaty regimes. Likewise, both Poland and Hungary have entered into a series of bilateral

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treaties and declarations.123 The most heavily negotiated and controversial issue in these treaties has been the pursuit of autonomy protections for minority groups—that is, autonomous minority self-governing bodies and autonomous structures in neighboring “kin” states. Hungary, in particular, has sought strong protections for the autonomy of Hungarian minority groups in other states, while neighboring states such as Slovakia and Romania have rejected any recognition of collective rights that would “admit the creation of autonomous structures on the ethnic principle.”124 It would appear that the concept of autonomy is closely associated by these states with notions of internal territorial delimitation and even separatism and, as noted in the Introduction to this collection, this immediately elevates minority issues to a question of national security. Nevertheless, it is pertinent to recall that Slovakia’s entry into the Council of Europe was ultimately delayed until such time as it had demonstrated compliance with specific provisions on minority rights.125 What can we conclude about the comparative strengths and weaknesses of bilateral treaty arrangements in the area of the rights of religious minorities? Their main advantage would appear to be in contributing to regional stability and confidence-building. However, it is equally clear that weak and politically self-interested treaties can ultimately have the opposite effect and cause destabilization. Similarly, while international human rights norms and standards have had a strong influence on the content and language of these bilateral arrangements, it is equally clear that many of these agreements fall short in important respects in comparison with internationally accepted standards. Thus, while bilateral agreements may be tailored to be more situation specific, there is a tendency to relegate multilateral standards to the background if they prove inconvenient to entrenched state interests.126 Alfredsson summarizes the legal and political disadvantages of bilateral minority treaties as follows: • • • •

•

the danger of reduced standards as compared with the international and regional instruments, the emphasis on political rather than legal commitments, the unequal position of the parties to the situation, the possible discrimination between different groups within a contracting state, prompting a proposal for the ‘most-favored-minorityclause,’ and the possible destabilizing effects on relations between the parties.127

In Alfredsson’s view, long-term peaceful relations between Central and Eastern European states would be better served by eliminating any direct role for kinship states and by transferring the role of guaranteeing and monitoring respect for minority rights to the more balanced and objective scrutiny of international

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and regional organizations (that is, the monitoring mechanisms of the UN, OSCE, and Council of Europe). The history of religious wars in the region dating back centuries reveals that the wish to protect religious minorities has frequently been used by rulers as the reason for their intervention in foreign states. This suggests that regional and international approaches—at least in addition to, or as a supervisory check on, bilateral arrangements—offer a preferable way to advance peaceful relations and respect for human rights.128

b. unilateral monitoring and the u.s. international religious freedom act of 1998 The second form of external scrutiny is unilateral monitoring. The U.S. has been perhaps the most aggressive of all states in the world in scrutinizing human rights abroad as a key part of its foreign policy agenda and its relations with other countries. As Michael Young notes, the U.S. often employs economic leverage in dealing with targeted problems like human rights, environment, and labor.129 In this section, I review the means by which the U.S. currently seeks to monitor and protect the rights of religious minorities in other countries. In 1998, President Clinton signed the International Religious Freedom Act of 1998 thereby directly incorporating concern for religious freedom into U.S. foreign policy.130 The Act relies on the rationale that the U.S. has an obligation (derived primarily from its constitutional history, which places great importance on ideas of religious freedom, and from international law) to support and protect religious minorities around the world by fighting religious intolerance in states that limit the religious rights of their people. Under the Act, the U.S. will investigate allegations of religious persecution worldwide and pursue diplomatic, cultural, or economic measures against those states where religious discrimination exists.131 As noted above, the Act achieves these ends by establishing an Office of International Religious Freedom within the U.S. State Department to which an Ambassador-at-Large is appointed. The Ambassador-at-Large is responsible for investigating states that deny religious freedom, proposing potential U.S. responses and acting as a policy advisor to the President on religious matters. Similar to many multilateral treaty regimes, the Act requires the Ambassador-at-Large to produce an annual report on international religious freedom highlighting states of “particular concern for religious freedom.” The Act also creates a Commission on International Religious Freedom which has nine members (in addition to the Ambassador-at-Large) and which is responsible for monitoring the effects of other states’ laws, policies, and practices on religious groups. The Commission is also required to submit an annual report to the President setting out its findings and policy recommendations for the U.S. government.

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The key part of the Act, however, is Title IV—Presidential Actions. Under sections 401(a) and (b), the President is required to identify specific countries that the Commission designates as having violated religious freedom and to design a response. Section 402 requires the President to identify countries as “particularly severe” violators of religious freedom thereby putting them on the more punitive sanctions “track” in sections 405(a)(9) through (15). Particularly severe violations are defined to include systematic, ongoing and egregious acts of torture, prolonged detention, disappearances, or flagrant denial of life and liberty. States that do not fall within the “severe” category of section 402 are handled under the less punitive remedial provisions of sections 405(a)(1) through (8). Under section 405—Description of Presidential Actions, the President must (subject to some exceptions) either enter into a binding agreement with a designated state to end religious persecution, or choose from this list of fifteen increasingly punitive provisions. These include a private or public demarche; a private or public condemnation; the delay or cancellation of scientific or cultural exchanges; the denial, delay, or cancellation of working, official, or state visits; the withdrawal, limitation, or suspension of some forms of U.S. aid; direction to public and private international financial institutions to deny assistance; and sanctions prohibiting the U.S. government from entering into import or export agreements with the designated government.132 The Act also contains a provision allowing for a presidential waiver of punitive measures in those instances where a U.S. rebuke of another state may jeopardize “the important national interest of the United States.”133 Finally, while the Act is part of U.S. domestic law it draws expressly on principles of international law in defining the meaning of the right to religious freedom and what acts or practices constitute violations of that right.134 The first report of the Commission was released on September 9, 1999. A thousand pages in length, the report cites Afghanistan, China, Iran, Iraq, Saudi Arabia, and Sudan as the most repressive states. It also contains consideration of and recommendations concerning the situation in the Russian Federation and the 1997 Religion Law. The executive summary states, in similar terms to the findings of the UN Special Rapporteur on Religious Intolerance, that many states were deficient on the following grounds: totalitarian or authoritarian attempts to control religious belief or practice; state hostility toward minority or non-approved religions; state neglect of discrimination against, or persecution of, minority or non-approved religions; discriminatory legislation or policies disadvantaging certain religions; and stigmatization of religions by wrongfully associating them with dangerous “cults” or “sects.”135 Subsequently, on November 3, 1999, the Secretary of State, under authority delegated by the President, designated Burma, China, Iran, Iraq, and Sudan as “countries of particular concern.”136

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How should we assess the legitimacy and effectiveness of unilateral attempts such as the U.S. International Religious Freedom Act of 1998 in combating religious persecution of minorities in other states? The first point to note is that the Act, by isolating one right and developing special machinery by which to protect it, immediately creates a hierarchy of human rights in U.S. foreign policy with religious rights at the apex.137 This has implications for the protection of human rights at both the domestic and international levels. Domestically, as Hans Morgenthau argued half a century ago, this has the potential of depriving the U.S. of the flexibility required to protect overall foreign-policy interests and opens the U.S. to allegations of unequal implementation of its own standards. This explains the inclusion of the presidential waiver provision in the Act, which would allow for exceptions to be made in the case of states such as Saudi Arabia, Israel and China, which are valuable trading or strategic partners that the U.S. cannot afford to offend. Internationally, however, the consequences are more far-reaching. A statecreated hierarchy, especially by one of the world’s most powerful countries, may significantly undermine the universality and “common understanding” upon which the international human rights regime depends.138 This danger is particularly acute in relation to the U.S., which has consistently failed to adhere to the majority of international human rights conventions and has refused to allow international scrutiny of its own domestic human rights situation.139 Other states may perceive a certain lack of good faith on the part of a powerful state that claims to be promoting and protecting international human rights abroad as part of is foreign relations while at the same time remaining highly selective in the rights it elects to promote and in refusing itself to comply or cooperate with multilateral human rights regimes. In the wake of recent Supreme Court decisions such as Employment Division v. Smith,140 where it was held by the Court that religious minority groups (here, an indigenous group—the Native American Church) can claim no special exemption from criminal laws of general applicability, this further suggests that the U.S. may be trying to achieve abroad what it is not practicing at home.141 These dangers were partly acknowledged by Secretary John Shattuck during a hearing before the House Committee on International Relations on an initial version of the bill titled the Freedom From Persecution Act. Shattuck stated that the Bill would create a de facto hierarchy of human rights violations under U.S. law that would severely damage our efforts to ensure that all aspects of basic civil and political rights, including religious freedom, are protected. It would differentiate between acts motivated by religious discrimination and similar acts based on other forms of repression or bias, such as denial of

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political freedom, or racial or ethnic hatred. In doing so, the bill would legislate a hierarchy of human rights into our laws.142 As discussed above, the right to religious freedom is inextricably intertwined and interrelated with other human rights and general issues of democracy, constitutionalism, and the rule of law. Will torture on the basis of religious belief now receive preferential treatment as a matter of U.S. foreign policy in comparison with, say, torture or suppression on the basis of political or other factors? Can religious freedom ultimately be respected and ensured without corresponding protections for all other human rights (including both civil and political and economic, social, and cultural rights)? The Act has the effect of artificially elevating just one aspect of a complex series of relationships for special treatment and ignores the root causes of human rights violations. The second point to observe is the attempt by the U.S. to justify the Act by reference to international standards and definitions regarding religious freedom while reserving to itself a domestic means to promote and protect those standards. Rather than investing its resources and political power in supporting existing international and regional treaty regimes and mechanisms, in particular the badly under-resourced UN Human Rights Committee, the Special Rapporteur on Religious Intolerance, and the Office of the High Commissioner for Human Rights, the U.S. has opted instead to create its own domestic commission and bureaucracy within the State Department. What this evidences is not a general lack of respect for human rights (leaving aside for now U.S. nonadherence to conventions such as the ICESCR, CRC, and CEDAW143) but a failure of international cooperation.144 Of course, by employing domestic means of implementation the effectiveness of the Act is increased, at least from the U.S. point of view, by avoiding the need for achieving consensus with other states and by side-stepping the bureaucratic and political constraints of a multilateral organization. But as with the bilateral agreements discussed in the previous section, this increase in effectiveness is achieved at expense to the ideas of the universality and interrelatedness of human rights with international standards being co-opted by a powerful state for subjective political and strategic purposes.145 This demonstrates an imperialist approach to human rights and runs counter to the aims and spirit of the international human rights movement upon which both the Act and the Commission strongly depend for their legitimacy.146 The final point to consider is whether the Act’s punitive sanctions-based approach will be effective in achieving the ends it seeks, and how that approach compares with the implementation mechanisms under regional and global human rights regimes. In order to address these issues, it is first necessary to understand why states violate human rights (here the rights of religious minorities

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in particular) and what the incentives are for states to comply with international regulatory regimes. It is to these issues that I now finally turn.

VI. ASSESSING THE EF FECTIVENESS OF MULTILATERAL AND BILATERAL MONITORING OF FREEDOM OF RELIGION OR BELIEF

a. bilateral versus multilateral regime compliance The raison d’eˆtre of the unilateral sanctions-based approach underlying the International Religious Freedom Act of 1998 was expressed by the republican representative Chris Smith during debate over the Act in 1997: Tyrants understand strength. They also understand weakness . . . . This bill is designed to help people whose situation is particularly compelling, and with whom many Americans feel strong bonds of affinity and obligation.”147 The rationale for the Act is to use the force and influence of U.S. economic and political power to punish those states which engage in egregious violations of the rights of minority religious groups of special concern to U.S. interests (although presumably only in cases where U.S. economic or strategic considerations are not paramount). The Act does allow for flexibility in this regard and the government is able to select from a sixteen-item menu of measures ranging from milder actions such as diplomatic protest, to harsher measures such as the imposition of sanctions and the termination of diplomatic relations. The philosophy of the Act, therefore, is punitive or coercive rather than cooperative or incentive-based. It is a stick—not a carrot—to be employed against “rogue” (most likely Islamic or communist) states. Is such an approach effective? There are I believe, in addition to the concerns outlined above, two major weaknesses to this form of unilateral pressure and sanctions. First, policies of this sort may actually do more harm than good to the very religious minorities whose protection is sought to be achieved.148 The vast literature on the use of economic sanctions against states such as Iraq and Cuba reveals that it is often the weakest and most vulnerable that are most affected by such policies.149 Second, it is far from clear that sanctions and related punitive measures are effective in enforcing belief-related rights. If problems of religious discrimination, intolerance, nationalism, and ethnic conflict are as complex and systemic as the various UN Special Rapporteurs have suggested,

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then sanctions may be merely a crude response directed at the symptoms of the problem leaving the root causes at the heart of the violations unaddressed. If this is correct, do regional or multilateral human rights treaty regimes offer a viable alternative? It is clear that at a normative level, international instruments and institutions have greater legitimacy and objectivity in dealing with human rights violations. All states are held to the same standards and therefore the political and national interest dimensions that are so evident in bilateral mechanisms are diminished (although not entirely removed). The concern at the international and regional levels has always been that of effective implementation. The apparent failings and lack of “teeth” of the various UN treaty bodies and actors are often pointed to by U.S. policymakers as justifications for unilateral or bilateral measures. Of course, the U.S. itself has consistently acted to impede the operation of the UN by withholding funding and refusing to adhere to most international human rights treaties, a fact usually obscured in this calculus. Nevertheless, the question remains whether treaty regimes, even if better resourced and widely supported, can be effective in inducing compliance with human rights norms. This involves many complex questions of regime and compliance theory that are beyond the scope of this chapter. However, let me make a few remarks in the context of international monitoring and protection of the rights of religious minorities. At the heart of this debate are competing conceptions of the international order. Realist international relations theorists perceive a world of moral, political, and legal anarchy where state power and self-interest are the dominant variables.150 From this vantage point, economic and military sanctions and related coercive measures are the lingua franca of international relations. Liberal international law and human rights theorists, on the other hand, start from the assumption famously made by Professor Henkin in the late 1970s that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”151 The assumption underlying the international and regional mechanisms considered in this chapter is that states have a general “propensity to comply” with international obligations. As we have seen, foreign ministers, diplomats and government leaders in Eastern and Central Europe have devoted enormous time, energy, and resources to preparing, drafting, negotiating, and monitoring treaty obligations. Whether this results in legally binding obligations such as the ICCPR or ECHR, or more soft law regimes such as the OSCE, the assumption is that state freedom of action is thereby limited and an expectation arises that other parties to these instruments will be similarly constrained.152 In the absence of an effective international police force or judicial system, states bind themselves to observe the law (and in this sense compliance is not voluntary) but their compliance is induced not coerced.153

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The issue then is why states should comply with these norms and how outside actors can induce compliance. Chayes and Chayes have advanced the thesis that as a practical matter, coercive economic—let alone military—measures to sanction violations cannot be utilized for the routine enforcement of treaties in today’s international system, or in any that is likely to emerge in the foreseeable future. The attempt to devise and incorporate such sanctions in treaties is largely a waste of time.154 Chayes and Chayes further assert that the primary sources of noncompliance with treaties are not deliberate violations but rather factors such as the ambiguity and indeterminacy of treaty language, limitations on the capacities of parties to carry out their undertakings, and the temporal dimension of the social, economic, and political changes contemplated by regulatory treaties.155 If this is correct, this should affect how resources and energy can most effectively be committed to improve compliance with international treaty obligations. My argument here is that even though international and regional treaty regimes may rely on comparatively weaker mechanisms such as state reporting and individual communications, over time these procedures create a dialogic process by which the compliance-pull increases incrementally. The process is one of multilateral cooperation, objective external scrutiny and ideally, as in the case of the ECHR, provision of legally binding remedies to individuals the subject of violations. If this path is pursued then compliance becomes a question of measures designed to persuade (rather than coerce) such as ensuring transparency, providing dispute settlement mechanisms, and increasing capacity building and technical assistance.156 As states participate in the regime, appear before treaty bodies, respond to requests and submit reports this should lead to readjustments to domestic laws, policies, and practices. In this way a “justificatory discourse” becomes the principal method of inducing compliance with all states bound in a “tightly woven fabric of international agreements, organizations, and institutions that shape their relations with each other and penetrate deeply into their internal economics and politics.”157 The situation of minority groups in Europe today bears out many of these ideas. In the context of minority disputes since the 1990s, Ratner has argued that the role of actors such as the OSCE High Commissioner on National Minorities (whom he terms a “normative intermediary”) and regimes such as the ICCPR, ECHR and OSCE have eased tensions within states and helped to ensure that disputes are solved in a norm-based way. While “hard” law enforcement through domestic and international courts has been a key means by which to protect the rights of individuals, Ratner suggests that compliance with

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soft law instruments in the area of minority rights has been surprisingly effective.158 If in fact, at least in an ideal world, international and regional mechanisms are to be preferred to bilateral and unilateral measures, how can the former be made more effective and what are the main obstacles to that objective? In my view, the two contentious areas requiring future work and reform are first, limited agreement on international standards in the area of minority rights and second, current institutional and bureaucratic deficiencies of treaty supervisory bodies.

b. limited agreement on international standards It has been suggested by some scholars that, even before considering issues of institutional effectiveness and strategy, a major shortcoming of UN monitoring mechanisms is the absence of agreement among states on the applicable international standards governing issues of freedom of religion or belief. Table 4.1 sets out the essential provisions in international human rights instruments regarding religious freedom. In assessing these standards, Young has argued that: International human rights documents such as the Covenant on Civil and Political Rights serve as useful starting points to agreement, but they are only starting points. Careful examination of the language and meaning of these documents reveals them to be both over-and under-inclusive. Monitoring religious liberties presents particularly difficult issues because religious liberties underlie culture, nation-building, history, and a whole range of things even more fundamental than other basic civil and human rights discussed in the international arena. Thus, developing some sort of consensus on monitoring religious liberties presents a considerable challenge.159 According to Young, one of the primary reasons for this lack of consensus is the absence of any systematic, effective and universally legitimate method for developing a consensus among countries. This lack of consensus increases the possibility of power politics, including the use of powerful economic and geopolitical positions to define the debates that are otherwise undefinable. For example, to the extent countries are unwilling to engage in this debate or work in good faith to establish mechanisms to decide issues of

Arts. 10, 18(a), 24, 25

Islamic Conference

Cairo Declaration

1989 Vienna Document, Principles 16 and 17

OSCE

Art. 9

Arts. 1, 6

UN Religion Declaration European Convention

No 22

General Comments

Council of Europe

Art. 18

ICCPR

United Nations

Freedom of Religion

Instrument

Body

Art. 1

Art. 14

Arts. 2, 3, 4

No. 18

Arts. 2(1), 26

Nondiscrimination on the Basis of Religion

1990 Copenhagen Document, para. 40 1991 Geneva Document Part VI

1990 Copenhagen Document, paras. 30–39 1991 Geneva Document Parts III–IV

Art. 22

Framework Convention Art. 6

Race Convention Art. 4

No. 11

Arts. 19 and 20(2)

Protection from Incitement to Hostility, Violence, and Discrimination on the Basis of Religion

Framework Convention; esp. Arts. 3, 4, 5, 8, 12, 13, 15, 17, 19, 20, 21

UN Minorities Declaration Arts. 1–4, 8(3)

No. 23

Art. 27

Right of Religious Minority Members to Profess & Practice Their Religion

table 4.1 International Human Rights Related to Freedom of Religion and Belief

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this sort, some countries—the United States, for example—will take matters into their own hands and begin to pressure countries to adhere to a standard that is not necessarily universally recognized, but that is imposed by the most powerful.160 It is of course correct that there is not uniform agreement among states on international standards of religious freedom, or indeed on the definition of the term “religion” itself.161 Furthermore, there remain marked points of disagreement among states as a matter of practice. For example, while the freedom to change one’s religion or belief is entrenched in international human rights standards, its acceptance by many states remains controversial.162 In many Muslim states, for example, it is considered a central tenet of Islam that there may be no coercion in matters of religion. Certain contemporary interpretations of Islam, however, do not accept the right of a person to abandon their religion or to convert to another, and it is a capital offence under Islamic law for a Muslim to repudiate his or her faith in Islam.163 Accordingly, many Islamic states do not formally accept the Human Rights Committee’s interpretation of the right to “have or adopt” a religion as meaning the right to replace one’s current religion or to adopt atheistic views.164 The result is that today a number of Islamic countries stand outside of international human rights standards.165 This problem has been further exacerbated by the progressive dilution of the language in the International Bill of Rights and ensuing documents. Article 18 of the UDHR speaks explicitly of the right “to change” one’s religion, whereas the corresponding article in the ICCPR speaks only of the right “to have or adopt” a particular religion or belief. While this change in wording does not deny the right to change religions, it does signal the reluctance of many states to openly confront the implicit consequences of this right.166 Likewise, proselytizing167 and conscientious objection168 continue to be issues that arouse controversy and dissent. It will come as no surprise that these uncertainties and disagreements are also evident in the area of the rights of religious minorities. As discussed in the Introduction to this collection,169 Article 27 of the ICCPR guarantees to religious minorities the right, in community with the other members of their group, to profess and practice their own religion. The formulation of Article 27, however, has raised a number of questions. First, there is disagreement as to what constitutes a “religious minority.”170 Second, there is uncertainty regarding the relationship between Articles 27 and 18. In order for Article 27 to have any independent meaning, it must extend beyond the ambit of protection provided by Article 18. The issue then becomes the extent to which the purpose of Article 27 is to grant collective rights to the members of a religious minority qua a group,171 or merely to accord rights to individuals by devolving an obligation on states to adopt active measures aimed at the preservation of the minority

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group’s identity in the areas of culture, language and religion.172 This question is controversial and different UN member states have adopted divergent viewpoints.173 The individual orientation of Article 27 indicates that members of religious minorities will always be protected from discrimination by the state or dominant religious group on the basis of their membership in their own ethnic, linguistic, or religious minority. However, this protection is premised on the assumption that individuals have the right to choose whether or not to be a member of the group and that this is not a decision for the minority group itself. In other words, there must be a right of exit. Capotorti has described the reasons for this as follows: [T]he need to safeguard the freedom of choice of any member of a minority deserves attention. Every individual has the right to decide for himself whether he prefers to be treated as a member of the group, enjoying the protection that will preserve its special character—or to be assimilated into the remainder of the population. A decision on this vital point should never be left to the group. Experience teaches that many minorities tend to become oppressive toward their members as soon as some of them show a spontaneous tendency to choose integration within the majority. To consider the protection of collective values of the group as the only goal worthy of pursuit by international norms concerning minorities is dangerous in that dissenting individual members of a minority could get dragged, under the cover of the unitary policy of the group, by the policy actually carried out by its dominant circles.174 Thus, in accordance with Kymlicka’s distinction between “external protections” (where the minority group asserts rights against the economic or political decisions of the majority) and “internal restrictions” (where the minority group demands rights or restrictions against its own members),175 the position under Article 27 is that both situations may be permissible provided individual members have the right to choose whether to remain as a member of their religious group. Of course, this issue will often implicate the troubled question of the right to change religions discussed previously. Whether Article 27 is understood to grant collective or individual rights, its main purpose over and above the protection accorded to individuals under Article 18, is to require the state to adopt “positive measures” of protection such as may be necessary to protect the identity of the minority. The Human Rights Committee has stated that such measures are not inconsistent with the general obligations under Articles 2(1) and 26 of the ICCPR against discrimination provided they are based on reasonable and objective criteria.176 Likewise, the UN Declaration on the Rights of Persons Belonging to National or Ethnic,

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Religious or Linguistic Minorities,177 the Council of Europe’s Framework Convention for the Protection of National Minorities,178 and the CSCE Copenhagen Document179 all provide that positive measures taken by the state to protect the rights of minority groups do not violate the principles of equality and nondiscrimination. Thus, in order to fulfill their obligations under Article 27 states may need to provide minority religions privileges and benefits similar to those provided to the dominant religion where the minority is otherwise inhibited in the exercise of their right to freedom of religion. How far this may extend beyond the nondiscrimination provisions in Articles 2(1) and 26 remains an open question.180 A closely related issue to that raised by Young regarding lack of consensus on international standards is the problem of harmonizing religious laws with international human rights standards. This has become a volatile and sensitive issue in international relations, particularly regarding the relationship between Islam and human rights. Kevin Boyle describes the issue as follows: There is a clear challenge of explanation in arguing that the core of tolerance is to accept the reality of diversity of religions and belief in the world, while rejecting the thesis that the substance of this freedom may be different in different cultures. Thus some interpretations of shariah law pit Islam against the principle of the primacy of international law, and practices in other countries based on national law directly ignore the requirements of the right to freedom of conscience, religion and belief. The case of China comes to mind. All claims to universality of rights have a credibility problem when we contemplate the denial of full religious freedoms and other rights to the one fifth, or one quarter of the world’s population who are Chinese. Nevertheless, the priority accorded to the core international law standards with respect to human rights cannot be answered as a matter of international law by claims of national sovereignty or the requirements of religious law or custom.181 It is the combination of these two factors—absence of consensus on mutually agreed standards and challenges to the universality of human rights—that Young suggests has led powerful states such as the United States to become impatient with multilateral mechanisms and to turn instead to bilateral approaches, thereby avoiding the need for obtaining consensus. In my view, however, Young’s analysis is overly pessimistic and ignores the progress that has in fact been made in defining and universalizing international standards since the birth of the UN Charter in 1945. Disagreement over the meaning of human rights is not unique to the right to freedom of religion or belief. While controversy will always exist over specific conceptions of religious freedom, I would argue that the relevant provisions of the UDHR, ICCPR, and

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the 1981 Declaration when viewed together, and in conjunction with the General Comments of the Human Rights Committee, provide a strong foundation for convergence on core minimum standards. There is, for example, growing overlapping consensus among states, albeit at a high level of abstraction, on the idea that freedom of religion or belief requires a rejection of “claims to a monopoly of truth.”182 In this regard, the landmark Krishnaswami study has exerted a powerful influence and has assisted in the progressive development of international standards that are gradually becoming incorporated into constitutional and domestic legal systems.183 Despite the “historical backdrop of civil strife, international warfare and ideological conflict fueled by religion, the [1981] Declaration stands as a milestone in the progressive development of human rights norms.”184 In concluding her analysis of the 1981 Declaration, Sullivan cautions against new standard-setting efforts and movement toward a binding convention. While some of the Declaration’s provisions undoubtedly make major concessions and are drafted in over-broad or vague language, the document nevertheless stands as a major advance in the development of international norms in this area. Given the complexity and sensitivity of the issues raised by the Declaration, efforts focused on improved implementation are arguably the better course at this time.185

c. institutional deficiencies The second major obstacle to the effective international monitoring of religious freedom is the severe resource and bureaucratic constraints faced by international human rights treaty bodies and related institutions. Little has highlighted the two major deficiencies with the UN role in protecting and monitoring human rights. The first is financial—less than two percent of the overall UN budget is dedicated to the promulgation, promotion, and implementation of human rights.186 The second is structural—the main problem being the uncoordinated proliferation of UN human rights activities and bodies and the fact that the United Nations is not an effective international authority, one capable of consistently enforcing international human rights. Therefore, even though human rights standards may be adequately articulated, and relatively well disseminated and affirmed (in theory), there are serious deficiencies regarding implementation. Instead of the impartial and reliable system of human rights adjudication and implementation that was originally envisioned, standards get applied sporadically and selectively, and in a way that is subject most decidedly to political influence.187

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UN human rights implementation effectiveness is subject to internal constraints deriving from the nature of the bureaucracy and the pressures placed on it by member states. These constraints have an impact on leadership, the quality and morale of staff, and on the availability of resources.188 Both the Human Rights Commission and the recently created post of OHCHR are subject to the political manipulation and financial constraints imposed by member states. On the issue of monitoring compliance by states with their international human rights obligations, Elizabeth Evatt has noted that at a period when the treaty bodies are seeking to make the monitoring system more effective, and when the demands on them are increasing (with more parties, more reports, and more individual communications), the resources available to support their work seems to be diminishing.189 In this sense, the success of the treaty bodies in developing innovative monitoring techniques and in ensuring the participation of states and NGOs has ironically created a crisis that needs to be addressed if paralysis of the system is to be avoided.190

VII. C ONC LUSION Despite these obstacles, I believe that the basic assumptions upon which international and regional human rights treaty body regimes are based remain sound and that these mechanisms are to be preferred to bilateral or unilateral responses. In particular, incremental normative influence through universal participation in these systems has been shown to be occurring in spite of severe financial and structural constraints. In Europe, the implementation of international human rights standards into domestic law in conjunction with full participation in treaty regimes such as the ECHR and the ICCPR is creating a culture of rights and encouraging increased compliance by member states. The future success of these processes will be linked to the degree to which all civil society actors, especially NGOs and individuals whose rights have been violated, are able to obtain access to these mechanisms. Improved access must be combined with the distribution among participating groups of the tools, resources, and information necessary to make their participation meaningful. By progressively developing and coordinating the efforts of international organizations, regional bodies, and NGOs it may be possible to forestall the premature action of powerful states, such as the U.S., which are impatient to employ bilateral and unilateral approaches to address global problems.

endnotes 1. For example, early recognition of the concept of freedom of thought and conscience can be traced to the Platonic Dialogues: see Hugh Tredennick and Harold

178 p ete r g. da nchin Tarrant (eds.), Plato, The Last Days of Socrates—Euthyphro, Apology, Crito, Phaedo (England: Penguin Books, 1993). 2. Summa Theologica, II, II, q.10, a.11 cited in Tad Stahnke and J. Paul Martin (eds.), Religion and Human Rights: Basic Documents 3 (New York: Center for the Study of Human Rights, 1998). 3. De Fide, Disp. 18, sect. 4, No.10 cited in ibid. 4. John Locke, Epistola de Tolerantia: A Letter on Toleration, edited by R. Klibansky and translated by J. W. Gough (Oxford, 1968). For an early account of the tension between liberty of conscience and speech and limits on the power of government, see A. S. P. Woodhouse (ed.), Puritanism and Liberty, Being the Army Debates (1647–49) from the Clarke Manuscripts 58ff (London: J. M. Dent, 3rd ed., 1992). 5. For a discussion of the development of the right to freedom of thought, conscience, and religion from the writings of early thinkers, into national law, and ultimately into international law, see Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, U.N. Doc. E/CN.4/Sub.2/200/Rev.1, UN Sales No. 60 XIV.2 (1960). See also Natan Lerner, Group Rights and Discrimination in International Law (Netherlands: Martinus Nijhoff, 1990). 6. See, e.g., the Treaty of 1536 signed by Francis I of France and Suleiman I of the Ottoman Empire (allowing for the establishment of French merchants in Turkey and granting them individual religious freedom): see Krishnaswami Study, above n. 5, 11. See also Treaty of Oliva (1660) (in favor of the Roman Catholics in Livonia, ceded by Poland to Sweden); Treaty of Nimeguen (1678) (between France and Spain); Treaty of Ryswick (1697) (protecting Catholics in territories ceded by France to Holland); Treaty of Paris (1763) (between France, Spain and Great Britain in favor of Roman Catholics in Canadian territories ceded by France): see Lerner, above n. 5. 7. See further Malcolm D. Evans, Religious Liberty and International Law in Europe 42–74 (United Kingdom: Cambridge University Press, 1997). 7. See Article 18 of the Universal Declaration of Human Rights, Adopted and Proclaimed by United Nations General Assembly Resolution 217A (III) on 10 December 1948; Article 18 of the International Covenant on Civil and Political Rights, Adopted and Opened for Signature by the United Nations General Assembly Resolution 2200A (XXI) on December 16, 1966, Entered into Force 23 March 1976. 8. Resolution Adopted by the General Assembly on November 25, 1981 [on the Report of the Third Committee (A/36/684)]. 9. United Nations Seminar on The Encouragement of Understanding, Tolerance and Respect in Matters Relating to Freedom of Religion or Belief, Geneva, Switzerland, December 3–14, 1984, UN Doc. G/SO 216/3 (37); ST/HR/SER.A/16, 6. 10. In particular, Islamic fundamentalism has risen in the Middle-East and North Africa. Following the end of the Cold War, civil conflict of an inter-religious and ethno-religious nature emerged in Central and Eastern European states. In many respects, these conflicts have triggered a new interest in the connection between religion, international law, and politics: see, e.g., Mark W. Janis (ed.), The Influence of Religion on the Development of International Law (Kluwer Academic Publishers, 1991).

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11. David Little, Studying “Religious Human Rights”: Methodological Foundations, in Johan D. van der Vyver and John Witte, Jr (eds.), Religious Human Rights in Global Perspective—Legal Perspectives 46 (The Hague: Martinus Nijhoff Publishers, 1996). 12. See Thomas Lynch, The International Religious Freedom Act of 1998, 6 Hum. Rts. Br. 18 (1999). 13. Kevin Boyle and Juliet Sheen (eds.), Freedom of Religion and Belief: A World Report (London: Routledge, 1997). 14. Yoram Dinstein, Freedom of Religion and the Protection of Religious Minorities, Israel Yearbook on Hum. Rts. 145, 146 [1992]. 15. Abdelfattah Amor, Implementation of the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Economic and Social Council, Report Submitted in accordance with Commission on Human Rights Resolution 1996/ 23, E/CN.4/1997/91, 30 December 1996, paras. 18–24. 16. Dinstein, above n. 14, 165–8. 17. Andrew Clapham, Human Rights in the Private Sphere 1 (New York: Oxford University Press, 1993). 18. See Donna Sullivan, Advancing the Freedom of Religion or Belief Through the UN Declaration on the Elimination of Religious Intolerance and Discrimination, 82 Am. J. Int’l. L. 487, 501 (1988). See also Theodor Meron, Human Rights LawMaking in the United Nations: A Critique of Instruments and Process 153–60 (1986). 19. Ibid. 510. 20. See Religion, Religious Minorities and Human Rights: An Introduction, above at n. 34 and accompanying text. 21. See, e.g., Vidal D’Almeida Ribeiro, Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N. Doc. E/CN.4/1987/35, para. 89 (1986); Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23, Pt I, para. 30 (1993). 22. Elizabeth Odio Benito, Study of the Current Dimensions of the Problems of Intolerance and of Discrimination on Grounds of Religion or Belief, U.N. Doc. E/CN.4/ Sub.2/1987/26 (1986) para. 18. 23. Bahiyyih G. Tahzib, Freedom of Religion or Belief—Ensuring Effective International Legal Protection 24–5 (The Hague: Martinus Nijhoff Publishers, 1996). 24. See Abdullahi An-Na’im, Religious Minorities under Islamic Law and the Limits of Cultural Relativism, 9 Hum. Rts. Q. 1, 9 (1987). 25. See Abdullahi An-Na’im, Religious Liberty in Egypt: Under the Shadow of the Islamic Dhimma System and Khalid Duran, Religious Liberty and Human Rights in the Sudan in Leonard Swidler (ed.), Religious Liberty and Human Rights in Nations and in Religions 45, 61 (Philadelphia: Ecumenical Press, and New York: Hippocrene Books, 1986). 26. Tahzib, above n. 23, 26. 27. See 1986 Benito Report, above n. 22, para. 167. 28. See 1987 Ribeiro Report, above n. 21, para. 1.

180 p e te r g. da nchin 29. See generally Tahzib, above n. 23, 27–33. 30. For a useful overview of this issue, see W. Cole Durham, Perspectives on Religious Liberty: A Comparative Framework in van der Vyver and Witte, above n. 11, 1–44. 31. Tahzib, above n. 23, 5. 32. Amor Report, above n. 15, para. 83. 33. See Amartya Sen, Development as Freedom 146 (New York: Random House, 1999). 34. See Donald W. Shriver, Religion and Violence Prevention in Barnett R. Rubin (ed.), Cases and Strategies for Preventive Action, Papers from the Center for Preventive Action’s Third Annual Conference, vol. 2 (New York: Century Foundation Press, 1998). 35. Note, however, that both Byrnes and Goeckel offer cautionary notes about the capacity of religious organizations to protect the rights of religious minorities: see Byrnes, Chapter 15; Goeckel, Chapter 16. 36. Preventing Deadly Conflict, Final Report, Carnegie Commission on Preventing Deadly Conflict 114 (1997). 37. See especially the 1965 Declaration by the Vatican II Council on the Relation of the Church to Non-Christian Religions (Nostra Aetate) which states that “[i]n our time, when day by day mankind is being drawn closer, and the ties between different peoples are becoming stronger, the Church examines more closely the relationship with non-Christian religions.” 38. Preventing Deadly Conflict, above n. 36, 116–17. 39. Michael K. Young, Religious Liberties and Religious Tolerance: An Agenda for the Future, 4 B.Y.U. L. Rev. 973, 983 (1996). 40. See Michelle Mack, Religious Human Rights and the International Human Rights Community: Finding Common Ground—Without Compromise, 13 Notre Dame J. L. Ethics. & Pub. Policy 455 (1999) (arguing for reconciliation and mutual support between religion and human rights despite their sometimes difficult and paradoxical relationship). 41. Louis Henkin, Constitutions and the Elements of Constitutionalism, Occasional Paper Series, Center for the Study of Human Rights, Columbia University, November 1992, at 1. 42. See Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe ix–x (2000). 43. Ismail Mohamed, Constitutional Court of South Africa in Cheryl Saunders (ed.), Courts of Final Jurisdiction—The Mason Court in Australia 173 (Sydney: Federation Press, 1996). 44. Article 36(2) protects “the right to study and use their own language alongside the compulsory study of the Bulgarian language” and Article 54(1) protects the right “to develop his own culture in accordance with his ethnic identification.” Article 6 bars “restrictions of rights on the grounds of . . . nationality, ethnic self-identity . . . [and] religion.” 45. Articles 11 and 12. See Schwartz, above n. 42, 184. 46. According to Morton Sklar, a large Turkish minority in the Razgrad area claimed state interference with their religious freedom on the grounds that only one

External Monitoring 181 inadequate Moslem mosque was kept open: Morton Sklar, Memorandum to Council of Europe and UN Human Rights Agency, June 15, 1992, cited in Schwartz, above n. 42, 305–6. 47. See Vanelin Ganev, Judicial Independence and Post-totalitarian Politics: The Case of the Bulgarian “Law on Judicial Power,” 3 Parker Sch. J. Eur. L. 227 (1996), cited in in Schwartz, above n. 42, 184. 48. Decision 5/92, A.C. 11/92, June 11, 1992. 49. The European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature by the Council of Europe on November 4, 1959, and entered into force on September 3, 1953: see Martin and Stahnke, above n. 2, 140. 50. Schwartz cites Rumyana Kolarova as authority for this proposition: see Schwartz, above n. 42, 303, fn 54. 51. Ibid. 185. 52. Schwartz, above n. 42, 234. 53. See Snapshots from around Europe, Roma Rights, Summer 1997, 10. 54. Symposium Report, Symposium on Public Interest Law in Eastern Europe and Russia, Constitutional and Legislative Policy Institute, Budapest, June 29—July 8, 1997, University of Natal, South Africa, Chapter titled “Litigation Project on Discrimination Against Roma,” 27. 55. Schwartz, above n. 42, 211. 56. Similarly, Latvia’s admission to the European Union in 1999 was linked to implementation of recommendations made by the OSCE High Commissioner on National Minorities on citizenship and language: see Steven Ratner, Minority Disputes in Europe: Toward New Roles for International Law, 32 N.Y.U. J. Int. L. & Pol. 591, 639 (2000). 57. See further Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. Chicago. L. Rev. 447 (1991). 58. Louis Henkin, The Age of Rights 51–3 (New York: Columbia University Press, 1990). 59. The original Conference on Security and Co-operation in Europe (CSCE) was based on an intergovernmental conference of all European states, the United States of America and Canada in the first half of the 1970s. This conference resulted in the signature of the Final Act of Helsinki in August 1975. On the basis of the Final Act, an increasing number of CSCE follow-up meetings and specialized conferences took place which resulted in the CSCE being referred to as the “CSCE process” or “Helsinki process”: see Arie Bloed, Monitoring the CSCE Human Dimension: In Search of its Effectiveness in Arie Bloed, Liselotte Leicht, Manfred Nowak, and Allan Rosas (eds.), Monitoring Human Rights in Europe: Comparing International Procedures and Mechanisms 45 (Netherlands: Martinus Nijhoff, 1993). See further chapter 6 by Jeremy Gunn in this volume. 60. 30 Int. Leg. Mat. 1670, 1672 (1991) cited in Henry J. Steiner and Philip Alston (eds.), International Human Rights in Context: Law, Politics, Morals 590 (New York: Oxford University Press, 2nd ed., 2000). 61. See Michael Young, External Monitoring of Domestic Religious Liberties, 2 B. Y. U. L. Rev. 501, 503 (1998).

182 p ete r g. da nchin 62. See, e.g., Martti Koskenniemi, The Pull of the Mainstream, 88 Mich. L. Rev. 1946 (1990) (discussing the extent to which states are bound by humanitarian or human rights norms regardless of treaties, by way of custom). 63. Oscar Schachter, The UN Legal Order: An Overview in Christopher C. Joyner (ed.), The United Nations and International Law 14 (United Kingdom: Cambridge University Press, 1997). 64. Ibid. 65. UN Charter, Art. 1(3). See also David Little, Protecting Human Rights During and After Conflict: The Role of the United Nations, Tulsa J. Comp. Int. L. 87, 87 (1996). 66. See CHR Res. 1995/23 of Feb. 24, 1995, UN Doc E/CN.4/1995/L.11/Add.1 (1995) at 41–5. 67. CHR Res. 1983/40. The request was endorsed by ECOSOC in its Dec. 1983/ 150, UN ESCOR, 1983, Supp. No 1, 15th plen. mtg. at 41, UN Doc E/1983/83 (1984). 68. The mandate of the OHCHR derives from Arts. 1, 13 and 55 of the UN Charter, the Vienna Declaration and Programme of Action and GA Res. 48/141 of 20 December 1993, by which the GA established the post of United Nations High Commissioner for Human Rights: see http://www.unhchr.ch/html/hchr.htm. 69. Report of the Secretary-General to the GA, Renewing the United Nations: A Programme for Reform, A/51/950, ¶ 79, July 14, 1997, available at. http://www.unhchr.ch/ html/hchr/unrefor.htm. 70. Judicial monitoring is employed in treaty regimes such as the Genocide Convention which allows for disputes in relation to a state’s responsibility for genocide to be submitted to the International Court of Justice at the request of any of the parties. Quasi-judicial mechanisms encompass the treaty bodies established by the major international human rights conventions: see Alison Jernow, Ad Hoc and ExtraConventional Means for Human Rights Monitoring, N. Y. U. J. Int. L. Pol. 785, 836, n. 3 (1996). 71. Report of the Commission on Human Rights to the Economic and Social Council, CHR, 4th Sess., UN Doc E/259 (1947). 72. ESC Res. 1235 (XLII), UN ESCOR, 42nd Sess., Supp. No.1 at 17, UN Doc E/ 4393 (1967). The 1235 procedure is based on Article 62 of the UN Charter, which empowers ECOSOC to “make or initiate studies and reports with respect to international, economic, social, cultural, educational, health and related matters” and to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms.”: UN Charter, Art. 62. 73. For example, in August 1992 Special Rapporteur Tadeusz Mazowiecki was appointed in relation to the deteriorating situation in the former Yugoslavia. 74. For a description of the mandate of the Special Rapporteur on Religious Intolerance, see Abdelfattah Amor, Public Conference: The Mandate of the UN Special Rapporteur, 12 Emory Int. L. Rev. 945 (1998). 75. This procedure is based on ECOSOC Res. 1503 (XLVIII) of May 27, 1970, UN ESCOR, 48th Sess., Supp. No. 1A, 1693d plen. mtg. at 8, UN Doc. E/4832/Add.1 (1970). See further Philip Alston, The Commission on Human Rights in Philip Alston (ed.), The United Nations and Human Rights: A Critical Appraisal 126, 145–55 (1992).

External Monitoring 183 76. In 1992, the Special Rapporteur on Summary or Arbitrary Executions reported that among the more than 100 states to which he had transmitted allegations, only two had claimed that they did not consider themselves bound by the standards contained in the ICCPR: see Report by the Special Rapporteur on Summary or Arbitrary Executions, CHR, 48th Sess., Agenda Item 12, para. 12, UN Doc. E/CN.4/1992/30 (1992). 77. Bruno Simma, A Hard Look at Soft Law, 82 Am. Soc. Int. L. Proc. 377, 380 (1988). 78. Thomas Buergenthal, New Customary Law: Taking Human Rights Seriously?, 87 Am. Soc. Int. L. Proc. 230, 231 (1993). 79. Jernow, above n. 70, 809. 80. Sub-C. Res. 1983/31 of September 6, 1983, para. 2, UN Docs. E/CN.4/1984/3, E/CN.4/Sub.2/1983/43, at 99 (1983). 81. Report Submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1999/39, E/CN.4/2000/65, February 15, 2000, para. 3. 82. Ibid. para. 173. 83. Ibid. para. 174. 84. Ibid. 85. Ibid. para. 181. 86. GA Res. 54/159 Elimination of all forms of religious intolerance, A/RES/54/159, February 22, 2000. 87. High Commissioner for the Promotion and Protection of All Human Rights, GA Res. 48/141, UN GAOR, 48th Sess., UN Doc. A/RES/48/141 (1993). 88. The result is that warnings—like the report of the visit made by the Special Rapporteur on Executions to Rwanda in 1993, before the massacres in Rwanda occurred—may get overlooked. 89. The Optional Protocol entered into force on March 23, 1976. Having considered a communication, the Committee forwards its “views” to the state party and to the individual: see generally Dominick McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights 50–1 (New York: Oxford, Clarendon Press, 1994). 90. For a comprehensive review of the Committee’s consideration of Article 27, see Alan Phillips and Allan Rosas (eds.), Universal Minority Rights (A˚bo: Institute for Human Rights and London: Minority Rights Group (International), 1997). For a general overview of the decisions of the Committee, see McGoldrick, above n. 89; Sarah Joseph, Jenny Shultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Melbourne: Oxford University Press, 2000). 91. See, e.g., Westerman v. Netherlands, Communication No. 682/1996, decided on November 3, 1999 (finding no violation of Article 18 by the Netherlands for refusing an application of conscientious objection to compulsory military service). Note, however, the dissenting views of Committee members P. Bhagwati, L. Henkin, C. Medina Quiroga, F. Pocar and M. Scheinin. 92. Case referred to as Communication No. R.6/24: see Report of the Human Rights Committee, GAOR, Thirty-sixth Session, Supplement No. 40 (A/36/40), 166–75.

184 p e te r g. da nchin 93. Communication No. 167/1984: see Report of the Human Rights Committee, Vol. II, GAOR, Forty-fifth Session, Supplement No. 40 (A/45/40) 1–30. 94. Communication No. 694/1996. See also Communication No. 816/1998 Grant Tadman et al v. Canada decided on October 29, 1999 (ruled inadmissible on grounds that the authors had insufficiently established how they were victims of discrimination). 95. Note that under Art. 20 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the Committee against Torture can act of its own volition if it receives well-founded information that torture is systematically being practiced in the territory of a State party. 96. For example, Scheinen notes that in the five Nordic and three Baltic countries (which have incorporated the convention into their domestic law and have a generally well-developed human rights culture) the ICCPR state reporting procedure has involved NGOs at all stages creating a “continuing platform for a domestic human rights discourse”: Martin Scheinen, Domestic Implementation of International Human Rights Treaties: Nordic and Baltic Experiences in Philip Alston and James Crawford (eds.), The Future of UN Human Rights Treaty Monitoring 243 (Cambridge: Cambridge University Press, 2000). 97. See Toby Mendel, The Strasbourg Safeguard, Transitions OnLine, June 1, 2000 at 2 available at http://archive.tol.cz/junoo/thestras.html. 98. Giorgio Gaja, New Instruments and Institutions for Enhancing the Protection of Human Rights in Europe? in Philip Alston (ed.), The EU and Human Rights 780 (New York: Oxford University Press, 1999). For a comparison between the ICCPR Optional Protocol and ECHR systems, see Manfred Nowak, The Inter-relationship between the Covenant on Civil and Political Rights and the European Convention on Human Rights in S. Vassilouni (ed.), Aspects of the Protection of Individual and Social Rights 131 (1995). 99. Gaja, above n. 98, 788–9. 100. The Commission’s decision on App. No. 18050/91 and the Committee’s views on Communication 453/1991, both in relation to this case, are reproduced in (1994)15 Hum. Rts. L. J. 448 and 422. 101. At present there are no adequate rules for dealing with overlapping jurisdiction between international human rights institutions. The fact that petitions by the same individual have been addressed by both the Human Rights Committee and the InterAmerican Commission on Human Rights was a key factor precipitating recent denunciations of the Commission and the Optional Protocol to the ICCPR by Jamaica, Trinidad and Tobago, and Guyana: see Benedict Kingsbury, Foreward: Is the Proliferation of International Courts and Tribunals a Systemic Problem? 31 N.Y.U. J. Int. L. & Pol. 679, 683 (1999). 102. The Council of Europe and Human Rights 2 (Strasbourg: Council of Europe, 1991). 103. See Eero J. Aarnio, Minority Rights in the Council of Europe: Current Developments in Phillips and Rosas, above n. 90, 124. 104. The Amsterdam Treaty of October 2, 1997 entered into force on May 1, 1999. The reference here is to the revised and consolidated version of the TEU.

External Monitoring 185 105. According to a new section in Article 49 TEU only a European state which “respects the principles set out in Article 6(1) may apply to become a member of the Union”: see Manfred Nowak, Human Rights ‘Conditionality’ in Relation to Entry to, and Full Participation in, the EU in Alston, above n. 98, 689–90. 106. Framework Convention for the Protection of National Minorities, Feb. 1, 1995, 34 I.L.M. 351 (1995). See Steiner and Alston, above n. 60, 796. 107. See Resolution (97) 10 of the Committee of Ministers of the Council of Europe, Rules Adopted by the Committee of Ministers on the Monitoring Arrangements Under Articles 24 to 26 of the Framework Convention for the Protection of National Minorities, September, 17, 1997. See also Gaetano Pentassuglia, Monitoring Minority Rights in Europe: The Implementation Machinery of the Framework Convention for the Protection of National Minorities—With Special Reference to the Role of the Advisory Committee, 6 Int. J. Minority & Group Rts. 417 (1999). 108. GA Res. 47/135 of December 18, 1992, cited in Stahnke and Martin, above n. 2, 162. The 1992 declaration extends beyond Article 27 and is less hesitant on the issue of the collective nature of minority rights: see H. A. Strydom, Minority Rights Protection: Implementing International Standards, 14 Sth. Afr. J. Hum. Rts. 373, 376 (1998); Aarnio, above n. 103, 130. 109. Oberleitner further suggests that the problem of overdue and incomplete reports will fundamentally detract from the efficacy of the system and that reform is required to create a more powerful, apolitical supervisory mechanism: see Gerd Oberleitner, Monitoring Minority Rights under the Council of Europe’s Framework Convention in Peter Cumper and Steven Weatley (eds.), Minority Rights in the ‘New’ Europe 83–4 (The Hague: Martinus Nijhoff, 1999). 110. Ratner, above n. 56, 616 (2000). 111. See Christopher Ward, Majoring in Minorities: Minority Rights in Europe, 24 M.U.L.R. 530, 533 (2000). 112. See, e.g., International Helsinki Federation for Human Rights, Human Rights in the OSCE Region: the Balkans, the Caucasus, Europe, Central Asia and North America—Report 2000 (IHF: Austria, 2000). 113. Michael Roan, The Role of Secular Non-Governmental Organizations in the Cultivation and Understanding of Religious Human Rights in van der Vyver and Witte, above n. 11, 144. 114. Ibid. 152–3. 115. Boyle and Sheen, above n. 13. Note also the New York-based Project on Religion and Human Rights: see John Kelsay and Sumner B. Twiss (eds.), Religion and Human Rights (New York: The Project on Religion and Human Rights, 1994). 116. See UN Bulletin of Human Rights, Implementation of International Human Rights Instruments, 89/1 (Geneva: Center for Human Rights, 1990) at 25 (noting that NGOs are the main vehicle by which to stir official bodies to action). 117. Framework Convention, above n. 106. 118. Arie Bloed and Peter van Dijk (eds.), Protection of Minority Rights Through Bilateral Treaties—The Case of Central and Eastern Europe 2 (The Hague: Kluwer Law International, 1999). 119. Note that most of these bilateral agreements contain a general clause stating

186 p e te r g. da nchin that nothing in the treaty shall be construed as limiting or derogating from any minority rights standards ensured under any treaty or agreement to which the states are parties: ibid. 15. Indeed, there is evidence from recent bilateral treaties that OSCE standards in particular are often treated as legally binding: see, e.g., the treaties between Germany and Hungary (Art. 19.1), Romania (Art. 15.1), and Czechoslovakia (Art. 20.1), of February 6, 1992, April 21, 1992, and February 27, 1992, respectively. 120. See generally Heather Hurlburt, Russian Bilateral Treaties and Minority Policy in Bloed and van Dijk, above n. 118, 55–99. 121. Ibid. 85–6. 122. Ibid. 87–8. 123. At the beginning of the transition period (1990–1994) Poland had concluded bilateral agreements on friendly co-operation with all its neighboring states including with: Germany (June 17, 1991); Czech and Slovak Republic October 6, 1991); Ukraine (May 18, 1992); Russia (May 22, 1992); Belarus (June 23, 1992); and Lithuania (April 26, 1994). Poland also concluded treaties with Hungary, Latvia, Estonia and Romania during the same period: see Jan Barcz, Poland and its Bilateral Treaties in Bloed and van Dijk, above n. 118, 101. 124. Statement by the Government of the Slovak Republic on the Treaty with the Republic of Hungary, Bratislava, March 18, 1995, cited in Patrick Thornberry, Hungarian Bilateral Treaties and Declarations in Bloed and van Dijk, above n. 118, 127, 144. See further Michael Geroe and Thomas Gump, Hungary and a New Paradigm for the Protection of Ethnic Minorities in Central and Eastern Europe, 32 Colum. J. Transnat’l. L. 673 (1995). 125. See above n. 56 and accompanying text. 126. See generally Elizabeth Defeis, Minority Protections and Bilateral Agreements: An Effective Mechanism, 22 Hastings Int. & Comp. L. Rev. 291 (1999). 127. Gudmundur Alfredsson, Identifying Possible Disadvantages of Bilateral Agreements and Advancing the ‘Most-Favoured-Minority-Clause’ in Bloed and van Dijk, above n. 118, 165. 128. See Vladmir Ortakovski, Minorities in the Balkans 12 (New York: Transnational Publishers, 2000). 129. For example, under the Jackson-Vanik Amendment the U.S. predicated normal trade relations with non-market economies on those states’ emigration policy: see 19 U.S.C. § 2432 (1994). Over time this has expanded to allow broad human rights investigations before “most favored nation” status is granted: Young, above n. 61, 511. U.S. legislation affording human rights influence in formation of foreign policy includes: Foreign Assistance Act of 1973 § 32, Pub. L. No 93–189, 87 Stat. 714, 733 (1973) (denial of economic or military assistance to foreign governments which intern political prisoners); Foreign Assistance Act of 1974 § 502B, Pub. L. No 93–559, 88 Stat. 1795 (1974) (denial of security assistance to foreign governments which engage in a consistent pattern of gross violations of internationally recognized human rights); and International Security Assistance and Arms Export Control Act of 1976 § 502B, Pub. L. No 94329, 22 U.S.C. 2304 (1976) (goal of U.S. foreign policy is increased observance of international human rights and tying military aid programs and security assistance to human rights).

External Monitoring 187 130. The Act was so uncontroversial that it passed the Senate 90–0. The legislative history indicates that the statute was aimed specifically at China (for its conduct in Tibet), Pakistan, and Sudan. 131. Lynch, above n. 12, 18. 132. Ibid. 19. 133. Section 407 of Title IV. 134. In particular, the Act draws on Article 18 of the UDHR and Article 18 of the ICCPR (which the U.S. ratified with reservations in April 1992). 135. Sean Murphy (ed.), Contemporary Practice of the United States Relating to International Law, 94 A.J.I.L. 102, 108–9 (2000). 136. 64 Fed. Reg. 59,821 (1999). The second annual report of the Commission was released on September 5, 2000 covering 194 countries and identifying again states of particular concern. 137. See Kristin Wuerffel, Discrimination Among Rights? A Nation’s Legislating a Hierarchy of Human Rights in the Context of International Human Rights Customary Law, 33 Val. U. L. Rev. 369, 371–2 (1998). 138. Religious human rights scholars in the U.S. such as Abdullahi An-Na’im seeking ways of reconciling religious values with international human rights standards in countries that practice egregious violations of human rights are particularly affected by this factor: see Adullahi An-Na’im, Islamic Foundations of Human Rights in Johan van der Vyver and John Witte (eds.), Religious Human Rights in Global Perspective—Religious Perspectives 337, 341 (The Hague: Kluwer Law International, 1996). 139. The U.S. has not ratified the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3, nor the International Covenant on the Rights of the Child, adopted by the UN GA on November 20, 1989; entered into force on September 2, 1990 in accordance with Art. 49(1). It also entered numerous reservations in ratifying the ICCPR: see Steiner and Alston, above n. 60, 1039–43. 140. 494 U.S. 872 (1990). 141. Concerns have also been raised whether the Act excessively entangles the U.S. government in matters of religion and thereby violates the Establishment Clause in the First Amendment to the federal constitution. The issue is whether the Act allows for the use of U.S. government funds and property for “religious purposes” and whether this raises any constitutional questions. 142. Freedom From Religious Persecution Act, 1997: Markup on H.R. 1685 Before the House Comm. On International Relations, 105th Cong. (1997) (statement of John Shattuck, Assistant Secretary of State, Bureau of Democracy, Human Rights and Labor, U.S. Dept. of State). 143. Many of the objections in U.S. domestic politics to treaties such as CEDAW and CRC have come from the Christian Right which views the UN as not only a threat to the American family but as a mechanism that allows a secular elite to threaten family values worldwide. UN programs and standards regarding abortion and reproductive freedom are, in particular, regarded as an anathema: see William Martin, The Religious Right and Foreign Policy, Foreign Policy 66, 74 (1999). 144. See Stefanie Grant, The United States and the International Human Rights

188 p ete r g. da nchin Treaty System: For Export Only? in Alston and Crawford, above n. 96, 317 (arguing that the U.S. has played a strong role in promoting international human rights abroad but its record in doing so at home has been slow and contradictory and has excluded any discussion of economic and social rights). 145. It is widely acknowledged that the domestic political pressure to enact the International Religious Freedom Act of 1998 came predominantly from conservative Christian and evangelical groups concerned about the persecution of Christians in countries such as China, Vietnam, and Sudan: Christy McCormick, Exporting the First Amendment: America’s Response to Religious Persecution Abroad, 4 J. Int’l. Legal Stud. 283, 285–6 (1998). On July 2, 1997, the first major report released by the Bureau of Democracy, Human Rights and Labor Affairs of the State Department was titled “U.S. Policies in Support of Religious Freedom: Focus on Christians.” 146. This was the position taken by the National Council of Churches in mid-1998 arguing that the U.S. should not act “as the religious police of the world,” that a “sanctions-based approach would hurt the very people it is intended to help,” and that the effort would be best made multilaterally: see National Council of Churches, NCC Statement on Proposed Federal Legislation Addressing Religious Persecution, available at http://www.nccusa.org. 147. Lawrence J. Goodrich, Congress Moves to Punish Religious Persecution Worldwide, Christian Sci. Monitor, Sept. 25, 1997, at 3. 148. See Sean Murphy (ed.), Contemporary Practice of the United States Relating to International Law: Sanctions Against States Tolerating Religious Persecution, 93 Am.J.Int.L. 480, 481 (1999) (arguing that sanctions will be counterproductive, may in fact strengthen the hand of those governments inciting religious intolerance, and may endanger the well-being of those the U.S. is seeking to help). 149. Abram Chayes and Antonia Handler Chayes, The New Sovereignty— Compliance With International Regulatory Agreements 66 (Cambridge: Harvard University Press, 1995). 150. Jack Donnelly, Realism and International Relations 9 (United Kingdom: Cambridge University Press, 2000). 151. Louis Henkin, How Nations Behave 47 (New York: Columbia University Press, 1979). 152. Chayes and Chayes, above n. 149, 3. 153. Louis Henkin, Compliance with International Law in an Inter-State System in Louis Henkin, International Law: Politics and Values 45 (Netherlands: Martinus Nijhoff, 1995). 154. Chayes and Chayes, above n. 149, 2. 155. Ibid. 17. In particular, the third factor helps to explain the divergence noted at the start of this chapter between almost universal ratification of the major human rights conventions and continuing cases of widespread violations. 156. Ibid. 22–8. 157. Ibid. 26. 158. Ratner, above n. 56, 693–8. 159. Young, above n. 61, 505–6. 160. Ibid.

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161. See, e.g., W. P. Alston, Religion, 7 Encyclopedia of Philosophy 140, 140– 1 (1967): “A survey of existing definitions of religion reveals many different interpretations,” most of which are one-sided and exclude polytheistic or non-theistic creeds. 162. See J. A. Walkate, The Right of Everyone to Change his Religion or Belief— Some Observations, 30 Netherlands Int. L. Rev. 146 (1983). 163. See Abdullahi An-Na’im, The Islamic Law of Apostasy and its Modern Applicability: The Case from the Sudan, 16 Religion (1986). 164. See United Nations Human Rights Committee, General Comment No. 22 (48) (Article 18) para. 5, Adopted by the UN Human Rights Committee on July 20, 1993, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in UN Doc. HRI/GEN/1/ Rev.1 at 35 (1994), also contained in Stahnke and Martin, above n. 2, 92–3. As Boyle has observed, a “serious question arises where the Islamic shariah is enforced, leading to the violation of other rights, for example by the use of the death penalty for apostasy and blasphemy.”: Boyle and Sheen, above n. 13, 9. 165. See An-Na’im, above n. 24. Note also the position of non-Muslims or Dhimmis in some Islamic states. Under shari’ah, these minority groups may have a degree of security of the person, freedom to practice their religion, and a degree of internal community autonomy, but they are often not allowed to participate in the public affairs of the Islamic state. 166. See K. J. Partsch, Freedom of Conscience and Expression, and Political Freedoms in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights 211 (New York: Columbia University Press, 1981). See also Natan Lerner, Proselytism, Change of Religion and International Human Rights, 12 Emory Int. L. Rev. 477, 507–8 (1998). 167. The international standards are not definitive on this issue: see, e.g., Tad Stahnke, Proselytism and the Freedom to Change Religion in International Human Rights Law, 1 B. Y. U. L. Rev. 251 (1999) (discussing the 1993 European Court of Human Rights decision in Kokkinakis v. Greece which sought to draw a distinction between “proper” and “improper” proselytism). 168. The 1981 Declaration is silent on this issue. The Human Rights Committee has stated in its General Comment on Article 18 that it considers that such a right can be inferred from that article “inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief ”: see General Comment 22 (48), above n. 164, para. 11. 169. See Religion, Religious Minorities and Human Rights: An Introduction at n. 42 and accompanying text. 170. General Comment No. 23 (50) on Art. 27 of the ICCPR indicates that the existence of a religious minority is a question of fact, to be determined by objective criteria, and does not depend on any political or legal determination by the state: General Comment No. 23 (50) (Article 27) para. 5.2, Adopted by the UN Human Rights Committee on 6 April 1994, UN Doc. CCPR/C/21/Rev.1/Add.5 (1994); reprinted in UN Doc. HRI/GEN/1/Rev.1 at 38 (1994); available in Stahnke and Martin, above n. 2, 98. See also Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev I (1979), reprinted as UN Pub. E.78.XIV.1 (1979).

190 p e te r g. da nchin 171. This view is supported by J. G. Starke, Introduction to International Law 372 (10th ed., 1989); see also Dinstein, above n. 14, 157. 172. This view is supported by Francesco Capotorti, Minorities, 8 Encyclopedia of Public International Law 385, 390 (1985). See also Francesco Capotorti, Are Minorities Entitled to Collective International Rights? in Yoram Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights, Israel Yearbook Hum. Rts. 505–11 (1992). 173. United Nations Seminar, above n. 9, 21. 174. Francesco Capotorti, Are Minorities Entitled to Collective International Rights? in Yoram Dinstein (ed.), The Protection of Minorities and Human Rights 508–9 (1992). 175. See Introduction at n. 34 and accompanying text. 176. General Comment on Article 27, above n. 170, ¶ 6.2. 177. Article 8(3) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, above n. 108, provides that “[m]easures taken by States to ensure the effective enjoyment of the rights set forth in the present Declaration shall not prima facie be considered contrary to the principle of equality contained in the Universal Declaration of Human Rights.” The Declaration does not, however, contain any positive obligation on states to take such special measures. 178. Article 4 of the Framework Convention for the Protection of National Minorities, above n. 106, obligates states to “undertake to adopt, where necessary, adequate measures in order to promote . . . full and effective equality between persons belonging to a national minority and those belonging to the majority”: Article 4(2). Such special measures are not discrimination: Article 4(3). 179. In the framework of the protection of minorities under the CSCE, participating states must “protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity”: CSCE Copenhagen Document, ¶ 33. This paragraph further provides that “[a]ny such measures will be in conformity with the principles of equality and non-discrimination with respect to the other citizens of the participating State concerned.” 180. See further Tad Stahnke, chapter 3 in this volume. 181. Boyle, above n. 13, 8. Boyle notes (at 17, n. 25) that controversy over the claim by Sudan of precedence for its internal law based on shariah over international standards was rejected by the Human Rights Commission in 1994. The resolution of the Commission called on Sudan to bring its national law into accordance with international standards to which it was a party. The vote was 35 for with 9 against (one of which was China) and 9 abstentions. 182. M. S. McDougal, H. D. Lasswell and L. Chen, The Right to Religious Freedom and World Public Order: The Emerging Norm of Nondiscrimination, 74 Mich. L. Rev. 865, 874 (1975–6). 183. Theo van Boven has stated that the Krishnaswami Study had “a substantial impact on the text and outlook” of the 1981 Declaration: see Kevin Boyle, The Arcot Krishnaswami Lecture: Afterword, 13 Hum. Rts. Q. 450 (1991). On the question of international standards of freedom of religion or belief, see Dinstein, above n. 14, 147ff

External Monitoring 191 (arguing that, in effect, there are four rights involved: (a) freedom of religious choice; (b) freedom of religious observance; (c) freedom of religious teaching; and (d) freedom of propagating the faith); Tazhib, above n. 23, ch. 3, 63–248; Boyle and Sheen, above n. 13. 184. Sullivan, above n. 18, 488. 185. Ibid. 520. See also R. S. Clark, The United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 31 Chitty’s L. J. 23, 29 (1983) (suggesting that as more affected groups, NGOs and official organs invoke these standards, they will eventually become part of the fabric of international law and practice). 186. Little, above n. 65, 91–3. 187. For example, the Human Rights Commission lacks the ability to enforce its judgments regarding human rights violations in different countries: Little, above n. 65, 89. 188. Stephen Marks, The United Nations and Human Rights: The Promise of Multilateral Diplomacy and Action in Burns Weston and Stephen Marks, The Future of International Human Rights 303 (New York: Transnational Publishers, 1999). 189. Elizabeth Evatt, Ensuring Effective Supervisory Procedures: The Need for Resources in Alston and Crawford, above n. 96, 461. 190. Crawford notes, for example, the increasing problems of: the corrosive effects of the backlog in state reporting; resource constraints; procedural issues; problems with the communication procedures and composition of committees; and limited political support from states: James Crawford, The UN Human Rights Treaty System: A System in Crisis? in Alston and Crawford, above n. 96, 4–11.

Chapter 5 t h e ev ol v i ng j u r i s p r u den c e o f t h e e u r o p e a n c o u r t of h u m a n r i gh t s a n d t h e p r o t e c t i o n of r e l i gi ou s m i n o r i t i e s Peter G. Danchin and Lisa Forman

The European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR or the Convention) was adopted in Rome on November 4, 1950 primarily by a group of Western European states. As a direct response to the atrocities of the Second World War, the Convention was the first international treaty to provide legally enforceable judicial remedies to individuals whose human rights had been violated. Over the last half century, the ECHR has established itself as the most effective regional system for the protection of human rights in the world. A large part of that success has been linked to the legal, political, and philosophical consensus amongst Western European countries regarding the need to respect and ensure fundamental civil and political freedoms. Since the collapse of communism in the late 1980s, however, the number of states parties to the Convention has increased dramatically. Countries in Central and Eastern Europe, including many from the former Soviet Union, have become members of the Council of Europe and hence the ECHR regime. Thus, for the first time, the laws and practices of states that historically have asserted very different conceptions of human rights have become subject to the scrutiny of the European Court of Human Rights (the Court) in Strasbourg. The question therefore now arises: How will these changes affect the ECHR system and how effective will the Court prove to be

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in protecting the rights of religious minorities, and religious freedom more generally, in the new member states across Central and Eastern Europe? Until 1993, the Court had never found a violation of religious freedom protected under Article 9 of the ECHR. Since then, the Court has found state violations in seven separate instances. In this chapter, we examine the recent decisions under Article 9 and suggest that while the Court has demonstrated an increased willingness to criticize state conduct inconsistent with the Convention, it has maintained a comparatively conservative approach in decisions affecting minority religions. In a number of cases since 1993, the Court has accepted as neutral, and therefore acceptable, laws which serve social goals asserted to be legitimate yet which impact negatively on members of minority religious groups. The Court has also demonstrated a tendency in its reasoning to substitute its own objective determination of the impact of alleged violations on religious practices in place of the actual convictions of affected minorities. If the rights of religious minorities are to be better protected under the Convention, we suggest that the Court’s jurisprudence needs to change in two ways. First, despite the recent influx of states with divergent historical and political traditions regarding religious questions, the Court should nevertheless seek progressively to narrow the margin of appreciation it currently allows to state parties to enforce varying national standards that privilege the majority religious view. In those cases where state action impacts negatively on the rights of religious minorities, the Court should therefore be more rigorous in assessing the justifications advanced by state parties. Second, the Court should be careful to avoid substituting its objective assessment of the impact of state action for the experience of affected minorities and should pay more attention to the harm caused to the values of autonomy and human dignity by limitations on religious freedom.

I. THE EU ROPEAN C ONVENTION HU MAN RIGHTS SYSTEM Bitter experience impressed upon Europeans that the state can fail in its role as the custodian of human rights and become an instrument of oppression, that it can be not only the protector, but also the gravedigger of human rights. In the interest of the defense of these rights, it was felt necessary to give independent international bodies a watching brief over state behavior.1 The ECHR, a creation of the Council of Europe, was signed in 1950 and entered into force in 1953. The Convention was modeled after the Universal

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Declaration of Human Rights (the UDHR,) and also created a comprehensive implementation system which included the provision of remedies for violations. The European Commission of Human Rights and the European Court of Human Rights were established in 1954 and 1959 respectively to interpret and apply the Convention for its member states. Ratification of the Convention is open only to members of the Council of Europe, and in recent times this has become a condition of membership of the Council itself. Article 3 of the Council’s statute provides that all member states are obliged to respect the “principles of the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedom.”2 There are now 41 members of the Council of Europe and therefore to the ECHR. This represents a massive increase in membership over the past decade, primarily from countries in Central and Eastern Europe, including many from the former Soviet Union.3 The impetus for the creation of the Convention came from a variety of political and historical forces. In the wake of the atrocities of the Second World War, it was clear that the protection of human rights should not be left solely within the discretion of state sovereignty, and that not only aliens but also citizens living in their own country required international protection.4 In recognition of Europe’s history, the Convention was designed to give binding effect to some of the rights and freedoms set out in the UDHR. The Convention additionally arose out of a desire to bring the non-communist countries of Europe together within a common ideological framework of “effective political democracy” with a “common understanding and observance of human rights”5 and to consolidate their unity in the face of a (then) communist threat 6 by promoting democracy and respect for human rights. The Convention provides recourse to both states and individuals to bring alleged violations before an international body, and provides an enforcement mechanism to ensure that contracting parties respect their obligations under the Convention. Under Article 25 individuals claiming to be the victim of a violation by a contracting party can petition the Court claiming redress.7 Until 1998, individual petitions went first to the European Commission of Human Rights, which would determine whether claims were violations of the Convention and therefore admissible for referral to the Court. This procedure was amended in 1997 in order to relieve the increased case load created by the addition of Eastern European signatory states. The Council of Europe abolished the Commission and created a single full-time European Court of Human Rights to which applicants can now petition directly.8 The Convention and Court thus operate as a supranational system of review of the human rights practices of member states. This is distinct from the judicial review that occurs at a national level in that the Court is limited in the relief that it can provide. It can only determine whether a law and/or its application are compatible with

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the Convention,9 although the European Court also has the special ability to make orders for pecuniary and nonpecuniary damages. The Court does not establish itself as a court of appeal—it may deal with a matter only after all domestic remedies have been exhausted and within six months from the date on which the final decision has been taken.10 This mechanism operates as part of the Convention’s general impetus to ensure that primary responsibility for the implementation of the Convention lies with the state parties themselves. This responsibility of states to determine the appropriate national operation of the Convention is often expressed in the doctrine of the “margin of appreciation,” the interpretive principle underlying the Court’s application of ECHR standards. The margin of appreciation encompasses the discretion afforded by the Court to member states to employ varying standards of conventional protections. The doctrine is designed to balance a state’s sovereignty with the need to ensure observance of the Convention and thereby to avoid damaging confrontations between the Court and Contracting Parties.11 This discretion within the application of the system in effect allows Contracting Parties to limit the operation of the Convention in accordance with national practices.12 The doctrine’s operation within the Court’s analysis of justifiable state action has provoked significant debate. Its supporters view it as a necessary and realistic mechanism enabling the Court to engage member states in delicate areas where cultural diversity compels differing application of ECHR standards. This view holds that the doctrine takes account of differing national legal systems—the purpose of an international system being not to attain a strict homogeneity among states but to ensure that European standards are interpreted and applied throughout the region in such a way as to set a common minimum level of protection.13 The complementary nature of the system is directly related to the rationale underlying the Convention that legitimate national actors are in a superior position to balance the competing interests at stake.14 In expressing this rationale, Willi Fuhrmann, a current Judge on the Court, states that: The Convention is predicated on the existence of a community of democratic states governed by the rule of law. Within this system the Court operates as a fail-safe to catch those violations of fundamental rights that escape the scrutiny of the national review bodies. In so doing, it owes a degree of deference to the decisions of democratically elected bodies, sometimes expressed as a margin of appreciation.15 Critics of the doctrine, however, view it as having a pervasive and pernicious effect on the substantive protection of fundamental rights brought about by an attitude of undue judicial deference to the concerns of state values over indi-

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vidual ones.16 Some scholars have argued that the deferential attitude assumed by the Court and reflected in the doctrine has resulted in the Court’s abdication of its responsibility to adjudicate complex and sensitive cases, leading it to accept without much reflection the respondent government’s claims.17 Others have argued that the doctrine represents a principled recognition of moral relativism that is seriously at odds with the concept of the universality of human rights.18 The operation of the margin of appreciation in the Court’s decisions on religious freedom is discussed further below.

II . THE PROTEC TION OF RELIGIOUS FREEDOM U NDER THE ECHR

a. echr provisions concerning religious freedom The key provision in the Convention dealing with religious freedom—one of the fundamental rights deemed essential to political democracy and individual freedom—is Article 9, which provides that: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. The exercise of religious freedom in the realm of education is specifically protected under Article 2 of Protocol No. 1 which provides: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. These Articles are complemented by the operation of Article 14, a general nondiscrimination provision which provides:

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The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Several other rights in the Convention provide additional protection to the holding and expression of religious beliefs in various public and private fora: for instance in the expression of one’s beliefs within “private and family life;”19 the public expression of religious beliefs within the general protection afforded to freedom of expression;20 and the freedom of peaceful assembly and association with others.21 We focus our analysis here primarily on Article 9.

1. the scope of protection in article 9 Article 9(1) provides that everyone has the right to freedom of thought, conscience, and religion. This includes the freedom to change religion or belief, and the freedom to manifest religion or belief in worship, teaching, practice, and observance. The protection in Article 9(1) extends beyond solely religious thought and conscience and protects the rights of conscience of atheists and agnostics.22 However the schema of protection afforded under Article 9(1) does not extend to every act motivated by religious belief. In Arrowsmith v. United Kingdom,23 the Court held that the applicant’s dissemination of leaflets to troops urging them not to serve in Northern Ireland was not protected under Article 9(1) as religious “practice” of her pacifism because not every part of the leaflet endorsed pacifist philosophy and it did not constitute a general call for all persons to give up violence.24 The Court has also consistently found that acts of conscientious objection do not fall within the scope of Article 9(1). Such acts include conscientious objection to military service,25 to alternative service,26 to paying taxes used for military purposes,27 and even to making tax payments to churches.28 The Court has held that for a belief to be protected under Article 9 it must attain a “certain level of cogency, seriousness, cohesion and importance.”29 Such beliefs include those pertaining both to conventional and less mainstream religious beliefs: Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, as well as beliefs held by members of the Jehovah’s Witnesses, the Church of Scientology, and the Unification Church fall under the protection of Article 9.30 If there are doubts as to a religion’s existence, it is for the applicant to demonstrate its existence. For instance, on the basis that the applicant had failed to prove its existence, the Court has disputed the existence of Wicca as a religion.31 Finally, the Court has differentiated between practices that occur in civilian and military life. In the 1998 case of Kalac v. Turkey,32 the Court held that the

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applicant’s dismissal from the military for “displaying unlawful fundamentalist opinions” due to his belonging to a particular Muslim sect was not a violation of his freedom to manifest his religion. This was because the military is a particular context that may involve limitations on fundamental rights which would not be acceptable for civilians. In this case, the applicant’s dismissal did not amount to interference with his right to free exercise of religion as he was able to pray five times a day and perform all other religious duties. The Court characterized his dismissal as based on his conduct and attitude rather than on his religious opinions and beliefs.

2. permissible limitations under article 9(2) Article 9(2) states that manifestations of religion or belief may be limited if the restrictions are prescribed by law and are necessary in a democratic society. Permissible grounds of limitation include those of public safety, public order, health, or morals, and the protection of the rights and freedoms of others. These limitations relate only to manifestations of thought, conscience, and religion. The right to entertain any thoughts or views is guaranteed absolutely and without limitation. The Court has expressed this distinction in terms of the wellacknowledged difference between the forum internum (the sphere of personal beliefs and religious creeds) and the forum externum (the sphere where such personal beliefs and religious creeds are physically manifested).33 The scope of religious liberty is therefore determined in part by the line the Court has drawn between these two spheres. In drawing that line, another difficulty has arisen. It is often hard to distinguish between manifestations of belief on the one hand, and expressions of conscience on the other. Accordingly, the Court may be required to decide whether a particular action should be protected under Article 9 or Article 10 (or both). Evans has argued that what should strictly be construed as a manifestation under Article 9 are those particular forms of expression relevant only to religion or belief or those akin to religious convictions.34 Patterns of thought or conscience unrelated to religious conviction would then fall under the protection of freedom of expression in Article 10. Article 9(2) also provides the framework within which the margin of appreciation doctrine usually arises. It is legitimate in terms of Article 9(2) for states to limit manifestations of religion or belief in the interests of public safety and order, health or morals, and to protect the rights and freedoms of others. The determination of what constitutes a legitimate limitation on this basis appears ex facie the wording of Article 9(2) itself, namely conduct prescribed by law and necessary in a democratic society. The court’s determination of whether conduct violates Article 9 therefore follows a two-stage inquiry. The court’s first task is to determine whether challenged governmental action interferes with a right

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protected under Article 9(1). If there is no state interference with protected rights, then the application is dismissed. If the Court finds interference, then it proceeds to the second level of determining whether the interference is permissible according to the limitations in Article 9(2). This is determined according to a three part test by which the Court assesses whether the action was (1) prescribed by law, (2) had a legitimate aim, and (3) was necessary in a democratic society. According to the Court’s jurisprudence, conduct is prescribed by law if the relevant rule or prohibition is adequately accessible and foreseeable, and formulated with sufficient precision to enable the individual to regulate his or her conduct.35 To be considered necessary in a democratic society, impugned conduct must correspond to a “pressing social need” and must be proportionate to the legitimate aim pursued.36 Finally, the limitations in Article 9(2) are similar (but not identical) to those contained in the second parts of Articles 8, 10, and 11. All these provisions delineate acceptable limitations of the respective rights. The Court’s determination of limitations under Article 9(2) in this way constitutes part of a larger jurisprudential tradition whereby the Court is called on to decide whether state interference with rights protected under the Convention falls within the margin of appreciation that member states have to determine the legitimate limits on fundamental freedoms necessary in a democratic society. Thus, in the area of religious freedom, the Court has a pivotal role in protecting the rights of religious minorities from the exercise of majority policies or actions that may violate the sphere of religious freedom under Article 9. The extent to which the Court has been prepared to do so is the issue to which we now turn.

I II . TH E PROTEC TION OF RELIGIOUS FREEDOM BY TH E EU ROPEAN C OU RT OF HUMAN RIGHTS In spite of the significant protections within the Convention relating directly and indirectly to religious freedom, from 1945 until 1993 not a single decision of the Court found a violation of an applicant’s religious freedom. This is a remarkable fact, given that, since its inception, the Commission has registered more than 20,000 applications.37 In almost fifty years, the European Commission published only forty-five cases in which Article 9 challenges were directly raised.38 In only four of these forty-five cases did the Commission declare the applications to be admissible, and three of these cases were ultimately held not to warrant a finding of a violation of Article 9.39 In the remaining case of Darby v. Sweden,40 the Court found that there had been a violation but based its decision on grounds other than Article 9. The Court’s reluctance to find violations of religious freedom is demonstrated in several other cases prior to 1993. The pattern that emerges indicates that the Court attempted wherever possible to decide cases on grounds other

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than under Article 9. In cases where Article 9 claims were made together with claims under the freedom of expression protection in Article 10, the Court and the Commission invariably decided the case on the latter basis. In the Darby case, a Finnish citizen working in Sweden was forced to pay taxes to support the Lutheran Church of Sweden even though Swedes could claim exemption from the tax. The applicant claimed violations under Article 9, Article 1 (right to peaceful enjoyment of property) and discrimination under Article 14. The Court found a violation of Articles 1 and 14, but held that it was unnecessary to examine the Article 9 claim. This pattern is demonstrated even more starkly in the case of Hoffman v. Austria,41 where Ingrid Hoffman—a Jehovah’s Witness—alleged violations of Article 8 (right to respect for private and family life) and Article 9 in conjunction with Article 14 after the Austrian Supreme Court awarded custody of her two children to their Catholic father. The decision was based primarily on Hoffman’s religious faith, which the Austrian court felt would unduly prejudice the children due to her religious opposition to blood transfusions and the potential social and psychological effects on the children of belonging to a religious minority such as the Witnesses. While the Court accepted that there had been differential treatment based on religion, its ultimate decision avoided a finding under Article 9 by holding the state’s interference to be a violation of the applicant’s rights under Article 8. It was not until the historic 1993 case of Kokkinakis v. Greece42 that the Court held for the first time that a state’s conduct violated Article 9. This forty-eight year lacuna indicates a significant disjuncture between principle and practice in ECHR jurisprudence on questions involving freedom of religion or belief. It indicates the Court’s unwillingness to risk confrontations with member states on sensitive issues pertaining to deeply entrenched church-state arrangements and in relation to the treatment of minority faiths. However, since the Kokkinakis decision in 1993 the Court has exhibited a greater willingness to scrutinize state conduct under Article 9 and to narrow the operation of the margin of appreciation, at least in relation to more clearly established violations.

a. kokkinakis v. greece After becoming a Jehovah’s Witness in 1936, Mr. Minos Kokkinakis, a retired Greek businessman, was arrested more than sixty times for proselytism. In response to his activities in religious matters, Kokkinakis served a total of 31 months in prison for convictions relating to acts of proselytism, conscientious objection, and holding a religious meeting in a private house.43 The case that came before the European Court concerned Kokkinakis’ conviction for proselytism following a conversation he had with the wife of the local cantor for which he was sentenced to four months imprisonment (convertible to a pecu-

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niary penalty) as well as a fine. The Crete Court of Appeal upheld this sentence, reducing his sentence to three months, and converting it into a pecuniary penalty. The Crete Court reasoned that: It was proved that, with the aim of disseminating the articles of faith of the Jehovah’s Witnesses sect . . . to which the defendant adheres, he attempted, directly and indirectly, to intrude on the religious beliefs of a person of a different religious persuasion from his own, [namely] the Orthodox Christian faith, with the intention of changing those beliefs, by taking advantage of her inexperience, her low intellect and her naivety.44 Kokkinakis appealed to the Court of Cassation alleging the unconstitutionality of the law.45 The Court rejected Kokkinakis’s appeal holding that the law prohibiting proselytism not only did not contravene the Greek Constitution, but also was: [F]ully compatible with [the Constitution’s recognition] of the inviolability of freedom of conscience in religious matters and provides for freedom to practice any known religion, subject to a formal provision . . . prohibiting proselytism in that proselytism is forbidden in general whatever the religion against which it is directed, including therefore the dominant religion in Greece . . . the Christian Eastern Orthodox Church.46 Kokkinakis then applied to the European Commission on Human Rights, alleging violations of Articles 7, 9, and 10 of the Convention.47 He argued that the Court of Cassation had consistently denied challenges to the constitutionality of the law against proselytism in spite of wide support for its unconstitutionality within legal literature.48 According to information provided to the European Court by Kokkinakis, between 1975 and 1992, 4,400 Jehovah’s Witnesses were arrested, 1,233 were committed for trial, and 208 convicted.49 By a majority of 6–3, the Court held that that there had been a violation of Article 9; they voted 8–1 that there had not been a violation of Article 7; and they held unanimously that the state should pay Kokkinakis the equivalent of approximately $1,700 for nonpecuniary damages and $12,000 for costs and expenses.50 The Court recognized that bearing witness is a legitimate manifestation of religious conviction and acknowledged that freedom to change one’s religion or belief would be a “dead letter” if this did not in principle include the right to try to convince one’s neighbor through teaching.51 The Court argued, however, that freedom to manifest one’s religion or belief implicitly recognizes that in a democratic society in which several religions coexist within the same population it may be necessary to place restrictions on this freedom in order to

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reconcile the interests of the various groups and to ensure that everyone’s beliefs are respected. In applying the two-stage enquiry set out above, the Court first held that the sentence imposed on Kokkinakis amounted to an interference with his freedom to manifest his religion or belief under Article 9. Having found state interference, the Court proceeded to the second level of determining under the threepart test whether the interference was permissible according to the limitations in Article 9(2). First, the Court accepted that the interference was prescribed by law and stated that the law’s vagueness was offset by a body of settled domestic case law that enabled the applicant to regulate his conduct accordingly. Second, the Court accepted that Greece had a legitimate aim in criminalizing proselytism in order to protect the rights and freedoms of others. Third, in determining whether the law was necessary in a democratic society, the Court considered whether the impugned measures were justified and proportionate to the task of protecting the rights and freedoms of others. The Court drew a distinction between bearing Christian witness and “improper proselytism,” holding that the former corresponded to “true evangelism . . . [while] the latter represents a corruption or deformation of it.”52 The Court held that the criteria adopted by the Greek legislature in creating the law against proselytism were reconcilable insofar as they were designed to punish only improper proselytism. Rather than decide whether the proselytism in the present case should be defined as improper, however, the Court stated that the Greek court’s reasoning as to Kokkinakis’s liability under the law was not sufficiently precise in that it did not specify why Kokkinakis’s proselytism was improper. In the circumstances, the Court held that the conviction had not been shown to be justified by a pressing social need, nor to be proportionate to the legitimate aim pursued.

b. critique of kokkinakis In spite of the groundbreaking nature of the Court’s finding of a violation of Article 9, the Kokkinakis decision has been widely criticized for not going far enough. The Court’s 6–3 split decision, and the sharply divergent dissenting and concurring opinions, spoke of the divisions amongst the judges regarding the perceived dangers of intruding into questions of religion in member states. These divisions find expression in the narrow basis for the decision and the fact that the final holding avoided dealing with all but the factual particularities of the case. A number of the judges criticized the majority’s reasoning on these grounds. For example, Judge Pettiti criticized the majority both for not finding the Greek law itself contrary to Article 9 for lack of legal certainty,53 and for the factual basis of its holding, which left too much room for a repressive interpretation by the Greek courts in future. Pettiti argued that it was possible to define

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“impropriety,” “coercion,” and “duress” more clearly and to describe the full scope of religious freedom and bearing witness under the ECHR. Judge Martens further suggested that the Court’s judgment touched only incidentally on what was the crucial question in the case: whether Article 9 allows member states to criminalize attempts to induce somebody to change his or her religion. Martens argued that human dignity and freedom are basic to the idea of human rights, and that the freedom of thought, conscience, and religion enshrined in Article 9(1) are essential to that dignity and freedom. Martens argued that this freedom is absolute and that the Convention leaves no room whatsoever for interference by the state.54 It is not the concern of the state whether someone wishes to change their religion, nor whether someone attempts to induce another to change their religion. To allow the state to interfere by making proselytism a criminal offence “would not only run counter to the strict neutrality which the state is required to maintain in this field but also create the danger of discrimination when there is a dominant religion.”55 These views may be contrasted with the dissenting opinion of Judge Valticos who argued that freedom to manifest one’s religion did not include the right to attempt “persistently to combat and alter the religion of others, [and] to influence minds by active and often unreasonable propaganda.” For Valticos, the Jehovah’s Witnesses are a “sect . . . involved [in] . . . systematic attempt[s] at conversion and consequently an attack on the religious beliefs of others,” and the applicant a “militant Jehovah’s Witness, a hardbitten adept of proselytism, a specialist in conversion.” Thus, in Valticos’ opinion, proselytism constitutes the “rape of the beliefs of others.”56 From both the majority and minority judgments in the case, we can make two general observations. First, the reasoning of the judges demonstrates a conscious attempt to avoid the normative and theoretical questions raised by the complex issue of state regulation of proselytism, and a willingness to find a violation only on the basis of the specific facts of the case. Recent scholarship has analyzed the difficulty of deciding whether state restrictions on proselytism are consistent with international human rights law. For example, Stahnke has argued that in conflicts involving proselytism, the rights and interests of the source, the target, and the state can be arrayed against one another.57 The rights of the “source” include the freedom to manifest religion and belief and the right to freedom of expression. The rights of the “target” include the freedom to change religion; the freedom to receive information; the freedom to have or maintain a religion; and the freedom from injury to religious feelings. The interests of the state include the protection of a dominant religious tradition or political ideology; the preservation of public order; and the protection of consumers from the influence of ignorance, misrepresentation, and fraud in the religious “marketplace.”58

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On the basis of these conflicting rights and interests, Stahnke has proposed a framework to assist decisionmakers in disentangling the factors that have been used to draw the line between proper and improper proselytism. His framework involves four interrelated variables: (1) the attributes of the source; (2) the attributes of the target; (3) where the action alleged to be improper proselytism takes place; and (4) the nature of the action. Each of these variables may be laid out on a scale that will “provide a starting point for a more focused discussion on the range of choices available to states consistent with international human rights standards.”59 It was the Court’s failure to define the term “improper proselytism” or to analyze in any depth these conflicting rights and interests that Judge Pettiti was most critical of in Kokkinakis. In developing the notion of “coercion” that underlies this area of human rights law, these factors need to be considered in order to establish a sound analytical approach consistent with evolving ECHR jurisprudence. The failure to do so will perpetuate the current low level of protection for the rights of minority religious groups in many European member states. As Stahnke concludes: Proselytism is a controversial activity, in that it is likely to result in controversy between sources and targets, and between religious or political communities that may become identified with either. In many cases, the rights of religious minorities are opposed by the interests of the dominant religious or political group. Conflicts arise between religions and between denominations within religions. The state may wish to take sides or feel compelled to join in these controversies. The dynamics of state involvement depends upon the relationship that exists between the state itself and particular religious groups. Such a mix of forces creates a situation in which the rights of religious dissenters, minorities, or nonbelievers are particularly at risk.60 The second observation is that the Kokkinakis decision, and the case law of the Court under Article 9 more generally, reveals a bias toward protecting traditional and established religions and a corresponding failure to protect the rights of minority, nontraditional, or unpopular religious groups. In 1996, Jeremy Gunn suggested that a summary review of the Court’s jurisprudence revealed a consistent pattern of rejecting Article 9 claims, and this included a persistent denial of applications from religions that could be classified as new, nontraditional, or minority, as well as a distinct pattern of an institutional bias toward traditional religions.61 In this way those religions established within a state, either because they are an official religion or have a large number of adherents, are far more likely to have their core doctrines recognized as manifestations. Evans has argued that religions whose devotions take different forms—for example, sexual intercourse or refusal to pay taxes to a centralized

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system hostile to their beliefs—are more likely to have their devotions excluded from the protection of Article 9 as non-manifestations.62 This issue is illustrated by the facts of the Kokkinakis case itself where proselytism—a practice central to the beliefs of Jehovah’s Witnesses—is criminalized under Greek law. Although the Court found a violation of Article 9, the majority judgment does not address the central question of the legitimacy of the Greek state’s criminalization of a fundamental manifestation of a minority’s religious beliefs. The Court has, however, subsequently moved closer to addressing this question. In Larissis v. Greece,63 the applicants were officers in the same unit of the Greek air force and were followers of the Pentecostal faith, which adheres to the principle that it is the duty of all believers to engage in evangelism. They were charged with proselytism of a variety of army and civilian individuals, and convicted by the Permanent Air Force Court in 1992 for offences of proselytism under the same law that was at issue in Kokkinakis. The applicants brought the case before the Court alleging violations of, inter alia, Articles 7, 9, 10 and Article 14 read together with Article 9. The Court held 7–2 that the proselytism conviction of the Pentecostal servicemen was a violation of Article 9 only in relation to the proselytism of civilians. To the extent, however, that the officers had engaged in improper proselytism of their military subordinates, their conviction was justified due to the power differential within the military environment that altered the legitimacy and propriety of their actions.64 In defining “improper proselytism” as the “offering of material or social advantage or the application of improper pressure with a view to gaining new members of a Church,” the Court stated that: [T]he hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power.65 The Court therefore determined that circumstances may arise in which the state would be justified in taking special measures to protect the rights and freedoms of subordinate members of the armed forces. In the case of normal civilian life, however, the Court found it of “decisive significance that the civilians whom the applicants attempted to convert were not subject to pressures and constraints of the same kind as the airmen.”66 While the Court again avoided addressing the question of whether the law against proselytism was itself in violation of the Convention, the implication of the Court’s reasoning is that

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criminalizing proselytism outside of exceptionally “coercive” circumstances is an illegitimate interference with the freedom to manifest religious beliefs and practices. Despite the hesitancy evident in the reasoning in these cases, it is apparent that the Court’s history of non-engagement with religious freedom ended with the Kokkinakis decision in 1993. The remainder of this chapter is devoted to analyzing these post-1993 decisions and to assessing their impact on the protection of minority religions within the context of the margin of appreciation doctrine.

I V. THE MARGIN OF APPRECIATION AND THE PROTEC TION OF MINORITY RELIGIONS Benvenisti has argued that where the rights of minorities are concerned, no margin of appreciation is appropriate since acquiescing to the views of national institutions merely assists majorities in burdening politically powerless minorities. He states that: One of the main justifications for an international system for the protection of human rights lies in the opportunity it provides for promoting the interests of minorities . . . . Whereas “national” interests (defined as such by majority controlled institutions) often prevail in national courts, they may be deemed less compelling when reviewed by detached external decision-makers. To grant margin of appreciation to majority-dominated national institutions in such situations is to stultify the goals of the international system and abandon the duty to protect the democratically challenged minorities.67 It is generally agreed that the Court has applied a narrower margin of appreciation in cases involving rights deemed fundamental to political democracy on the premise that, given Europe’s historical legacy, it should exercise stricter oversight over these fundamental rights.68 This has not been the case, however, in the Court’s treatment of religious freedom. As we have seen, the first halfcentury of the Court’s existence did not see a single decision finding a violation of Article 9 by a member state. European countries have enjoyed an autonomy in relation to religious matters which, in the absence of any judicial decisions to the contrary, has amounted to almost complete discretion. This history of avoidance has given way in the past decade to a greater willingness on the part of the Court to address allegations of human rights violations under Article 9 and related provisions. Since 1993, the Court has found violations of Article 9 in six cases—four of which have occurred in the

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past few years.69 The margin of appreciation within which states can legitimately interfere with religious freedom has thus self-evidently narrowed. In a famous passage in Kokkinakis, the majority judgment affirmed that: [F]reedom 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 conceptions of life . . . . The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends upon it.70 The question that we address in this section is the extent to which this recognition of the importance of religious freedom may extend to protect the rights of minority or unpopular religious groups. We argue that the Court’s latest decisions, while clearly more open to issues of religious freedom than during the pre-1993 era, nevertheless exhibit two inconsistent and under-protective trends.

a. state justifications for measures limiting the rights of minority religions First, the Court has too readily accepted state justifications for measures that impact negatively on religious minorities, often systematically so. The criminalization of proselytism in Greece is one example of this. As discussed above, the majority’s decision in Kokkinakis was based strictly on the vagaries of the facts presented and the Court readily legitimated the law itself as providing the certainty and foreseeability required to guide potential infringers. In the later 1996 case of Manoussakis v. Greece,71 the Court again accepted the legitimacy of the Greek government’s regulation of religious practice in requiring explicit civil authorization in order to open a public place of worship. While it noted that there was significant evidence that Greece has tended to use its laws to impose rigid or prohibitive conditions on the practice of religious beliefs by certain non-Orthodox movements, in particular Jehovah’s Witnesses, its finding of a violation was again limited to the facts of the case.72 Factual findings by the Court, while providing relief to the immediate applicant, cannot realistically alter state conduct that causes systemic violations of the rights of religious minorities. This is especially the case where the main perpetrator of systemic discrimination against a religious minority is the government itself. If the Court is to be more effective in its stated objective of promoting and protecting religious pluralism, it must take stronger steps to protect the right of religious minorities to practice their beliefs freely and with-

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out interference. There have been some recent positive movements in this direction, notably in one case in 2000 involving the newly admitted Eastern European state of Bulgaria. In Hasan & Chaush v. Bulgaria,73 the applicants contended that the Bulgarian state authorities had interfered twice with the organizational life of the Muslim community: first, in February 1995, in replacing the legitimate leadership of the community led by the first applicant; and second, during the ensuing years, by refusing recognition of the reelected leadership of the first applicant. The court was therefore faced with the question of whether the organization and leadership of the Muslim community in Bulgaria implicated the freedom to manifest religion under Article 9. In holding that participation in the organized life of the religious community is a protected manifestation, the Court stated that Article 9 must be interpreted in the light of Article 11, which safeguards associative life against unjustified state interference. The believer’s right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary state intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection that Article 9 affords. This concerns not only the organization of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. If the organizational life of the community were not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable. Accordingly, the Court unanimously held that Bulgaria’s interference with the leadership of the Bulgarian Muslim community was illegitimate in both law and in practice, and that the government’s action was not prescribed by law in that it was arbitrary and based on legal provisions which granted an unfettered discretion to the executive.74 Central to the Court’s reasoning in Hasan & Chaush was the idea that the state must remain neutral in the domain of religion. Except in exceptional circumstances, Article 9 excludes any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs are legitimate. State action favoring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. The state’s action in registering the new leadership of the Bulgarian Muslim community and refusing to recognize the leadership of an elected representative had the effect of favoring one faction of the Muslim community by granting it the status of the single official leadership to the complete exclusion of the previously recognized leadership. Thus, the acts of the authorities operated, in law and in practice, to deprive the excluded leadership of any possibility of continuing to represent at least part of the Mus-

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lim community and of managing its affairs according to the will of that part of the community. A related decision earlier in 1997 indicates that the Court may gradually be becoming stricter in its scrutiny of state justifications for actions that impact adversely on the freedom of minority religions. In Serif v. Greece,75 the Court held that the state’s interference with the Muslim community’s leadership amounted to an interference with the applicant’s right under Article 9(1) “in community with others and in public to manifest his religion in worship and teaching.” The case arose in 1985 after one of the two Muslim religious leaders of Thrace died and the state appointed a Mufti ad interim whose successor was later confirmed by the President of the Republic in the post of Mufti of Rodopi. In December 1990, after the authorities failed to respond to requests to organize elections for the post of Mufti, two independent Muslim members of parliament organized elections at the mosques. As a result of those elections, the applicant was appointed Mufti of Rodopi, and he challenged the lawfulness of the state-elected Mufti. In the interim, the President of the Republic passed a law by which the manner of selection of the Muftis was changed. The public prosecutor then initiated criminal proceedings against the applicant for having usurped the functions of a minister of a “known religion” and for having publicly worn the uniform of a minister without having the right to do so. The court of first instance imposed a commutable sentence of eight months imprisonment, which the applicant appealed. The court of appeal (the Criminal Court of Thessaloniki) upheld the conviction and imposed a sentence of six months imprisonment to be commuted to a fine. The applicant then appealed to the Court of Cassation, which rejected his appeal, and the case finally was brought to the European Court. The Court confirmed the principle in Kokkinakis that while religious freedom is primarily a matter of individual conscience, it also includes, inter alia, freedom in community with others and in public to manifest one’s religion in worship and teaching. In applying the two-stage test under Article 9, the Court stated that it was unnecessary to consider whether the interference in issue was prescribed by law because it was in any event incompatible with Article 9 on other grounds. On the question of whether the interference served a legitimate aim, the Court accepted the government’s argument that the limitation was justified in order to protect public order. In considering whether the interference was necessary in a democratic society, however, the Court reiterated the principle in Kokkinakis that freedom of thought, conscience, and religion is one of the foundations of a democratic society and of the indissociable pluralism upon which a democratic society depends. The Court acknowledged that it may be necessary to impose restrictions on religious freedom to reconcile the interests of various religious groups, but any such restrictions must correspond

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to a “pressing social need” and must be “proportionate to the legitimate aim pursued.” In the opinion of the Court, punishing a person for the mere fact that he acted as the religious leader of a group that willingly elected him could not be considered compatible with the demands of religious pluralism in a democratic society. While there was an official state-appointed Mufti, the Court recalled that there was no indication that the applicant attempted at any time to exercise the judicial or administrative functions for which the legislation on the Muftis and other Ministers of “known religions” makes provision. As in Hasan & Chaush, the Court stated that it did not consider that in democratic societies the state is required to take measures to ensure that religious communities remain or are brought under a unified leadership. The Greek government had argued that its intervention was warranted in order to prevent tension among the Muslims in Rodopi, and between the Muslims and Christians of the area as well as between Greece and Turkey. The Court noted that these concerns were not supported on the facts and that nothing could be adduced to warrant qualifying the risk of tension between Muslims and Christians and between Greece and Turkey as anything more than a remote possibility. Thus, the Court unanimously held that there had been a violation of Article 9 and ordered the payment of 2,700,000 drachmas in damages.

b. objective versus subjective assessment of the impact of “ neutral ” laws of general application The second discernible trend in Article 9 cases post-Kokkinakis is that the Court has tended to substitute the actual experience of affected minorities with its own objective assessment of the impact of state action. In a series of recent decisions, the Court has rejected an applicant’s claim on the basis that the impugned conduct did not constitute an interference with religious freedom, in spite of the applicant’s clear subjective experience to the contrary. For example, in the twin cases of Efstratiou v. Greece and Valsamis v. Greece,76 the Court held that requiring students to take part in school parades commemorating the outbreak of war between Greece and Italy in 1940 was not an interference with their or their parent’s pacifist convictions as Jehovah’s Witnesses. The Court also held that suspending pupils for refusing to march in such parades did not violate their freedom of religion in that the disciplinary rules applied generally and in a neutral manner. Important to the Court’s reasoning was the finding that such measures had a limited duration and therefore a limited impact.

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The result of these decisions was that, in accordance with what the Court deemed to be “objective criteria,” the legitimate societal objective of achieving national unity was held to outweigh the deeply held religious convictions of the Witness children and their parents against participation in the parade. The majority judgment justified its finding of the limited impact of requiring the applicant’s attendance by reiterating that the parade served the “dominant public interest.” This was because the commemoration of national events served both pacifist and public interests, and because the presence of military representatives at the parade did not alter its nature as an expression of national values and unity.77 Furthermore, the majority suggested that the applicant’s religious interests were being adequately addressed by other means such as exemption from religious-education lessons and the Orthodox mass. This reasoning, however, directly contradicts the subjective experience of the applicants concerned. This fact was recognized in the dissenting opinion in Efstratiou, which argued that the applicant’s perception of the symbolism of the parade, and her religious and philosophical convictions, had to be accepted by the Court unless they were clearly unfounded or unreasonable. The applicant’s experience of being forced to participate in the parade was very clearly contrary to her “neutralist, pacifist and thus religious beliefs.”78 In the circumstances, there was no basis for regarding her participation as necessary in a democratic society, even if the public event was for most people an expression of national values and unity. In our view, the Court’s reliance on an objective element in Article 9 cases concerning religious minorities (particularly small or unpopular religious minority groups) is incorrect as a matter of principle. It requires the Court to breach its duty of neutrality and to determine violations on the basis of which beliefs it regards as “reasonable” and which it does not. The Spanish scholars Martı´nezTorro´n and Navarro-Valls have argued strongly against such an approach: Naturally it is necessary to verify—as far as possible—that nobody is deceitfully alleging untrue moral convictions to get rid of a legal duty. But a very different thing is to sustain that a secular court is competent to elucidate when the beliefs of a person are consistent enough from an “objective” point of view. . . . The reason why the freedom of each individual conscience must be respected is not that it is objectively correct—the courts would then have to judge the truth of the alleged beliefs as a sort of new Inquisition. Freedom of conscience must be respected because in modern democratic societies it is considered an essential area of the individual’s autonomy, and consequently the legal system has determined not to interfere in the individual’s conscience as far as other prevailing juridical interests are not in danger.79

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Neutral laws of general application will usually conform to the dominant ethical values in a given society at a given point of time. Thus, they will not often conflict with majority religious values or morality. They will, however, cause conflicts with minority religious values and practices that are socially atypical. The fact that the Court has fashioned an approach whereby “neutral” laws will automatically prevail, and whereby the state is under no obligation to justify that its refusal to grant exemptions from the application of such laws is a measure that is “necessary in a democratic society,” constitutes a significant risk for the rights of minorities.80 It is interesting to compare the approach of the Court on this point to comparable jurisprudence under the First Amendment to the United States Constitution. In the celebrated decision of West Virginia State Board of Education v. Barnette,81 the U.S. Supreme Court held that a resolution of the Board of Education making the flag salute a regular part of the school program and requiring all teachers and pupils to participate was unconstitutional. As in Efstratiou, the case involved Jehovah’s Witnesses who were conscientiously opposed to saluting the flag. Justice Jackson, in his opinion for the Court, noted that the flag salute in connection with the pledge of allegiance required “affirmation of a belief and an attitude of mind.” While avoiding the question of whether nonconformist beliefs would exempt individuals from the duty to salute, and deciding the case instead on the basis of unjustified interference with freedom of expression, Jackson stated that: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”82 It is important to note that the measure at issue in Efstratiou was not a criminal law of general application, which may raise other concerns, but an ordinary school regulation issued by the Ministry of Education and Religious Affairs.83 Thus, the recent controversial decision of the U.S. Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith,84 where the State of Oregon was permitted to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, is not on point here. Furthermore, it is clear that in instances where a restriction on the free exercise of religion includes a restriction on freedom of expression (or is a case of “compelled expression”), the First Amendment has been held to bar the application of even neutral, generally applicable laws to religiously motivated action.85 The European Court in Efstratiou failed to consider these arguments and thus failed to protect the free exercise rights of the applicants in the case. The reasoning in Efstratiou is also inconsistent with the later case of Buscarini v. San Marino,86 in which the Court held that a compulsory oath on the Gospels for recently elected members of parliament was in violation of Article 9.

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In that case, the applicants were elected to the parliament of the Republic of San Marino in elections held on May 30, 1993. They requested permission to take the required oath without making reference to any religious text. Having taken the oath in writing and omitting any reference to the Gospels, the General Grand Council of the State held their oaths to be invalid and a resolution was adopted ordering the applicants to retake the oath on the Gospels on pain of forfeiting their parliamentary seats. The applicants complied with the Council’s order and took the oath on the Gospels, albeit objecting that their right to freedom of religion and conscience had been infringed.87 The applicants then brought the case to the European Court on the grounds that in the Republic of San Marino at the material time the exercise of a fundamental political right such as holding parliamentary office was subject to publicly professing a particular faith in violation of Article 9. The Court commenced its reasoning by emphasizing the importance of religious freedom in a democratic society not only for believers but also for atheists, agnostics, skeptics, and the unconcerned. Article 9 protects the freedom to hold or not to hold religious beliefs and to practice or not to practice a religion. Requiring the applicants to take an oath on the Gospels did constitute a limitation within the meaning of Article 9(2) since it required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats. The Court stated that it would be contradictory to make the exercise of a mandate intended to represent different views of society within Parliament subject to a prior declaration of commitment to a particular set of beliefs and unanimously held that the limitation could not be regarded as “necessary in a democratic society” and was in violation of Article 9. Is it possible to reconcile, as a matter of principle, the different results in Efstratiou and Buscarini? Why should the freedom of conscience of atheists or agnostics in refusing to take a religious oath be protected while the religious and philosophical convictions of a minority religious group not be protected in the case of compulsory attendance at a national parade? One answer may be that Buscarini involved questions of fundamental civil and political rights in addition to the issue of individual freedom of conscience whereas in Efstratiou and Valsamis this element was lacking. Alternatively, we may conclude that Efstratiou and Valsamis were wrongly decided and pose a risk to the rights of minority religions, especially—as in the case of the Jehovah’s Witnesses—small and unpopular religious groups.88 This danger was illustrated recently in the 2000 case of Jewish Liturgical Association Cha’are Shalom ve Tsedek v. France.89 In this case Cha’are Shalom ve Tsedek, the applicant association, alleged a violation of Article 9 on account of the French authorities’ refusal to grant it the approval necessary for access to slaughterhouses to perform ritual slaughter in accordance with the ultra-orthodox religious prescriptions of its members. It further alleged a viola-

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tion of the nondiscrimination norm in Article 14 in that only the Jewish Consistorial Association of Paris (the ACIP), of which the large majority of Jews in France are members, had received the approval in question. In applying the two-stage test, the Court first found that the French authorities’ action fell under Article 9 since ritual slaughter must be within the right to manifest one’s religion in observance.90 The Court held, however, that the state’s refusal of a license to the applicant association did not constitute an interference with their freedom to manifest their religion. The Court stated that there would only be an interference with the freedom to manifest religion if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable. Since it had not been established that Jews belonging to the applicant association could not obtain glatt meat elsewhere, or that the applicant could not supply them with such meat by reaching an agreement with the ACIP, the refusal of approval did not constitute a violation of Article 9. The Court further held under the second stage of the test that even if this restriction could be considered an interference with the freedom to manifest religion, it was compatible with Article 9(2). The impugned measure was prescribed by law, and pursued the legitimate aim of protecting public health and public order. This was because state regulation of the exercise of worship was found to be conducive to religious harmony and tolerance. In light of France’s margin of appreciation, particularly in relation to the delicate relationship between the state and religions, the restriction could not be considered excessive or disproportionate. The Court accordingly voted 12–5 that there had been no violation of Article 9(2). In relation to the claim of discrimination under Article 14, the Court held that the difference of treatment that resulted from the measure was limited in scope. Insofar as there was any difference of treatment, it pursued a legitimate aim and there was “a reasonable relationship of proportionality between the means employed and the aim sought to be realized.” Such difference of treatment therefore had an objective and reasonable justification that accorded with ECHR nondiscrimination standards. Thus, the Court ruled 10–7 that there had been no violation of Article 9 taken together with Article 14. The divergence of views between the majority and dissenting opinions in the case reflected significant disagreement among the judges. The dissenting opinion started from the position that tension in a divided religious community is one of the unavoidable consequences of the need to respect pluralism. In such a situation the role of the public authorities is not to remove any cause of tension by eliminating pluralism, but to take all necessary measures to ensure that the competing groups tolerate each other. The dissenting judges therefore found it particularly inappropriate to hold that the applicant association could

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have reached an agreement with the ACIP in order to perform ritual slaughter under cover of their approval. That argument amounted to discharging the state, the only entity empowered to grant approval, from the obligation to respect religious freedom. Given that the ACIP represented the majority current in the Jewish community, it was the least well-placed organization to assess the validity of minority claims and to act as an arbiter. The dissenting judges also stated that the fact that glatt meat could be obtained by other means was irrelevant in assessing whether the scope of the state’s act in question was aimed at restricting the free exercise of religion. Finally, the dissenting judges disagreed with the majority’s finding that there was no unfair discrimination because the interference was of “limited effect” and the difference of treatment was “limited in scope.” They stated that: Where freedom of religion is concerned, it is not for the European Court of Human Rights to substitute its assessment of the scope or seriousness of an interference for that of the persons or groups concerned, because the essential object of Article 9 of the Convention is to protect individuals’ most private convictions.91 The government had justified its refusal of a license on the low level of support for the applicant association, which had only about 40,000 adherents, all ultra-orthodox Jews, out of 700,000 Jews living in France. Its representativeness, in their submission, could not be compared with that of the ACIP, which represented nearly all the Jews in France. The refusal to approve the applicant had therefore been regarded as necessary for the protection of public order so as to avoid the proliferation of approved bodies that did not provide the same safeguards as the ACIP. The dissenting judges could not see, however, how granting the approval in question would have threatened to undermine public order. Muslim communities living in France which also practice ritual slaughter but are less well structured than the Jewish communities had been granted approval liberally by the authorities without it ever being alleged that the number of approved bodies would threaten public order or health. The minority concluded by reiterating that while they accepted that states enjoy a margin of appreciation in this area, in Manoussakis the Court had emphasized that in delimiting the extent of the margin of appreciation concerned it had to have regard for the need to secure true religious pluralism, which is an inherent feature of the notion of a democratic society. The withholding of approval from the applicant association, while granting such approval to the ACIP and thereby conferring on the latter the exclusive right to authorize ritual slaughterers, amounted to a failure to secure religious pluralism or to ensure a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Thus, in their view the difference

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in treatment between the applicant and the ACIP had no objective and reasonable justification and was therefore disproportionate and a violation of Article 14 taken together with Article 9.

V. C ONC LUSION The Court’s decision in Kokkinakis and the cases that have followed it constitute the early stages of ECHR jurisprudence in the area of religious freedom. We have attempted to identify both the progress that has been made to date and the areas where changes are required if the rights of religious minorities are to be better protected. For this to occur, there will need to be some reconsideration of the current operation of the doctrine of the margin of appreciation both in scrutinizing state justifications for restrictive measures and in assessing their impact on affected minority groups. There are already indications that this is the direction in which the Court’s reasoning is moving. In Manoussakis, the Court employed a more searching judicial inquiry of the alleged violation than had been used in Kokkinakis, and stressed the necessity of placing state restrictions on religious freedom under “strict scrutiny.”92 The choice of this term is most likely an intentional reference to the doctrine of strict scrutiny that characterizes U.S. constitutional law regarding the rights of “discrete and insular minorities when ordinary political processes cannot be relied upon to achieve this end.”93 This doctrine requires judges to review legislative means and ends by asking whether an enactment is justified by a compelling state interest, whether the means necessarily achieve their ends and whether any less constitutionally restrictive alternatives are available. As the Court’s jurisprudence evolves, this kind of strict scrutiny approach to Article 9 cases is, in our view, the best means by which to guard against the harm caused by violations of the rights of minority religious groups to the values of autonomy and human dignity that underlie the ECHR.

endnotes 1. Peter Leuprecht, Innovations in the European System of Human Rights Protection 8 Transnat’l L. & Contemp. Probs. 313, 314 (1998) 2. Statute of the Council of Europe, signed May 5, 1949. 3. Toby Mendel, The Strasbourg Safeguard, Transitions On Line, June 1, 2000 at 2. Until the recent 1998 amendments to the European Human Rights system, the Council of Europe also provided a further mechanism for the enforcement of the European Court’s judgments, in the form of the Committee of Ministers, a political body that oversaw the implementation of decisions. 4. Rudolf Bernhardt, Human Rights and Judicial Review: The European Court of Human Rights in David M. Beatty (ed.), Human Rights and Judicial Review:

European Court of Human Rights 217 A Comparative Perspective 298 (The Netherlands: Martinus Nijhoff Publishers, 1994). 5. See the Preamble to the Convention, which states that “[t]he Governments signatory hereto, being Members of the Council of Europe . . . Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and best maintained on the one hand by an effective political democracy and on the other by the common understanding and observance of the Human Rights upon which they depend.” 6. Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics and Morals 572 (New York: Oxford University Press, 1996). 7. Article 24 permits contracting parties to refer alleged breaches of the provisions of the Convention by another contracting party. Like the similar inter-state reporting provisions under the ICCPR and ICESCR, very few states have ever availed themselves of this mechanism. 8. See European Court of Human Rights, Historical Background, Organization and Procedure, at http://www.dhcour.coe.fr. 9. Bernhardt, above n. 4, 297. 10. Article 26 of the Convention. 11. R. St. J. MacDonald, The Margin of Appreciation in R. St. J. Macdonald et al (eds.), The European System for the Protection of Human Rights 83, 123 (1993). 12. Leo Zwaak, The Implementation of Decisions of the Supervisory Organs under the European Convention on Human Rights in Tom Barkhuysen, Michiel van Emmerik and Piet Hein van Kempen (eds.), The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order 75, 75–88 (1999). 13. Willi Fuhrmann, Perspectives on Religious Freedom from the Vantage Point of the European Court of Human Rights, B.Y.U.L. Rev. 829 (2000). Fuhrmann is a sitting judge on the bench of the Court. 14. Laurence R. Helfer, Book Review: Concretizing Human Rights Law, 29 Colum. Hum. Rts. L. Rev. 533 (1998). 15. Zwaak, above n. 12, 75. 16. Fionnuala Ni Aolain and Oren Gross, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, unpublished manuscript on file with the authors. 17. Ibid. 3. 18. Eyal Benvenisti, Margin of Appreciation, Consensus, and Universal Standards 31 N.Y.U. J. Int’l L. & Pol. 843 (1999). 19. Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. “2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic

218 d a nchin/ forma n well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.” 20. Article 10 provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers [. . .]. “2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 21. Article 11 provides: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. “2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” 22. In Buscarini v. San Marino, the Court held that the right to religious freedom includes the right not to hold religious beliefs and the right not to practice religion. See also Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (Ser. A) 17, ¶ 31 (1993). 23. Arrowsmith v. United Kingdom, 19 Eur. Comm. H.R. Dec. & Rep. ¶ 71 (1980). 24. See Peter Edge, Current Problems in Article 9 of the European Convention of Human Rights [1996] The Juridicial Review 42-50. 25. N v. Sweden, 40 Eur. Comm. H.R. Dec. & Rep. 203, 207 (1984) (finding that a pacifist’s complaint fell within the scope of Article 9 but failed to find a violation of 9(1)); X v. Austria, 43 Eur. Comm. H.R. 161 (1973). 26. Grandrath v. Federal Republic of Germany, 8 Eur. Comm. H.R. 324, 336 (1965); Johansen v. Norway, 44 Eur. Comm. H.R 155, 162, (1985); X v. Federal Republic of Germany, 9 Eur. Comm. H.R. 196 (1977). 27. C v. United Kingdom, 37 Eur. Comm. H.R. 142 (1983). 28. E & G.R. v. Austria, 37 Eur. Comm. H.R. 42 (1984); Gottesman v. Switzerland, 40 Eur. Comm. H.R. 289 (1984). See further Malcolm D. Evans, Religious Liberty and International Law in Europe 313 (United Kingdom: Cambridge University Press, 1997). 29. Campbell & Cosans v. United Kingdom, Ser. A, no. 48 (1982), ¶ 36. 30. Evans, above n. 28, 290.

European Court of Human Rights 219 31. X v. United Kingdom, No. 7291/75, 11 D.R. 55 (Dec. 1977). 32. 27 E.H.R.R. 552 (1999). 33. See Danchin, chapter 4, at n. 25 and accompanying text. See further P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention of Human Rights 298 (Netherlands: Kluwer Law and Taxation Publishers, 1984). 34. Evans, above n. 28, 285–6. 35. Hasan & Chaush v. Bulgaria, Application No. 30985/96, Judgment Strasbourg, October 26, 2000. 36. Wingrove v. United Kingdom, 24 E.H.R.R. 1 (1997) ¶ 53. 37. T. Jeremy Gunn, Adjudicating Rights of Conscience Under the European Convention on Human Rights in Johan D. van der Vyver and John Witte, Jr. (eds.), Religious Human Rights in Global Perspective—Legal Perspectives 309– 10 (The Hague: Martinus Nijhoff Publishers, 1996). 38. It is not known how many of these cases raised claims under Article 9. 39. See Gunn, above n. 36, 310. 40. Darby v. Sweden, Eur. Ct. H.R. Ser. A (1990). 41. Hoffman v. Austria, 17 E.H.R.R. 293 (1994). 42. Kokkinakis v. Greece, Eur. Court H.R. Ser. A, Vol. 260-A (1993) (“Kokkinakis”). 43. Ibid. ¶ 6. In addition to these convictions, between 1960 and 1970 Kokkinakis was arrested four times and prosecuted but not convicted. 44. Ibid. ¶ 10. This judgment accorded with s. 2 of Law No. 1672/1939 which defined “proselytism” as meaning: “Any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion . . . with the aim of undermining those beliefs, either by any kind of inducement or promise of moral support or material assistance, or by fraudulent means or by taking advantage of his experience, trust, need, low intellect or naivety.” 45. Article 13 of the Greek Constitution of 1975 states that: “1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs. “2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited. [Emphasis added].” 46. Kokkinakis, ¶ 12. 47. Article 7 provides that: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 48. Kokkinakis, ¶ 21. 49. Kokkinakis, ¶ 24. 50. See Keturah A. Dunne, Addressing Religious Intolerance in Europe: The Limited Application of Article 9 of the European Convention of Human Rights and Fundamental Freedoms, 30 Cal. W. Int’l L. J. 117, 134 (1999).

220 d a nchin/ forma n 51. Kokkinakis, ¶ 31. 52. Kokkinakis, ¶ 48. 53. Ibid. 54. Kokkinakis, ¶ 13–14 k, m. 55. Kokkinakis, ¶ 15. 56. Kokkinakis, Dissenting Opinion of Valticos J, ¶ 9–10. 57. Tad Stahnke, Proselytism and the Freedom to Change Religion in International Human Rights Law, 1 B.Y.U. L. Rev. 251, 275 (1999). 58. Ibid. 275–325. 59. Ibid. 326. 60. Ibid. 338–9. 61. Gunn, above n. 36, 311. See, in particular, the list of cases in support of this proposition in n. 28. Gunn notes further that the Commission has declared inadmissible every application brought by a conscientious objector. 62. Evans, above n. 28. 63. Larissis v. Greece, 140 Eur. Ct. H.R. (ser. A), No. 140/1996/759/958–60, February 24, 1998. 64. Larissis, ¶ 55. 65. Larissis, ¶ 51. 66. Larissis, ¶ 59. 67. Benvenisti, above n. 18, 850. 68. Ni Aolain and Gross, above n. 16, 18. 69. Twenty-two cases alleging violations of religious freedom have come before the Court since 1993. In five of these cases, the Court has found a violation of Article 9, while in one case the Court has found a violation of both Articles 9 and 14. Of the remaining cases, the Court has found no violation of Article 9 in five cases; has made its determination on some other basis under the Convention in eight cases; has found no violation of Article 10 in relation to religion in two cases; and has recorded a friendly settlement regarding an alleged Article 9 violation in one case. 70. Kokkinakis, above n. 42, ¶ 31. 71. 23 E.H.R.R. 387 (1997). 72. Manoussakis, ¶ 48. The Court identified three relevant factors: (1) the excessive discretion that Greek authorities had to estimate the need to open a place of worship; (2) the lack of a specified term to decide on the permit, which could indefinitely delay the application; and (3) the fact that the Greek Orthodox Church intervened in the decision-making process. See also Canea Catholic Church v. Greece, December 16, 1997, where the Court held that governments cannot unreasonably discriminate between religious confessions regarding the requirements they must comply with to be acknowledged as juridicial persons, in particular where legal personality is crucial to assert their rights before civil courts. 73. Application No. 30985/96, Judgment Strasbourg, October 26, 2000. 74. Having decided the case on this part of the Article 9 test, the Court found it unnecessary to examine whether there was a legitimate aim or whether the government’s action was necessary in a democratic society. 75. 31 E.H.R.R. 20 (2001).

European Court of Human Rights 221 76. Efstratiou v. Greece, No. 24095/94, Rep. December 18, 1996; Valsamis v. Greece, No. 21787/93, Rep. December 18, 1996. Both cases reported at 24 E.H.R.R. 294 (1997). 77. Efstratiou, ¶ 32. 78. Efstratiou 24 E.H.R.R. 294 (1997) (joint dissenting opinion of Thor Vilhjalmesos and Jambrek JJ.) 79. Javier Martı´nez-Torron and Rafael Navarro-Valls, The Protection of Religious Freedom in the System of the European Convention on Human Rights, Paper presented to the Oslo Conference on Freedom of Religion and Belief, August 11–15, 1998, on file with the authors, at 13. 80. Ibid. at 14. 81. 319 U.S. 624 (1943). 82. 319 U.S. 624, 642 (1943). 83. Circular No. C1/1/1 of January 2, 1990 which exempted schoolchildren who were Jehovah’s Witnesses from attending religious-education classes, school prayers and Mass, but not national events. 84. 494 U.S. 872, 110 S. Ct. 1595 (1990). 85. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school); Wooley v. Maynard, 430 U.S. 705 (1977) (invalidating compelled display of a license plate slogan that offended individual religious beliefs). 86. 30 E.H.R.R. 208 (2000). 87. Subsequently the Grand Council passed a law providing newly elected members with a choice between the traditional oath and one in which the reference to the Gospels was replaced by the words “on my honour.” 88. See also Thlimmenos v. Greece, 31 E.H.R.R. 15 (2001) (where the Court held unanimously that Greece’s refusal to appoint the applicant, a Jehovah’s Witness, as a chartered accountant due to a prior criminal conviction for refusal on account of his religious beliefs to wear a military uniform, violated Articles 9 and 14). 89. Jewish Liturgical Association Cha’are Shalom Ve Tsedek v. France, Application No. 27417/95, Judgment, Strasbourg, June 27, 2000. 90. Jewish Liturgical Association Cha’are Shalom Ve Tsedek, ¶ 74. 91. Ibid. ¶ 2 (joint dissenting opinion of Bratza, Fischbach, Thomassen, TsatsaNikolovksa, Pantiru, Levits, and Traja JJ.) 92. Manoussakis, ¶ 44. 93. United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938).

Chapter 6 t h e or ga ni z a t i on f o r s e c u r i t y a n d c o - o p e r a t i on i n e u r op e a n d t h e r i g h t s o f r e l i gi on or b e l i e f T. Jeremy Gunn

The Organization for Security and Co-operation in Europe (OSCE) has developed an approach to the protection of human rights—including rights related to religion and belief—that differs significantly from other intergovernmental organizations. The OSCE, which began as a series of meetings in Helsinki under the name of the Conference on Security and Co-operation in Europe (CSCE), now includes fifty-five participating states from throughout Europe, as well as the Confederation of Independent States, Canada, and the United States. The participating states range in size from Russia and the United States on the one hand to the Holy See, Malta, and San Marino on the other. This paper describes generally the background and structure of the OSCE to the extent that they affect rights of religion and belief and discusses OSCE commitments and activities related to freedom of religion and belief.1

I . BAC KGROU ND OF THE ORGANIZATION FOR SEC U RITY AND C O-OPERATION IN EUROPE

a. from “ conference ” to “ organization ” The original Helsinki meetings began in 1972 as a series of multilateral consultations on security and political matters that were of common interest to the

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Soviet Bloc, Western Europe, Canada, and the United States.2 It convened in response to a proposal by the Soviet Union and Warsaw Pact states to create a multilateral forum to discuss unresolved political-boundary issues and security concerns among Soviet Bloc countries, NATO members, and the nonaligned states of Europe.3 Through the efforts of several Western European states, the United States, and Canada, the scope of the negotiations was expanded to include not only political and security issues, but economic issues and human rights as well. The first phase of this “Helsinki process,” as it has since come to be known, concluded with the signing of the Helsinki Final Act on August 1, 1975 by thirty-five heads of state.4 Between the first summit at Helsinki in August 1975, through the second summit in Paris in November 1990, the Helsinki process existed only as an intermittent series of meetings without benefit of any permanent institutional structure. In addition to holding several meetings on a number of specialized topics (only one of which involved human rights per se), the participating states met in three major “Follow-up Meetings” in Belgrade (1977–78), Madrid (1980– 83), and Vienna (1986–89) to discuss the entire range of Helsinki issues, from European security to human rights.5 In these three follow-up meetings, one of the distinctive characteristics of the Helsinki process began to emerge. Unlike most international institutions, the Helsinki follow-up meetings presented opportunities for the participating states to criticize each other, in sometimes pointed language, regarding their failures to comply with their human rights commitments. The United States accused the Soviet Union, for example, of suppressing freedom of speech, restricting rights of religious believers, and preventing the exodus of Jews. It is probably fair to say that during the last fifteen years of the cold war, the most pointed discussion of human rights commitments among states occurred under the auspices of the Helsinki process. It is indeed believed by many that the Helsinki process, including the continuing pressure put on communist governments to provide political freedom for dissenters, undermined Soviet bloc political regimes and encouraged dissidents to organize and speak out.6 Although the tenor of the meetings was shaped by the exchanges of contentious accusations, the latter two meetings nevertheless produced concluding documents that further strengthened human rights commitments.7 After the fall of the Berlin Wall in 1989 and the dissolution of the Soviet Union in 1991, the human dimension of the Helsinki process transformed itself from an arena where antagonistic blocs met and challenged each other into a community that self-consciously described itself as sharing a commitment to democracy, the rule of law, and human rights. (Of course, not all of its participating states have implemented these ostensibly shared values equally.) Between 1989 and 1991, the Helsinki process held three “Human Dimension Con-

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ferences” in Paris (1989), Copenhagen (1990), and Moscow (1991). The latter two conferences produced significant new human rights commitments.8 Beginning in 1990, and developing simultaneously with its greater sense of shared values, the Helsinki process began to develop a complicated and decentralized institutional structure to promote its goals. Unlike the Council of Europe, whose headquarters is in Strasbourg, or the European Union, which is based principally in Brussels, the OSCE operates a decentralized institutional structure that includes permanent offices and staffs in Vienna, Warsaw, Copenhagen, Prague, and other cities of its participating states. Subject to the ultimate political authority of summit meetings of OSCE heads of state and the Ministerial Council of foreign ministers, the OSCE bureaucratic operations are now managed on an ongoing basis by three overlapping entities. The first is the Permanent Council, a policymaking body that includes representatives of each of the 55 participating states who meet on a weekly basis in Vienna. It was the Permanent Council, for example, that decided to convene a “Supplementary Meeting on Freedom of Religion,” which met in Vienna early in March 1999. The second entity is the “Chairman-in-Office,” an OSCE executive position that is held for one year on a rotating basis among participating states. Finally, there is the Secretary General, who provides ongoing institutional support for the Chairman-in-Office and manages operations through the OSCE Secretariat. In addition to these entities that are responsible for managing all OSCE issues, there are other important offices with specific areas of responsibility that involve, directly or indirectly, freedom of religion and belief. The most important is the Office of Democratic Institutions and Human Rights in Warsaw (ODIHR), which develops and implements thematic programs related to human rights and engages in a number of activities to promote democracy, such as monitoring elections in the developing democracies in Europe, the Caucuses, and Central Asia. The ODIHR has convened a number of thematic seminars on a broad range of topics, including its 1996 Human Dimension Seminar in Warsaw on Constitutional, Legal and Administrative Aspects of the Freedom of Religion (see Part III below).9 A second important office is the High Commissioner for National Minorities (HCNM), which currently is based in The Hague, Netherlands. Its operations technically are described as securityenhancing and early-warning mechanisms that are designed to prevent the outbreak of violence. The HCNM does not receive complaints from individuals alleging that their rights as minorities have been violated. The HCNM generally has not developed policies that target religious minorities, as opposed to targeting larger ethnic problems that might have a religious component to them. However, in a positive direction in this regard, the HCNM convened a seminar in Almaty, Kazakhstan, “Religion, Security and Stability in Central Asia.” There

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also is a Conflict Prevention Center in Vienna, as well as offices in other cities including Prague (which includes a documentation center and provides support for the Senior Council), Copenhagen (which provides support for the Parliamentary Assembly), missions in several states, and a Representative on Freedom of the Media in Vienna. Along with the enhanced bureaucratic structure that has emerged since the end of the cold war, OSCE meetings themselves have now become much more formalized and routine. The most important type, summits of heads of participating states, did not convene at any time between 1975 and 1990, but are now scheduled to be held every other year. The Ministerial Council—the central decisionmaking and governing body of the OSCE—consists of the foreign ministers of the participating states and meets once each year. The Permanent Council in Vienna, as mentioned above, meets weekly throughout the year. Finally, during the years in which summits convene, they are preceded by review conferences in Vienna that evaluate the entire range of OSCE commitments. On the years in which there is no summit, a human dimension implementation meeting is held in Warsaw to review participating state compliance with OSCE commitments. The OSCE Parliamentary Assembly, consisting of members of the parliaments and congresses of the participating states, also meets to promote contacts among the legislative branches of governments and make nonbinding policy recommendations.

b. distinctive characteristics of the osce human rights regime As mentioned above, the Helsinki process has issued a number of documents that create human rights commitments and has established a number of unusual procedures to promote the implementation of these commitments. There are four characteristics of the OSCE human rights regime that particularly distinguish it from institutions like the United Nations and other regional organizations that promote human rights: first, the “political” rather than the “legal” nature of the human rights commitments; second, the role played by “implementation” and “review” meetings; third, the emphasis placed on “linkage” between human rights and other issues; and, finally, the participation of nongovernmental organizations (NGOs) in the meetings.

1. the “political” rather than “legal” character of human rights commitments Unlike the UN and the regional systems such as the Council of Europe, the OSCE has not adopted human rights treaties that must be ratified by states

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and that are intended to become binding international law. Rather, the participating states of the OSCE have adopted, by consensus, documents that articulate the “political” commitments that they make to each other, including commitments to protect human rights.10 Because they are adopted by consensus, these political commitments do not permit states to attach reservations or exceptions. The OSCE declarations therefore are not law and cannot be enforced by any court, although they are political commitments to which other OSCE participating states may legitimately raise questions about other states’ compliance.11 The OSCE, again unlike the UN and regional systems, has no human rights courts or commissions and its participating states have no obligation to issue reports on the status of their compliance with OSCE commitments. Although the human rights provisions of the OSCE declarations do not provide mechanisms for responding to individual complaints, they nevertheless are, in many ways, more detailed than other human rights instruments, particularly with respect to rights related to the freedom of religion and belief. Rather than awaiting interpretive guidance from courts or commissions, the Helsinki process—when it works according to its design—develops increasingly specific commitments through its follow-up meetings and during its negotiations on new documents. The OSCE has explicitly rejected what might be called the “traditional” doctrine that human rights is an issue solely of domestic concern and that states do not have the right to criticize the internal affairs of other states.12 The Preamble to the Moscow Document of 1991 asserts that the participating states “categorically declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong to the internal affairs of the State concerned.”13 Speaking as the Director of the Office of Democratic Institutions and Human Rights, Ambassador Audrey Glover stated bluntly: “The argument of non-interference in internal affairs with regard to the human dimension is not valid; it never has been.”14 In the words of Arie Bloed, one of the preeminent commentators on the OSCE, this is “sometimes referred to as the ‘universality principle.’ It has also been expressly agreed that all such matters are of ‘international concern’ and are therefore no longer regarded as being exclusively internal affairs.”15 Despite the official adoption of the position that human rights issues are an international concern and not solely a domestic issue, many OSCE participating states continue to object to criticism from the outside on the grounds that such criticisms constitute an improper interference with their internal affairs. Professor Louis Henkin correctly responds to the “noninterference in domestic affairs” argument by stating “[t]hat which is governed by international law or agreement is ipso facto and by definition not a matter of domestic jurisdiction. ”16

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2. the role of “implementation” and “review” meetings” The final section of the Helsinki Final Act provided that there should be a number of “follow-up meetings” to examine whether the participating states had implemented the commitments made in 1975, and scheduled the first such meeting to be held in Belgrade in 1977. The follow-up meetings, which William Korey later described as “one of the greatest achievements of the Helsinki Final Act,” began inauspiciously.17 The meetings in Belgrade (1977–78) and Madrid (1980–83), as well as the first part of Vienna (1986–89), were marred by divisive ideological accusations with little attempt to foster a genuine discussion. The Madrid meeting added modestly to protection of religious freedom and adopted a mechanism that provided for states to engage in voluntary bilateral meetings to discuss implementation of the commitments.18 Nevertheless, in the words of Thomas Buergenthal, the years before 1989 were principally characterized by “posturing, hypocrisy, and outright dishonesty.”19 Since 1990, when the implementation and review meetings began to avoid drafting new standards and became principally focused on reviewing participating state compliance with preexisting OSCE commitments, they have taken on a somewhat different character. As they now operate, the implementation meetings typically take place over a two week period and are divided into a number of thematic sessions. The October 2000 implementation meeting in Warsaw, for example, was divided into thirteen different sessions and included such topics as democratic institutions, the rule of law, freedom of expression, tolerance, national minorities, and freedom of thought, conscience, religion, and belief. NGOs are now active participants at the review and implementation meetings. (See discussion below.)

3. the emphasis on linkage In the beginning of the Helsinki process, Western states sought to link agreement on issues related to security to issues related to human rights. By connecting human rights and security concerns, the Western states created incentives for communist governments to adhere internally to human rights norms. One of the means by which this linkage was established was to acknowledge that each state had a legitimate interest in each other state’s compliance with all of the terms of the Helsinki Final Act. By linking human rights to peace and friendly relations, the participating states transformed human rights from a marginal item on the panEuropean political agenda into a subject of central importance to it. Henceforth it was politically legitimate to link the protection of human rights with arms control and the liberalization of trade relations.20

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The linkage of human rights to security concerns may indeed have been the principal reason for the success of the Helsinki process in the cold war years. Unfortunately, there have been few, if any, attempts to link human rights compliance with security interests since 1989. Indeed, the post-1991 human dimension implementation meetings and review conferences essentially have been segregated from the military, political, and security interests of the OSCE.

4. the role of ngos During the past twenty years, NGOs have played an increasingly active role in most intergovernmental human rights bodies. During the 1993 UN World Conference on Human Rights in Vienna, for example, NGO meetings convened in the same building at the same time as the official UN meetings, albeit on different floors and in different rooms. NGOs were able to speak to delegates informally and were, after some debate, permitted to observe some of the official meetings. At the UN, however, NGO meetings typically run parallel to official meetings and NGOs are relegated to observer status at best. Perhaps nowhere else has the participation of NGOs been as active and integrated into the intergovernmental process as it has in the OSCE. In the 1999 Review Conference in Vienna, for example, NGOs were permitted to make interventions on virtually the same terms as governmental delegations. Governments and NGOs, for all practical purposes, spoke in the order in which they signed the speakers’ list—meaning that many NGOs spoke prior to governments. (Governments, unlike NGOs, do have a “right of reply” when they are criticized either by other governments or by NGOs.) Because statements of governments and NGOs are not reviewed or censored, the criticisms can become very pointed. In the October 2000 implementation meeting in Warsaw, for example, the 200 representatives from 144 NGOs were warmly welcomed by Austrian Ambassador Dr. Jutta Stefan-Batsl, who spoke on behalf of the Chairperson-in-Office.21 In some cases, particularly for states with poor human rights records, the OSCE implementation and review meetings provide virtually the only forum for NGOs to speak directly to officials from their own governments. The principal exception to NGO participation at OSCE meetings is at the weekly Permanent Council meetings, where NGOs have not yet been admitted.

I I. OSC E C OMMITMENTS REGARDING FREEDOM OF RELIGION AND BELIEF In order to understand the work of the OSCE on issues related to freedom of religion and belief, it is helpful to consider the issues along two different di-

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mensions: first, chronologically, and second, thematically. These two aspects will be discussed in the following two sections respectively.

a. the evolving commitments The evolution of standards relating to freedom of religion and belief can best be understood by examining the concluding documents in three separate phases: first, the cold war period (1975–1989); second, the Vienna Document (1989); and third, the Copenhagen Document (1990) and its subsequent reaffirmations.

1. the early commitments: helsinki (1975) through madrid (1983) During the negotiations leading to the adoption of the Helsinki Final Act, the delegates divided the principal topics into what came to be called “baskets.” The first basket pertained to security issues, the second to economics, and the third to humanitarian concerns. In addition, a fourth area of concern involved the issues of implementation and follow-up. The commitments relevant to the rights of religion and belief in the Helsinki Final Act are found in the humanitarian concerns of Basket III, but also—perhaps surprisingly—in the security concerns of Basket I as well. The most significant human rights commitments of the Final Act appear in the text of the security concerns of Basket I.22 Although ostensibly focusing on issues of political and military security, Basket I identifies ten “principles” upon which genuine security should be founded. The most important provision relevant to human rights is Principle VII, “Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief.” The portion of Principle VII that pertains to rights of conscience provides that: The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion. **** Within this framework the participating States will recognize and respect the freedom of the individual to profess and practice, alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience.23 Although this text reads more broadly than does a comparable provision in Basket III, it nevertheless falls short of the international legal standard articu-

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lated in Article 18 of the International Covenant on Civil and Political Rights (ICCPR), which had been adopted a decade earlier in 1966.24 Whereas Principle VII of the Helsinki Final Act pertains essentially to the right to hold beliefs and to worship in groups, the ICCPR guarantees the right to “manifest” beliefs not only in worship, but also in such matters as teaching others, religious observance, and religious practice. Despite such limitations in Principle VII, it became the foundation for future Helsinki process efforts to enhance human rights. Moreover, by linking security issues to commitments to further human rights, Principle VII ultimately served as the touchstone for the West’s demands that communist governments comply with their Helsinki commitments. In the words of Thomas Buergenthal, “Principle VII established the normative basis of the CSCE human rights system as we know it today.”25 Basket III, identified in the Final Act as “Cooperation in humanitarian and other fields,” is the ostensible locus for human rights concerns in the Helsinki Final Act. The placement of human rights in the humanitarian basket reflects, to some extent, a cold war approach to the problem. In response to Western concerns about the lack of human freedoms, the delegates negotiated a text that emphasizes liberalization of contacts between the populations of East and West. Thus the focus of Basket III was not on democracy, elections, or political liberties, but on issues of de´tente, such as facilitating the marriages of citizens of different states, travel, sports, exchange of information, and cultural and educational exchanges.26 This approach, which emphasizes “human contacts” rather than political freedoms, is exemplified by the provision of Basket III pertaining to religion: [R]eligious faiths, institutions and organizations, practising within the constitutional framework of the participating States, and their representatives can, in the field of their activities, have contacts and meetings among themselves and exchange information.27 Thus, Basket III of the Helsinki Final Act does not assert an absolute right to religious freedom, but modestly suggests that religious groups should be permitted to hold meetings and exchange information provided that they otherwise comply with the law. The Western states were essentially pressing for liberalization of religious worship and for the right of religious believers to travel and communicate with fellow believers both domestically and abroad. The two first two follow-up meetings in Belgrade (1977–78) and Madrid (1980–83) did not contribute significantly to the rights of religion articulated in the Helsinki Final Act. The Belgrade meeting did not reach consensus on a concluding document, while the Madrid meeting added one slight additional guarantee. The Madrid Document provides that:

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The participating States reaffirm that they will recognize, respect and furthermore agree to take the action necessary to ensure the freedom of the individual to profess and practise, alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience. In [this] context, they will consult, whenever necessary, the religious faiths, institutions and organization, which act within the constitutional framework of their respective countries. They will favourably consider applications by religious communities of believers practising or prepared to practise their faith within the constitutional framework of their States, to be granted the status provided for in their respective countries for religious faiths, institutions and organizations.28 These Madrid principles advance two themes. The first calls upon government to consult with religious communities. Although this provision was originally included as a tacit criticism of communist countries, and although the commitment ought to be self-evident in any pluralistic society, many OSCE states continue, to this day, to refuse to engage in a meaningful dialogue with their religious minorities, even as they enact new laws that restrict their activities. Rather than treating minority religions as if they constitute a valued treasure that can enrich the life of a pluralistic society, the religious minorities often are treated as if they are dangerous pariahs to be shunned or suppressed. The second Madrid theme challenges states to implement the religion laws that had already been enacted. The constitutions of the communist countries typically provided fine-sounding guarantees for religious freedom and the statutes typically set forth reasonable procedures for registering associations. The West decided to play upon what it perceived to be Potemkin rights by committing participating states to follow their unenforced laws.29 This can be understood as an attempt by the Western powers to provide modest additional support for the struggling religious communities meeting in secret behind the Iron Curtain.

2. the transformation: vienna 1989 The third follow-up meeting began in Vienna in 1986 with as few positive signs for human rights as had the Belgrade and Madrid conferences. The tenor of Vienna changed significantly once the Soviet Union’s new General Secretary of the Communist Party, Mikhail Gorbachev, began to open and restructure the Soviet Union’s domestic and foreign policy and ceased opposing Western proposals. By January 1989, coinciding with the change of the U.S. presidential administrations from Ronald Reagan to George Bush, the participating states

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agreed to what might fairly be described as the most impressive multilateral commitment for guaranteeing religious rights that had yet been adopted anywhere in the world. Unlike the Helsinki Final Act, which was a linguistic retreat from the ICCPR, the Vienna Document constituted a significant advance. Article 16 of the Vienna Document is not only the most detailed and concrete provision relating to freedom of religion in the OSCE context, it is also the most detailed and concrete provision pertaining to religion of any international human rights instrument. 16. 16.1.

16.2.

16.3.

16.4.

16.5.

16.6.

16.7.

In order to ensure the freedom of the individual to profess and practise religion or belief, the participating States will, inter alia, take effective measures to prevent and eliminate discrimination against individuals or communities on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, political, economic, social and cultural life, and to ensure the effective equality between believers and non-believers; foster a climate of mutual tolerance and respect between believers. of different communities as well as between believers and nonbelievers; grant upon their request to communities of believers, practising. or prepared to practise their faith within the constitutional framework of their States, recognition of the status provided for them in their respective countries; respect the right of these religious communities to . • establish and maintain freely accessible places of worship or assembly, • organize themselves according to their own hierarchical and institutional structure, • select, appoint and replace their personnel in accordance with their respective requirements and standards as well as with any freely accepted arrangement between them and their State, • solicit and receive voluntary financial and other contributions; engage in consultations with religious faiths, institutions and or-. ganizations in order to achieve a better understanding of the requirements of religious freedom; respect the right of everyone to give and receive religious edu-. cation in the language of his choice, whether individually or in association with others; in this context respect, inter alia, the liberty of parents to ensure.

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16.8. 16.9.

16.10. 16.11.

the religious and moral education of their children in conformity with their own convictions; allow the training of religious personnel in appropriate institutions; respect the right of individual believers and communities of be-. lievers to acquire, possess, and use sacred books, religious publications in the language of their choice and other articles and materials related to the practise of religion or belief; allow religious faiths, institutions and organizations to produce, import and disseminate religious publications and materials; favorably consider the interest of religious communities to participate in public dialogue, including through the mass media.30

These Vienna commitments, although not as encompassing as the more broadly worded provisions of the ICCPR and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), nevertheless have the distinct virtue of being much more precise and specific.31 The important features of these Vienna commitments, which will be elaborated in Section B below, include the acknowledgment of the right of religious associations to obtain legal status; the obligation of states to take affirmative measures to promote religious freedom and tolerance; and the prohibition of interference in the internal affairs of religious groups.

3. a new order: from copenhagen (1990) to the present The twelve months following the signing of the Vienna Document in January 1989 witnessed the most dramatic internal upheavals on a European-wide basis since the revolutions of 1848. With the exception of the Soviet Union, Yugoslavia, and Albania, all of the communist governments of Europe were overthrown, and these latter three were unraveling. In its moves to restructure itself, the Russian Soviet Federative Socialist Republic adopted a new law on religious freedom in 1989 that was, arguably, the most liberal law on religion anywhere on the European continent.32 People of faith throughout Central and Eastern Europe were enabled to practice their religions more openly than they had been able to do for the preceding seventy years. The 1989 Vienna Document, in addition to setting standards, also called for three follow-up meetings on the human dimension. These three meetings subsequently convened in Paris (1989), Copenhagen (1990), and Moscow (1991). The Paris follow-up meeting, which concluded in June before the dramatic events of the second half of the year, failed to reach consensus on a concluding document. The meeting in the following year in Copenhagen, however, proved to be perhaps the most significant and far-reaching in terms of the human

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dimension than has any preceding or subsequent meeting. By the time the Copenhagen Human Dimension Meeting, which convened in June 1990, the entire political landscape of Europe had changed. The political dissidents of the communist era were gaining political control of their respective states. Efforts were well underway in many post-communist countries to draft new constitutions that included better human rights guarantees. In language that was new for the Helsinki process, but fully in keeping with the political euphoria of the time, the participating states declared in Copenhagen that they “recognize that pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental freedoms.”33 Whereas the First Principle of the Helsinki Final Act had been the recognition of the “sovereign equality” of states,34 the Copenhagen Document began with the recognition that “the protection and promotion of human rights and fundamental freedoms is one of the basic purposes of government.”35 The shift from recognizing the equality of states as the principal political reality to recognizing human rights as the foundation of politics constituted a dramatic conceptual change both in the political landscape of Europe as well as in the assumptions governing the Helsinki process. Although the Copenhagen Document was a philosophical advance in some areas of human rights, particularly national minorities, it did little more than reiterate international standards on religion and reemphasize that limitations clauses should be narrowly construed. Article II thus repeats the basic theme of the ICCPR and the ECHR. The participating States reaffirm that . . . everyone will have the right to freedom of thought, conscience and religion. This right includes freedom to change one’s religion or belief and freedom to manifest one’s religion or belief, either alone or in community with others, in public or in private, through worship, teaching, practice and observance. The exercise of these rights may be subject only to such restrictions as are prescribed by law and are consistent with international standards.36 The Copenhagen Document did, however, require participating states to “ensure” (rather than Vienna’s “recognize”) that the fundamental rights, including religious practice, be limited only in narrow circumstances.37 States will further “ensure that these restrictions are not abused and are not applied in an arbitrary manner.” Limitations on rights imposed by governments must be more than reasonable, they must be “strictly proportionate” to the aim of the law. In this perpetuation of the spirit of Vienna, the Copenhagen Document has now become the leading international human rights instrument restricting

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the grounds on which governments legitimately may limit the exercise of religious rights. The Copenhagen Document also raised the issue of conscientious objection to military service, but stopped short of suggesting that states be required to introduce such an exemption. Rather, Article 18.4 merely called upon member states to “consider introducing, where this has not yet been done, various forms of alternative service, which are compatible with the reasons for conscientious objection, such forms of alternative service being in principle of a non-combatant or civilian nature, in the public interest and in a non-punitive nature.”38 Finally, the Copenhagen Document brought to the forefront of OSCE concerns issues related to rights of national minorities. Since Copenhagen, the OSCE has become recognized as one of the most influential international organizations with regard to the response to minority issues.39 Since Copenhagen, OSCE documents referring to rights related to religion largely have reiterated prior commitments. The two most important OSCE religion-related commitments since Copenhagen are found in the summit documents issued as the 1990 “Charter of Paris for a New Europe” and the 1994 “Budapest Summit Declaration Towards a Genuine Partnership In a New Era.” The 1990 Paris Summit, which convened a few months after Copenhagen, repeated generally what had been said more specifically earlier that year. We affirm that, without discrimination, every individual has the right to: freedom of thought, conscience and religion or belief, freedom of expression, freedom of association and peaceful assembly, freedom of movement.40 In equally general language, the Budapest Summit Declaration provided that: Reaffirming their commitment to ensure freedom of conscience and religion and to foster a climate of mutual tolerance and respect between believers of different communities as well as between believers and nonbelievers, they expressed their concern about the exploitation of religion for aggressive nationalist ends.41 In summary, the OSCE commitments have moved from the relatively circumscribed rights related to human contacts typical of the de´tente era, to the specific rights enumerated in Vienna, to a strong affirmation of the importance of taking positive measures to ensure not only rights of religion, but of minority rights as well. Since Copenhagen, however, the principal emphasis in the OSCE’s human dimension has been the implementation of the commitments that have already been made rather than to establish new standards.

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b. the principal commitments pertaining to religion and belief 1. the right of religious associations to obtain legal status is guaranteed The legal status of religious associations is possibly the single most serious ongoing problem in church-state relations in OSCE states today.42 In order for associations based upon religion or belief to operate in modern society, it frequently is important for them to have “legal personality” (or “juridical personality”) to obtain tax-exempt status, and to own and operate institutions such as schools and hospitals. Having legal personality enables associations to purchase or lease real estate, open bank accounts, and contract for the purchase of goods and services. Without legal personality, associations can be severely limited in their ability to conduct their activities. The Vienna Document addresses this issue in Article 16.3 by providing that “communities of believers” should be permitted, upon their request, to obtain the legal status provided by the laws of the respective countries. Article 16.3, in conjunction with Article 16.1, would seem to prohibit OSCE states from discriminating between those religious groups favored by the state and those who, on the basis of different beliefs, are disfavored by the state. Thus the use of a two-tiered status system—granting privileges to traditional and majority religions but not to new or minority religions—runs afoul of the commitments enunciated in the Vienna Document. More than in any other international instrument, the Vienna document enumerates the numerous legal privileges that should be afforded on a nondiscriminatory basis, including the rights to “establish and maintain freely accessible places of worship or assembly” and solicit and receive voluntary financial and other contributions” (Article 16.4), allow religious education (Articles 16.6 and 16.8), and permit the distribution of religious literature (Article 16.10).43

2. states obligate themselves to take affirmative measures to end discrimination and to promote tolerance Vienna Article 16 does not merely prohibit governments from discriminating against religions and minorities, it places upon them the affirmative obligation to “take effective measures to prevent and eliminate discrimination.” Thus, if individuals or groups within a state discriminate against each other, the state has the responsibility to take active steps to minimize or eliminate such discrimination. Moreover, the Vienna Document goes beyond the negative formulation of ending discrimination by positively affirming the state’s obligation to promote tolerance.44

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3. states commit themselves to refrain from interfering in internal religious affairs Vienna Article 16.4 prohibits state interference in the internal affairs of religious associations. Thus states cannot, on their own authority, replace or appoint religious leaders or alter the organization of the religious institutions.

4. states’ ability to restrict manifestation of belief on “national interest” grounds is circumscribed International guarantees for the rights of religion or belief (as well as the constitutions of most OSCE participating states) typically contain two clauses that may be described respectively as a “guarantee clause” and a “limitations clause.” A “guarantee clause” articulates a particular right (such as freedom of expression) that is protected by the convention or constitution. The “limitations clause” articulates the circumstances under which governments legally may limit the scope of the right contained in the guarantee clause. Most international conventions that include articles pertaining to the rights of freedom of religion and belief, for example, contain a guarantee clause that protects the rights of individuals to have, maintain, and change their thoughts and belief (sometimes called the forum internum) and the right of individuals to manifest those beliefs (sometimes called the forum externum). The guarantee clause on religion of the ECHR, for example, provides that Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.45 The ICCPR similarly provides that Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.46 It is generally held that the right to hold beliefs (forum internum) is inviolable and governments may never infringe upon that right by arresting and incarcerating people merely because they have unacceptable religious beliefs.47 However, it is generally understood that governments are permitted to limit

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the right of individuals to manifest their beliefs whenever such manifestations would harm the public safety, health, and order. Both the ECHR and the ICCPR contain limitation clauses that identify the circumstances under which governments may legitimately restrict the freedom to manifest beliefs. The limitations clause for the right of religion or belief in the ICCPR, for example, provides that “freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”48 When a government’s restriction on the exercise of a right is challenged, it will point to the limitations clause to justify its restriction. Thus a government might, for example, justify imposing a ban on public worship by stating that it did so in order to promote public order. Thus the rights that may be proclaimed in the guarantee clause may be undermined by a government’s reliance on the language of the limitations clause. The important interpretative issue is how broadly governments are permitted to interpret the scope of the limitations clause and thereby circumscribe or eliminate the right provided in the guarantee clause. The difficulty with this standard formulation in international law is that the limitations clause language provides governments with a broad range of options for legally limiting religious activities. Governments can always assert a raison d’e´tat for restricting disfavored religious activities, regardless of whether the activities constitute a serious disruption of the public order. The formulations within the ECHR and the ICCPR do not, in and of themselves, provide significant barriers to governments that seek to restrict manifestations of religion. Unfortunately, the two most important international supervisory institutions that have reviewed governmental rationalizations for restricting manifestations of religion, the European Court of Human Rights and the European Commission on Human Rights, generally have been unwilling to criticize or inquire in any meaningful way into a government’s rationalization for restricting manifestations of religion or belief.49 The limitations clause of the Vienna Document (Article 17), however, unlike the ICCPR and the ECHR,50 stresses not the possible restrictions on freedoms, but the importance of the freedoms themselves. The participating States recognize that the exercise of the abovementioned rights relating to the freedom of religion or belief may be subject only to such limitations as are provided by law and consistent with their obligations under international law and with their international commitments. They will ensure in their laws and regulations and in their application the full and effective exercise of the freedom of thought, conscience, religion or belief.51

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While the ICCPR and the ECHR might be read to allow a government to restrict religious activities whenever it asserts (justifiably or not) that it is doing so in order to promote public health, safety, or order, the Vienna Document sets a much higher standard. Rather than permitting governments to offer casual justifications for such limitations, the Vienna Document provides that the goal is the “full and effective exercise” of rights. Whereas the ECHR generally has been interpreted by the European Court of Human Rights to accept a government’s stated basis for restricting the exercise of the right, Vienna imposes additional constraints that leave states open to criticism if the justification is contrived or poorly founded. The Copenhagen Document further restricted the scope of the limitations clause beyond that which had been enunciated in Vienna. Article 24 of the Copenhagen Document provides that: The participating States will ensure that the exercise of all the human rights and fundamental freedoms set out above will not be subject to any restrictions except those which are provided by law and are consistent with their obligations under international law, in particular the International Covenant on Civil and Political Rights, and with their international commitments, in particular the Universal Declaration of Human Rights. These restrictions have the character of exceptions. The participating States will ensure that these restrictions are not abused and are not applied in an arbitrary manner, but in such a way that the effective exercise of these rights is ensured. Any restriction on rights and freedoms must, in a democratic society, relate to one of the objectives of the applicable law and be strictly proportionate to the aim of that law.52 Because governments are adept at rationalizing restrictions on human rights, the Vienna and Copenhagen documents provide strong new grounds for circumscribing their proffered justifications.

5. increased emphasis on the rights of minorities Finally, the OSCE has been among the leaders in international organizations that have attempted to promote the rights of minorities.53 As noted by Marı´a Amor Martı´n Este´banez: The OSCE has taken a leading role in the international regulation of minority protection, and its standard-setting activities have served as a basis for the progress achieved in the Council of Europe’s adoption of

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the Framework Convention for the Protection of National Minorities (1994) and the UN’s Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992).54 The OSCE has achieved this result not only by producing two of the leading international documents on the subject, but also by establishing an office of High Commissioner for National Minorities, which has been involved in a number of efforts to reduce conflict situations involving minorities on the European continent.55 In addition to the High Commissioner for National Minorities, a number of the other institutions of the OSCE, including the Chairmanin-Office and the ODIHR, have been involved in responding to conflicts involving minorities. Although the OSCE has been a trendsetter with regard to its involvement with minority issues generally, neither the High Commissioner nor the other institutions have chosen to focus on the religious dimension of minority conflicts.56

I II . EFFORTS TO IMPLEMENT COMMITMENTS ON FREEDOM OF RELIGION AND BELIEF There have been essentially three means by which the Helsinki process has sought to implement its commitments related to religion and belief: first, by providing mechanisms for states to raise human rights concerns directly with other states; second, by convening topical and thematic meetings; and third, by creating an Advisory Panel of Experts on Religion.

1. providing mechanisms for states to raise human rights concerns directly with other states The human dimension meetings have always provided a multilateral forum for states to raise publicly their concerns about human rights breaches by other states. With regard to freedom of religion, the United States launched the process of publicly identifying states that it believed had failed to comply with their commitments under the Helsinki process in the Belgrade follow-up meeting in 1977. At that time, the United States cited examples of human rights violations in the Soviet Union generally and specifically with regard to the treatment of Soviet Jews. In the words of one commentator, the United States “discoursed at length on religious intolerance, on ethnic and national discrimination, and on deprivation of the rights of speech, press[,] association, assembly, and conscience.”57 Following the Helsinki Conference of 1975, “[f]reedom of religion became a recurring issue at almost every CSCE meeting from 1975 onwards.”58 The United States also raised issues of religious freedom in other early meetings in Madrid, Ottawa, and particularly in the 1986 experts meeting in Berne.59

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Prior to 1989, however, the principal focus of implementation on religious rights dealt with issues related to emigration. The two religious groups that became the focus of the efforts to liberalize communist repression were the Soviet Jews and Christian Pentecostals, including a small group of Pentecostals who had fled to live in the U.S. embassy in Moscow. Natan Scharansky’s personal odyssey symbolized Soviet unwillingness to allow free emigration of Jews to Israel and the United States. By the time of the 1998 human dimension implementation meeting in Warsaw, several states and NGOs had begun to criticize states that were believed to have failed to comply with their OSCE commitments. The Consolidated Summary of the 1998 Implementation Meeting noted the concerns about increasing religious intolerance within OSCE states and the discriminatory application of laws regulating religious associations.60 The Final Report of the 1999 OSCE Review Conference notes, for example, that “[s]everal participating States and NGOs were of the opinion that some OSCE participating States applied [laws regulating registration of religious associations] in a discriminatory fashion, sometimes with the effect of unduly favouring established churches.”61 Although such states as Russia, Uzbekistan, and Turkey have often been cited by name in the meetings, allegations have more recently been made against several Western European states that have adopted or implemented measures that circumscribe new and minority religions. In 1998, 1999, and 2000, the United States, for example, identified France, Germany, Austria, and Belgium in this regard. Other states that have shown a particular interest in promoting freedom of religion and belief are the Netherlands, which long has been perceived as holding the “freedom of religion portfolio” for the European Union, and, more recently, Norway in 1999, while it served as the Chair-in-Office of the OSCE. While the European Union recently has criticized actions of Russia and governments in Central Asia, the United States has been the only country to have specifically identified some Western European countries as falling short of complying with their OSCE commitments.62 In addition to the public diplomacy in meetings, the Helsinki process encourages states to raise bilaterally issues of compliance with the commitments. In OSCE meetings it is now common for delegates to meet, both formally and informally, with NGOs and delegates of other countries to discuss human rights concerns. With regard to the early years of the Helsinki process, the distinguished Dutch diplomat, Harm J. Hazewinkel, observed that: Without the CSCE the meeting between GDR President Honecker and Cardinal Casaroli, the ‘Minister for Foreign Affairs’ of the Vatican, at the Helsinki Summit of 1975 would perhaps not have taken place. This, followed by informal contacts between delegations of the Holy See and the GDR along the margins of the Belgrade meeting, finally led to the visit

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of Casaroli to East Berlin later on. In 1978 high-level talks were also initiated between the GDR leadership and the Evangelical (Lutheran) Church.63 The Helsinki process thus encourages both public multilateral diplomacy through interventions at meetings and private diplomacy for “discussions on the margins” of the major meetings.

2. convening of topical and thematic meetings The OSCE has convened two meetings that were devoted specifically to the topic of freedom of religion. The first was in April 1996, when ODIHR convened its first “Seminar” specifically devoted to the issue of religion. Entitled the “Human Dimension Seminar on Constitutional, Legal and Administrative Aspects of Freedom of Religion,” it brought together more than 200 participants from forty-seven participating states and fifty-five NGOs.64 Although the Seminar did not have the authority to create binding commitments, the participants did formulate a number of recommendations. The participants recognized that religion is an important human factor in OSCE states and that governments may abuse rights of religious freedom. Because of the complexity of issues surrounding religion, and the difficulty of fully understanding the various legal structures, the principal recommendation that emerged from the Seminar was to have ODIHR undertake a thorough and conscientious study of the religious components of the legal systems of OSCE states in order to understand the problems and to create a panel of experts to review the issues further. During the late 1990s, OSCE interest in religion continued to increase. In 1999, under the leadership of Norway as the Chair-in-Office, the OSCE decided, for the first time, to hold four “Supplementary Meetings” in conjunction with the Parliamentary Assembly on human dimension issues that were of particular concern. The second such meeting, held on March 22, 1999, was the Supplementary Human Dimension Meeting on Freedom of Religion.

3. creating an advisory panel of experts on religion In response to the recommendations of the 1996 religion seminar, ODIHR convened an Advisory Panel of Experts on Religion that included persons from a cross-section of OSCE states. The Panel met in Poland twice in 1997 and issued a Preliminary Report in November 1997.65 The OSCE/ODIHR Religion Panel, like the UN’s Special Rapporteur on Religious Intolerance, has been one of the few institutions created by an intergovernmental body with a special mandate on the topic of freedom of religion and belief. The Religion Panel’s report emphasized that it was “strictly preliminary” and that the Panel “unan-

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imously agreed that insufficient information is available” on how the participating states administer laws related to religion. 66 The Religion Panel observed that violation of religious freedom is a serious issue in OSCE states and that religious intolerance stimulates violence. It noted that the use of pejorative terms about religious minorities (such as secte in French) should be avoided. Hence it is important that the difficulties of religious disputes be understood and treated with competence. The Panel concurred with the proposals that emerged from the Seminar and advocated a comprehensive study be undertaken in order to better understand the comparative approaches to laws. Although issues related to the legal aspects of religion are extremely complex, the Panel believed that issues related to religious freedom “must be a priority issue of first rank within OSCE activities.”67 The Panel was not, however, provided sufficient time or resources to undertake this important work. The work of the Panel did lead to the publication by ODIHR of an important monograph written by Professor Cole Durham in 1999 called Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities.68 Although the publication was not formally endorsed by the OSCE, it was written at the request of the Panel and reflects the input of its members. The monograph focuses on the extremely important issue of the laws on religion of the OSCE participating states and how, in many instances, they are used to circumscribe the rights of religious communities and undermine the commitments of the OSCE. The Experts Panel continues its work, albeit on a meager budget.69

C ONC LU SION It is impossible to know, with any degree of certainty, the actual impact the Helsinki process has had on religious freedom in the OSCE participating states. It is much easier to measure, for example, the concrete results of the decisions of the European Court of Human Rights.70 The European Court’s ability to track the results of its decisions, however, is the exception rather than the rule for intergovernmental human rights bodies. Just as one might reasonably ask what impact OSCE standards have had on participating states, one might also ask what impact the Universal Declaration of Human Rights or the ICCPR has had on states that adopted those instruments. One might speculate about the nature of the impact, but there is no satisfactory means of determining actual results.71 Nevertheless, it can be stated with some confidence that the OSCE has made issues of religious freedom an important issue on the international agenda of the participating states and has focused critical international attention on the practices of its participating states. The OSCE thus has acted both as a trendsetter in international standards as well as a vigilant observer of practices.

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endnotes 1. The term “OSCE” will be used as a generic term to describe the CSCE, the Helsinki process, and the OSCE proper. Technically, the “Conference on Security and Co-operation in Europe” was renamed the “Organization for Security and Co-operation in Europe” in 1995 to reflect the fact that it had become an ongoing institution with offices throughout Europe. (The American spelling of “organization” will be used throughout, except in quotations from other sources). 2. For historical accounts of the Helsinki process, see William Korey, The Promises We Keep: Human Rights, the Helsinki Process, and American Foreign Policy (New York: St Martin’s Press, 1993); Thomas Buergenthal, The CSCE and the Promotion of Racial and Religious Tolerance, 22 Israel Yr. Bk on Hum. Rts. 31 (1993); Thomas Buergenthal, The CSCE Rights System, 25 Geo. Wash. J. of Int. L. and Econ. 333 (1991); Arie Bloed (ed.), From Helsinki to Vienna: Basic Documents of the Helsinki Process 1 (The Netherlands: Martinus Nijhoff Publishers, 1990); John J. Maresca, To Helsinki: The Conference on Security and Cooperation in Europe 1973–1975 (North Carolina: Duke University Press, 1985). 3. One author described the original purpose of the CSCE from the perspective of the Communist states, as the “legitimization of Soviet domination of Eastern Europe through Western acceptance of post-war borders in the region.” See Korey, above n. 2, xviii. 4. Conference on Security and Co-operation in Europe: Final Act, August 1, 1975, 14 I.L.M. 1292 (1975) (“Helsinki Final Act”). OSCE documents are titled, drafted, and reprinted in such a way as to make uniform citations to them virtually impossible. In this paper, the author has responded to this difficulty by providing, wherever possible, both the page number in the I.L.M. and a description of where quoted provisions appear within the texts. 5. A meeting of experts on the human dimension was held in Ottawa, Canada, in mid-1985. The meeting failed to produce a document. See Korey, above n. 2, 170–9. Although the Ottawa meeting did not produce a document, it did set a significant marker in the OSCE process by focusing its attention, for the first time, exclusively on human dimension issues. For a compelling, first-hand account of Ottawa, see Harm J. Hazewinkel, Ottawa 1985—The Half-Way Meeting—Recollections of a Participant, 3 Osce Office for Democratic Institutions and Human Rights Bulletin 41–7 (1995). 6. See, e.g., Korey, above n. 2, 82–138. 7. Conference on Security and Co-operation in Europe: Madrid Session, September 9, 1983, 22 I.L.M. 1395 (1983) (“Madrid Document”); Conference on Security and Cooperation in Europe: Concluding Document from the Vienna Meeting, January 19, 1989, 28 I.L.M. 527 (1989) (“Vienna Document”). 8. Conference on Security and Co-operation in Europe: Document of the Copenhagen Meeting of the Conference on the Human Dimension, June 29, 1990, 29 I.L.M. 1305 (1990) (“Copenhagen Document”); Conference on Security and Co-operation in

Organization for Security and Co-operation in Europe 245 Europe: Document of the Moscow Meeting on the Human Dimension, Emphasizing Respect for Human Rights, Pluralistic Democracy, the Rule of Law, and Procedures for Fact-finding, October 3, 1991, 30 I.L.M. 1670 (1991) (“Moscow Document”). 9. It is either fitting or ironic—depending on one’s outlook—that most ODIHR seminars and meetings now convene in the buildings that formerly housed the Warsaw Pact Headquarters. 10. Following from the guidelines first established by the “Blue Book,” or more technically “The Final Recommendations of the Helsinki Consultations,” which was adopted in 1973, all participating states are eligible to attend meetings on the basis of full equality and decisions are reached by consensus, which means the absence of an expressed objection by a participating state. See Conference on Security and Cooperation in Europe: Final Recommendations of the Helsinki Consultations, ¶¶ 65, 69 (Rules of Procedure 1, 4). 11. See Buergenthal, above n. 2, 375–81, and 43–5. 12. A statement of the traditional doctrine was made by Leonid Brezhnev, thenSecretary General of the Communist Party of the Soviet Union, upon the signing of the Helsinki Final Act. “It is only the people of each given State and no one else, who have the sovereign right to resolve their internal affairs and establish their internal laws. A different approach would be perilous as a ground for international co-operation.” Igor I. Kavass, Jacqueline Paquin Granier, and Mary Frances Dominick (eds.), 2 Human Rights, European Politics, and the Helsinki Accord: The Documentary Evolution of the Conference on Security and Co-operation in Europe 1973–1975 64 (1981). 13. Moscow Document, 30 I.L.M. 1672 [Preface]. See also Conference on Security and Co-operation in Europe: Declaration and Decisions of the Helsinki Summit, 10 July 1992, 31 I.L.M. 1385, 1390 [Preface, ¶ 8] (1992) and Conference on Security and Co-operation in Europe: Report of the CSCE Meeting of Experts on National Minorities, July 19, 1991, 30 I.L.M. 1692, 1695–96 [Chapter II, ¶ 3] (1991). 14. Audrey Glover, The Human Dimension of the OSCE: From Standard Setting to Implementation, 6(3) Helsinki Monitor 31 (1995). Although Ambassador Glover may be correct as a matter of theory, it is impossible to deny that there were many tense moments in the Helsinki process history when representatives of the participating states sharply disputed the right of one state to criticize the internal affairs of another state. See, e.g., Korey, above n. 2, 170–2 (discussing 1985 Ottawa meeting on the human dimension). 15. Arie Bloed, The Human Dimension Of The OSCE: More Words Than Deeds?, 6(4) Helsinki Monitor 23, 24 (1995). 16. Louis Henkin, Human Rights and ‘Domestic Jurisdiction’ in Thomas Buergenthal (ed.), Human Rights, International Law and the Helsinki Accord 21, 22 (St. Paul, MN: West Publishing, 1988) (emphasis in original). This author shares Professor Henkin’s assessment that “much of the confusion about [domestic jurisdiction and nonintervention] derives from the tendency in international diplomatic life to confound legal concepts with political rhetoric.” Id. 21. See further Danchin, chapter 4, n. 59 and accompanying text.

246 t. je re my gunn 17. Korey, above n. 2, 61. 18. For the Madrid commitments on religion, see Part II below. For the voluntary discussion mechanism, see Madrid Document, 22 I.L.M. 1399 [Questions Relating to Security in Europe, Principle 9]. For descriptions of these early years, see Korey, above n. 2; Arie Bloed, above n. 2, 1–26; Buergenthal, above n. 2, 345–9. 19. Buergenthal, above n. 2, 38. 20. See Buergenthal, above n. 2, 33–40. 21. Office for Democratic Institutions and Human Rights, Implementation Meeting on Human Dimension Issues: Consolidated Summary (2000) 7, 8, 18. Some states have been less than enthusiastic about NGO participation at such meetings. 22. The OSCE continues to link human rights with security, as shown in the Istanbul summit document. “We commit ourselves to counter such threats to security as violations of human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief and manifestations of intolerance, aggressive nationalism, racism, chauvinism, xenophobia and anti-Semitism.” Organization for Security and Co-operation in Europe: Charter for European Security, November 19, 1999, 39 I.L.M. 255, 259 [¶ 19] (2000) (“Istanbul Charter”). 23. Helsinki Final Act, 14 I.L.M. 1295 [Questions Relating to Security in Europe, 1(a)VII]. 24. International Covenant on Civil and Political Rights, opened for signature July 6, 1966, 78 UNTS 277 (entered into force 1980) (ICCPR). Although the standard as articulated here is somewhat lower than in the ICCPR, Principle VII also pledges that the participating states will “act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. They will also fulfill their obligations as set forth in the international declarations and agreements in this field, including inter alia the international covenants on Human Rights, by which they may be bound.” 14 I.L.M. 1295. 25. Buergenthal, above n. 2, 389. 26. Basket III of the Helsinki Final Act also included a brief reference to the role and importance of “national minorities,” an issue that would become of much greater concern after 1989. 27. Helsinki Final Act, 14 I.L.M. 1315 [Cooperation in Humanitarian and Other Fields, 1(d) Travel for Personal or Professional Reasons]. 28. Madrid Document, 22 I.L.M. 1399 [Questions Relating to Security in Europe, Principle 10]. 29. Since 1997, several states have amended their laws to restrict religious organizations. At this point, therefore, it would be very unlikely that the OSCE would urge states merely to apply their laws as enacted. 30. Vienna Document, 28 I.L.M. 534 [Questions Relating to Security in Europe, Principle 16]. 31. The ICCPR provides that “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” ICCPR, Art. 18.1. The ECHR provides that: “Everyone has

Organization for Security and Co-operation in Europe 247 the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.” European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature November 4, 1950, 213 UNTS 222 (entered into force 1953) (Art. 9.1) (ECHR). 32. The law was repealed in 1997 and replaced by, arguably, the most restrictive law on religion on the European continent. For a discussion of the 1989 and 1997 Russian laws, see T. Jeremy Gunn, Caesar’s Sword: The 1997 Law of the Russian Federation on the Freedom Conscience and Religious Associations, 12 Emory Int. L. Rev. 43 (1998). 33. Copenhagen Document, 29 I.L.M. 1307 [Preamble]. 34. Helsinki Final Act, 14 I.L.M. 1293 [Questions relating to Security in Europe, 1(a)I]. 35. Copenhagen Document, 29 I.L.M. 1307 [I, 1]. 36. Ibid. 1311 [II, 9.4]. 37. Ibid. 1316 [II, 24]. For further discussion of the role of limitations clauses, see the discussion in section B.4 below. 38. Ibid. 1314 [II, 18.4]. 39. See discussion in section B.5 below. 40. Conference on Security and Co-operation in Europe: Charter of Paris for a New Europe, November 21, 1990, 30 I.L.M. 190, 194 [Human Rights, Democracy and Rule of Law] (1991). 41. Conference on Security and Co-operation in Europe: Budapest Summit Declaration on Genuine Partnership in a New Era, December 6, 1994, 34 I.L.M. 764, 799 [VII, ¶ 27] (1995). The Istanbul summit of 1999 did not advance the scope of freedom of religion or belief. See Istanbul Charter, 39 I.L.M. 259 [¶ 19]. 42. See Cole Durham, Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities (1999) (ODIHR Background Paper 1999/4) and Freedom of Religion: Advisory Panel of Experts Preliminary Report (November 1997). 43. For a detailed discussion of the divergence of European states from such standards, see Peter Cumper, The Rights of Religious Minorities: The Legal Regulation of New Religious Movements in Peter Cumper and Steven Wheatley (eds.), Minority Rights in the ‘New’ Europe 165 (The Hague: Martinus Nijhoff Publishers, 1999). 44. The requirement to promote tolerance was renewed in the Istanbul summit document. “We pledge to take measures to promote tolerance and to build pluralistic societies where all, regardless of their ethnic origin, enjoy full equality of opportunity.” See Istanbul Charter, 39 I.L.M. 259 [¶ 19]. 45. ECHR, Art. 9.1. 46. ICCPR, Art. 18.1. 47. The Chinese government’s actions beginning in the summer of 1999 to suppress the Falun Gong movement, including the arrest of persons solely on the ground of their adherence to the movement, presumably constitutes an example of violation of the internal right of conscience and belief.

248 t. jere my gunn 48. ICCPR, Art. 18.3. 49. Once the European Court finds that a government interfered with the manifestation of freedom of religion or belief under Art. 9.1, it then considers whether the interference falls within the scope of permissible limitations in Art. 9.2. The European Court has a three-part test to measure whether the government’s limitation was permissible: first, whether the interference was “prescribed by law,” second, whether there was a “legitimate aim” for the interference, and third, whether the interference was “necessary in a democratic society.” See, e.g., Kokkinakis v. Greece judgment of May 25, 1993, Series A no. 260-A, ¶¶ 36–49. The European Court generally is reluctant to question a government’s rationale for limiting manifestations of freedom of religion or belief. See T. Jeremy Gunn, Adjudicating Rights of Conscience Under the European Convention on Human Rights in John Witte, Jr. and Johan D. van der Vyver (eds.) Religious Human Rights in Global Perspective (Legal Perspectives) 305 (The Hague: Martinus Nijhoff Publishers, 1996). There have been, however, some exceptions to this general reluctance. See Darby Case judgment of October 23, 1990, Series A no. 187, ¶ 34; Thlimmenos v. Greece, judgment of April 6, 2000 (Application no. 34369/97), ¶ 47. See Danchin and Forman, chapter 5 in this volume for a detailed discussion of the European Court’s decisions on religious freedom. 50. ICCPR, Art. 18.3, ECHR, Art. 9.2. 51. Vienna Document, 28 I.L.M. 534 [Questions Relating to Security in Europe, Principle 17]. 52. Copenhagen Document, 29 I.L.M. 1316 [II, 24]. 53. The rights of minorities have long been understood to be a theoretically challenging concept within the human rights domain, beginning with the difficulty of defining exactly what is meant by “minority.” “Even the definition of minorities is contested—so much so that most contemporary international legal instruments dealing with minority rights fail to include a definition.” David Wippman, Symposium: Human Rights on the Eve of the Next Century: Aspects of Human Rights Implementation: The Evolution and Implementation of Minority Rights, 66 Fordham L. Rev. 597 (1997). The difficulties extend to determining exactly how, and in what way, the rights of a “minority group” as such differ from the rights of individuals, including individuals who also may be members of minority groups. Is there, for example, any difference between the right of a minority group to exercise its “group” right of freedom of religion and belief from that of individual (or even a group of like-minded individuals) exercising the same right? And what if an individual within a recognized minority group (however defined) is coerced against her will by the group to adhere to group customs in a matter such as wearing religious garb? Which should prevail, the right of the individual within a minority group to dissent or the minority group as a whole to preserve its religious traditions? While the literature on the subject of minority rights is vast, these basic questions remain essentially unresolved. For some of the leading discussions in English, see, e.g., Inis L. Claude, Jr., National Minorities: An International Problem (Cambridge: Harvard University Press. 1951); Francesco Capotorti, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on the Rights of Persons Belonging to Ethnic,

Organization for Security and Co-operation in Europe 249 Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub. 2/384/Rev.1 (1979); Louis B. Sohn, The Rights of Minorities in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights 270 (New York: Columbia University Press, 1981); Richard B. Bilder, Can Minorities Treaties Work?, 20 Israeli Y.B. of Hum. Rts. 71 (1991); Natan Lerner, Group Rights and Discrimination in International Law (The Netherlands: Dordrecht, 1991); Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Clare Press, 1991); Andras B. Baka, The European Convention on Human Rights and the Protection of Minorities Under International Law, 8 Connecticut J. of Int. L. 227 (1993). See also Danchin, Introduction to this volume, at n. 26 and accompanying text. 54. Marı´a Amor Martı´n Este´banez, Minority Protection and the Organisation for Security and Co-operation in Europe in Cumper and Wheatley (eds.), above n. 43, 33. The Council of Europe’s Framework Convention, which grew out of OSCE work, is “the only general multilateral treaty focused on minority rights that has yet emerged.” Wippman, above n. 53, 612. 55. Copenhagen Document, 29 I.L.M. 1305 and Conference on Security and Cooperation in Europe: Meeting of Experts on National Minorities, July 19, 1991, 30 I.L.M. (1991), Copenhagen Document. 56. For a comprehensive discussion of the role of the OSCE in minority issues, see Martı´n Este´banez, above n. 54, 35–45. 57. Korey, above n. 2, 88. 58. Harm J. Hazewinkel, Religious Freedom in the CSCE/OSCE Process, 9(3) Helsinki Monitor 9, 11 (1998). 59. Korey, above n. 2, 196–7. 60. Implementation Meeting on Human Dimension Issues: Consolidated Summary (October 26 –November 6, 1998). 61. 1999 OSCE Review Conference Final Report (September 20–October 1, November, 8–10, 1999). 62. The United States identified, inter alia, France, Austria, Germany, and Belgium in its interventions in the 1998 Implementation Meeting in Warsaw and the 1999 Review Conference in Vienna. In their rights of reply, some states have in turn criticized the United States. 63. Hazewinkel, above n. 58, 10. See also Otto Luchterhand, The CSCE Norms on Religious Freedom and Their Effects on the Reform of Soviet Legislation on Religion, in A. Bloed and P. van Dijk (eds.) The Human Dimension in the Helsinki Process 162 (Boston: Dordrecht, 1991). 64. Human Dimension Seminar on Constitutional, Legal and Administrative Aspects of Freedom of Religion: Consolidated Summary 4–5 (1996). The Council of Europe had convened its own seminar on this topic four years earlier: Freedom of Conscience: Proceedings (Seminar organized by the Secretariat General of the Council of Europe in co-operation with the F.M. van Asbeck Centre for Human Rights Studies of the University of Leiden, November 12–14, 1992) (1993). 65. Durham, above n. 42.

250 t. jere my gunn 66. Ibid. 3. 67. Ibid. 4. 68. Ibid. 69. The Experts Panel and some participating states continue to work to place issues of religious freedom at the forefront of the OSCE human dimension agenda. 70. The European Court is able to point, with specificity, not only to the effects on an applicant whose conviction has been reversed, but also to the repeal or amendment of laws resulting from the decisions of the Court. The European Court publishes on its website an impressive document that describes the changes of laws in countries following adverse decisions by the European Court. Regarding the 1992 Kokkinakis case, above n. 49, for example, in which the European Court reversed the conviction to a charge of illegal proselytism, the Court reports as follows: “In a circular letter of August 3, 1993 the Ministry of Justice [of Greece] drew the attention of the competent legal authorities to their obligations to interpret Greek law in conformity with the requirements of the judgment. Since 1994 there have been only two convictions for the proselytism of minors.” See Effects of Judgments or Cases 1959–1998 (http:// www.echr.coe.int/Eng/EDocs/EffectsOfJudgments.html). 71. It is this author’s personal observation that a potentially significant effect of the OSCE’s increasing interest in freedom of religion or belief will be the unintended result of improving communications and coalitions among religious minorities. As they participate in OSCE implementation meetings and other international fora on religious freedom, many religious groups are becoming less isolated and more willing to speak publicly about their rights and join with others to do so. No broad-based coalitions of religious minorities are likely to emerge, but smaller-scale cooperation is likely to occur.

Chapter 7 s e l f -de t e r m i na t i on a n d t h e r i g h t t o s e c e ssi on of r e l i gi ou s m i n o r i t i e s u n d e r i nt e r na t i ona l l a w Johan van der Vyver

There is a marked tendency in the world today for peoples with a strongly felt group identity to seek political self-control—either within the existing political structures of a plural community (political participation by means of representation of the group in the agencies of government), or through the establishment of a distinct and exclusive sovereignty (secession from the existing state.) This tendency is not confined to sections of a population that share a common religion, but may also be detected in the aspirations of national or ethnic, cultural, and linguistic minorities. Francesco Capotorti, the United Nations Special Rapporteur on the protection of minorities, defined a minority as “a group numerically inferior to the rest of the population of a State in a non-dominant position, whose members— being nationals of the State—possess ethnic, religious, or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed toward preserving their culture, traditions, religion, or language.”1 Minorities in the present context does not necessarily denote sections of the community that are relatively smaller in number. We are here mindful of all factions of the population belonging to a multireligious, multiethnic, or multicultural society, who feel disempowered within the total enclave of the body

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politic. A minority in this sense may indeed constitute a numerical majority of the population. Several questions will arise when one considers the steadfast and often uncompromising insistence of religious minorities, among others, upon group representation in the structures of government, or—ultimately—political independence: What is it that ignites this flame of political exclusivity in the hearts of religiously, ethnically, or culturally defined like-minded peoples, this urge to politically unite those perceived to belong by virtue of other than political binding forces? It is not uncommon for religious minorities, among others, to found the impetus of their political agenda on the right to self-determination. This, too, is problematic: Does the right to self-determination indeed afford sanction to political participation of a religiously defined group (or of any other sectional faction) in government structures of the state, and can it be relied upon to legitimize secession of a territory from an existing state? The notion of a political community founded on a common religious (or ethnic or cultural) commitment of its citizenry reflects a certain intertwinement of political and essentially apolitical facets or factions of societal reality—a confusion of political life and, inter alia, religious belief. Has political theory or state practice produced a feasible recipe for reconciling the often conflicting forces engendered by the interaction between political power and religionspecific militancy?

I . FORMATION OF AND DESIRE FOR POLITICAL EXC LU SIVITY OF THE GROUP Eastern Europe represents a particularly instructive example of regions of the world where ethno-religious diversities within national borders produced profound political conflict. There, the major religious forces of the world—Eastern Orthodoxy, Roman Catholicism, Islam, and Protestantism—met and competed, often vehemently, for adherence to their respective dogma, thereby adding new dimensions to profound dissension founded on centuries of ethnic rivalries. The demise of the Soviet block coincided with deliberate attempts to establish homogenous political communities, only to find that migration, settlement, and subjugation produced a diversified topography in almost every segment of the region that made the revival of “nation states” quite impossible. Disintegration of the former Yugoslavia, for example, indeed resulted in the establishment of a large measure of religious homogeneity in certain territories, notably Slovenia, Montenegro, and—to a lesser extent—Croatia, but, in spite of deliberate attempts at ethno-religious cleansing, left others, such as Bosnia and Herzegovina, Macedonia, and Serbia, with a religiously defined heterogeneous population and concomitant political divides. The question to be con-

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sidered under the present heading may be succinctly stated: What is it that drives religious, ethnic, and cultural minorities to seek their own political structures—or, even worse, to want to secede from existing states with a view to establishing a supposedly homogenous body politic? The question becomes particularly troublesome when one considers that secessionists seldom consider the economic viability of their proposed exclusive state, or for that matter, given the absence in their midst of a material and technical infrastructure or a trained bureaucracy to sustain the proposed state, its political feasibility. Secessionists mostly proceed on the fallacious assumption that the preservation of religious, cultural, or ethnic values is dependent upon political power; and further, that persons sharing a common religious conviction, ethnic heritage, or cultural tradition would also see eye-to-eye in matters of governmental policies. Nothing, of course, could be further from the truth. The desire to transform pluralistic societies into homogenous political communities might simply reflect a general tendency to foster strong group identities. An obsession with homogenous political societies would more often than not be driven by distinct manifestations of xenophobia. Ethnographic complexities may indeed be aggravated—as noted by Christopher Quaye—when one distinct group within a complex society is subjected to persecution by another.2 However, the desire of people to seek strength in common bonds with other persons perceived to be members of their kind may also derive impetus from elements of totalitarianism in the political systems from which the group-conscious section of the population wishes to escape. It is a question of governments doing too little to afford constitutional protection to the lifestyle and interests of religious, ethnic, or cultural minorities; and in consequence of the absence of constitutional constraints that could place limitations on the exercise of political power, governments are often inclined to regulate unduly the internal affairs of sections of the community with distinct religious, ethnic, or cultural affiliations. Totalitarianism manifests itself when the repositories of state authority take it upon themselves to regulate unduly the private lives of persons under its control, or to interfere in the internal affairs of institutions other than organs of state. In church-state relations, totalitarianism is exemplified by the institution of an established church, systems requiring the registration of religious institutions with state authorities, and state-imposed prescriptions of a minimum membership of church organizations as a precondition for such registration. In the Eastern European context, Bulgaria may be singled out as a country where totalitarianism in the above sense continues to prevail. Although the Constitution of Bulgaria professes to uphold the separation of religious institutions from the state,3 it goes on to proclaim Eastern Orthodox Christianity to be the “traditional religion” of the country.4 Freedom of conscience, freedom

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of thought, and the right to choose a religion (or to uphold atheistic views) are guaranteed,5 but the freedom of conscience and religion must be exercised subject to the demands, inter alia, of “national security [and] public order.”6 The right of churches and religious communities to freely perform their rites must be exercised “within the limits of the Constitution and the laws.”7 The Law on Religion, 1949, makes provision for the institution, as part of the state bureaucracy, of an Office of Religious Affairs, and compels church institutions to submit their appeals, circulars, and other papers or articles “of public interest” to its director, who in turn may prohibit the circulation or execution of those appeals, circulars, papers, or articles which “contradict the laws, public order or good morals.” The Law on Religion, 1949, further prohibits the establishment of hospitals and charitable or other similar institutions by churches. Churches require the permission of the Director of Religious Affairs to maintain contact with foreign denominations, institutions, and organizations, or with persons living or placed outside the country, and also for receiving donations from abroad. Proselytizing by foreign missions is absolutely forbidden.8 The Directorate of Religious Affairs may also stifle the appointment of Church officials. In 1992, the director issued a decree stating that the acting Bulgarian Patriarch Maxin was not elected in accordance with the bylaws of the Bulgarian Orthodox Church, and furthermore, that the Church was not registered with the Office of Religious Affairs.9 The Holy Synod of the Bulgarian Orthodox Church brought an action in the Supreme Court of Bulgaria to set aside, on review, an earlier judicial decision declining its protestations of the director’s decree. The application was dismissed by the Supreme Court.10 The mandatory registration of religious institutions is required by many Eastern European states, combined in several instances with the requirement of a minimum number of adherents to the religion applying for registration. In Russia, a local religious organization may not be established by fewer than ten citizens of the Russian Federation.11 In Poland, the Law of May 17, 1989, On Guarantees of Freedom of Conscience and Belief 12 requires the endorsement of an application for registration as a prerequisite for “[t]he right to create churches and other religious unions”13 by at least fifteen Polish citizens.14 In Hungary, the registration of churches is conditional upon their being founded by at least 100 natural persons.15 In Slovakia, at least 20,000 signatures must endorse the application for registration of a church.16 The constitutionality of the Hungarian provision requiring a minimum number of founding members of a church was contested in the Constitutional Court in 1993.17 The application was based on Article 60.2 of the Hungarian Constitution, which guarantees the common exercise of religion, and on Article 90.3, which makes provision for the separation of church and state. The Court rejected the application because the requirement in question applied equally to

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all religious denominations. As far as the separation of church and state is concerned, the Court pointed out that registered churches enjoyed a greater measure of internal autonomy than other social entities in the country, and it was therefore within the (political) domain of the state to establish conditions to be satisfied by religious institutions in order to qualify for official “church” status; churches with a smaller membership can in any event still exercise religious (in contradistinction to the privileged civil) functions within the body politic. In another matter, the Hungarian Constitutional Court stated that it was not for the state to decide which characteristics ought to be satisfied by any particular belief in order to qualify as a religion: that should be left to “selfinterpretation by the churches.”18 The state “can only make appropriate general rules about religion and churches which can be used equally for all churches and religions.”19 The Slovak precondition for registration can of course be applied to stifle the activities of religious institutions with fairly substantial support in the country. In 1993, the Roman Catholic Church, with a membership of 3,187,383, represented the majority religion in Slovakia, followed by the Lutheran Church (Augsburg Confession) with 326,397 members, the Greek-Catholic Uniate Church with 187,733 members, the Reformed Calvinistic Church with 82,545 members, and the Orthodox Church with 37,376 members.20 The Jehovah’s Witnesses (10,501 members) and “other Churches and religious institutions” (3,625 members)21 clearly fell short of the minimum support required for their registration with the political authorities of Slovakia. In recent times, several Eastern European countries have enacted legislation requiring re-registration of religious institutions with a view, clearly, to enforce restrictions upon those perceived to be undesirable. In Bulgaria, for example, the Persons and Family Act, which requires the registration of nonprofit associations, was amended in 1994 to mandate the re-registration of such associations and, in terms of the newly enacted Article 133a, to make consent of the Council of Ministers a prerequisite for registration. Acting pursuant to that provision, the Council of Ministers declined to approve the re-registration of, inter alia, the Jehovah’s Witnesses.22 In July 1997, following a decision of the Supreme Court of Bulgaria to uphold the Council’s decision,23 a complaint lodged with the European Commission of Human Rights by the Jehovah’s Witnesses in this regard was held to be admissible by the Commission,24 and subsequently a friendly settlement of the dispute was reached. In September 1997, Russia enacted the Law on Freedom of Conscience and Religious Associations,25 which mandates the re-registration of all religious organizations that have not been registered in the Russian Federation for a period of at least fifteen years.26 To avoid the impediments imposed upon this category of religious organizations, the religious organization bears the onus of produc-

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ing documentary evidence of its “existence on the corresponding territory” for the critical period of fifteen years.27 And such religious organizations must in fact re-register annually until they satisfy the fifteen years criterion. It should be noted that fifteen years takes one back to the communist era and the profound repression of religion in the Soviet Union. The fifteen years impediments are therefore imposed not only upon the so-called “new religions,” but also upon the ones that might have declined to seek registration in the past on grounds of principle, or out of fear for persecution of their office bearers, or in the interests of members of their flock. Included in the under-fifteen years group are the Roman Catholic Church, The Church of Jesus Christ of Latterday Saints (Mormons), and the Baptists. The infamous Article 27.3 spells out in precise detail the restrictions imposed upon this group of religious institutions: •

• • •

•

• • •

The members of those religious organizations entertaining conscientious objections to military service will not be allowed to do alternative service in lieu of military conscription, and their clergy will not qualify for deferment of conscription into military service and exemption from military training in peace time;28 They are not entitled to create educational institutions,29 or to teach religion to their children in municipal educational institutions;30 They may not attach themselves to the representative body in Russia of a foreign religious organization;31 They are not permitted to carry out religious rites in health centers and hospitals, in children’s homes, in homes for the elderly and institutions for handicapped persons, or in prisons or similar institutions;32 It is forbidden for them to produce, acquire, export, import, and distribute religious literature, printed, audio, and video material, and other articles of religious significance,33 and they may not institute enterprises for producing liturgical literature and articles for religious services;34 They are precluded from the right to create educational organizations and institutions.35 They may not set up schools for professional religious education for the training of their clergy;36 and It is forbidden for them to invite foreign citizens for professional purposes, including preaching and religious activity.37

What is here forbidden for religious institutions without the fifteen-year registered tenure in the Russian Federation is included in the statutory entitlements of religious institutions complying with the fifteen-year requirement. Distin-

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guishing between these two categories of religious institutions seems arbitrary and in any event lacks a reasonable basis. The differentiations founded on this classification are clearly discriminatory. It is perhaps worth noting that the Supreme Court of the Republic of Udmurtia in the Russian Federation, in a decision handed down in the town of Izhevsk on March 5, 1997,38 declared unconstitutional a Law of the Udmurt Republic “On Missionary Activity on the Territory of the Udmurt Republic.”39 The Law placed severe restrictions on missionary activities and was held to violate Article 28 of the Constitution of the Russian Federation, which—as cited in the judgment—provides that: Everyone is guaranteed freedom of conscience, freedom of confession, including the right individually and jointly with others to profess any religion or to profess none, freely to choose, to hold and to spread religious or other convictions and to act in accordance with them. I was raised in a country where totalitarian interference of the state in the private sphere of our day-to-day lives also reigned supreme.40 In apartheid South Africa, the state prescribed, with race as the prime criterion, whom one could marry, where one could reside and own property, what schools and universities one would be allowed to attend, and which jobs were reserved for persons of one’s racial kind. The state dictated to sports clubs whom they could admit as members, and against whom they were permitted to compete. The sick had to be conveyed in racially exclusive ambulances, could receive blood transfusions only from donors of their own race, and only qualified for treatment in racially defined hospitals. The state even regulated, with race as the primary criterion, who would be allowed to attend church services in certain regions, and where one could be buried.41 South Africans did not seek to resolve state interference in their day-to-day lives through secession, perhaps because those most discriminated against constituted a vast majority (80%) of the population. Constitutional change in the country that took effect on April 27, 1994 was nevertheless designed to innovate social, political, and legal structures that would be radically different from those of the country’s past history. The new constitutional dispensation in that sense emanated from a reactionary response to the evils of the preceding era.42 The 1996 Constitution,43 while thus recognizing “the injustices of our past,”44 accordingly depicted the new South Africa as “an open and democratic society based on human dignity, equality and freedom.”45 The constitutional Bill of Rights46 provided the legally enforceable backing for such a society. Included in the Bill of Rights one finds a solemn decree sanctioning the right to selfdetermination of cultural, religious, and linguistic communities:47

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(1)

(2)

Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of their community, to— (a) enjoy their culture, practice their religion and use their language; and (b) form, join and maintain cultural, religious and linguistic associations and other organs of civil society. This right may not be exercised in a manner inconsistent with any other provision of the Bill of Rights.

The nondiscrimination clause furthermore prohibits unfair discrimination by the state,48 and by any other person,49 based on, among other things, race, ethnic or social origin, color, religion, conscience, belief, culture, language, and birth.

II. THE RIGHT TO SELF -DETERMINATION The right to self-determination of peoples, alongside the equality of nations, large and small, has been recognized as a basic norm of international law.50 In terms of Article 27 of the International Covenant on Civil and Political Rights of 1966,51 self-determination as currently perceived entails the following principle: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”52 Religious, ethnic, and cultural minorities have come to be recognized in public international law as “peoples” that have a right to self-determination. Although states remained the main subjects of international law, social entities other than the state have long ago been recognized as personalities with standing in international relations.53 “Peoples” have thus come to be the repositories in international law of a right to self-determination. For a proper understanding of the right to self-determination in international law, three presuppositions must constantly be borne in mind: 1. 2.

The concept of self-determination has over the years acquired different shades of meaning that must be clearly distinguished; The meaning to be attributed to self-determination in any particular instance will be determined by the identity of the “people” which has a claim to that right; and

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3.

Current state practice does make allowance for legitimate secession of a territory from an existing state, but that right of secession stands on its own feet and should not be construed as a component of the right to self-determination.

The right to self-determination54 was introduced as a norm of international relations during World War I through separate contributions of the socialist leader, Joseph Stalin,55 and the American President, Woodrow Wilson.56 Since then, the concept from time to time changed its meaning and in fact developed through three clearly distinguishable stages. (a) First Phase. In the first phase of its development, demarcated more or less by the two World Wars, self-determination as perceived by Western protagonists of the principle remained focused upon legitimizing the disintegration of the Ottoman, German, Russian, and Austro-Hungarian empires.57 Secession of “peoples” from those empires was the major consideration, and in this stage of its development the right to self-determination could have been said to be vested in “ethnic communities, nations or nationalities primarily defined by language or culture” whose right to disrupt existing states derived justification from its substantive directive.58 It should be noted, though, that even then secession from existing empires was not a right in itself. In the advisory opinion of the International Committee of Jurists in the Aaland Island Case—which was, according to Nathaniel Berman, “one of the first extended legal discussions of self-determination”59—it was pointed out that “the right of disposing of national territory” was essentially an attribute of sovereignty and that “Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation.” It was only when “the formation, transformation and dismemberment of States as a result of revolutions and wars create situations of fact which, to a large extent, cannot be met by applying the normal rules of positive law” that “peoples” may either decide to form an independent state or choose between two existing ones. In such circumstances, when sovereignty has been disrupted, “the principle of self-determination of peoples may be called into play.” New aspirations of certain sections of a nation, which are sometimes based on old traditions or on a common language and civilization, may come to the surface and produce effects which must be taken into account in the interests of the internal and external peace of nations.60 (b) Second Phase. In the second, post–World War II, phase of its development, the right to self-determination acquired a distinctly anticolonialist nuance. In the Western Sahara Case, it was thus decided that the right to selfdetermination was to be applied “for the purpose of bringing all colonial situa-

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tions to a speedy end.”61 In the 1971 Namibia Case, the right to self-determination was said to be applicable to “territories under colonial rule” and that it “embraces all peoples and territories which ‘have not yet attained independence’.”62 Nathaniel Berman rightly concluded that “[s]elf-determination is a right of peoples that do not govern themselves, particularly peoples dominated by geographically distant colonial powers.”63 This does not mean, of course, that the right to self-determination denotes only the liberation of a political community from colonial rule, as some analysts of the concept seem to think.64 In the same phase of its development, the right to self-determination was extended to apply also to peoples subject to racist re´gimes.65 This development was probably prompted by the claim of South Africa that the establishment of independent tribal homelands as part of the apartheid policy constituted a manifestation of the right to self-determination of the different ethnic groups within the country’s African population. Not so, responded the international community. The tribal homelands were a creation of the minority (white) re´gime and did not emerge from the wishes, or political self-determination, of the denationalized peoples themselves. In this context, self-determination signified the right of (disfranchised) persons subject to racist re´gimes to participate in the structures of government of their own countries that controlled their political status. It is important to note that the “self ” in self-determination was no longer perceived to be sections of the population in multinational empires, but the entire community of a territory subject to colonial rule, foreign domination, or racist re´gimes. (c) Third Phase. In the third phase of its development—which chronologically emerged somewhat later than the decolonization phase but cannot in terms of time be separated from the latter—self-determination indeed came to be seen as a certain entitlement of segments of the population of independent, nonracist states. Antonio Cassese expressed the opinion that the right to self-determination as enunciated in Article 1 of the International Covenant on Civil and Political Rights of 196666—and this would also apply to the identical provision in the International Covenant on Economic, Social and Cultural Rights of the same year67—was not confined to non-independent peoples but also belongs to national or ethnic groups “constitutionally recognized as a component part of a multinational state.”68 Gaetano Arangio-Ruiz pointed out that the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations of 197069 made the right to self-determination applicable to “all peoples.”70 The Helsinki Final Act of 1975, by defining the principle of equal rights and self-determination of peoples as entitling “all peoples always

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. . . in full freedom, to determine, without external interference, and to pursue as they wish their political, economic, social, and cultural development,”71 certainly seems to include the peoples of independent states.72 The definition of self-determination as the right of peoples to “freely determine their political status and freely pursue their economic, social and cultural development”73 does not in itself exclude ethnic sections within a political community. More recently, the peoples within an independent and sovereign state with a claim to self-determination have been more clearly identified as national or ethnic, religious, and linguistic minorities. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities74 thus speaks of “the right [of national or ethnic, religious, and linguistic minorities] to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.” General definitions of the right to self-determination, such as the one contained in the Declaration on the Granting of Independence to Colonial Countries and Peoples of 196075 (proclaiming the right of peoples to “freely determine their political status” and the right to “freely pursue their economic, social, and cultural development”) must thus be limited and understood in the context of the “peoples” whose right is at stake. Governments, through their respective constitutional and legal systems, ought to secure the interests of distinct sections of the population that constitute minorities in the above sense. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities76 clearly spells out that obligation: protect, and encourage conditions for the promotion of, the concerned group identities of minorities under the jurisdiction of the duty-bound state; afford to minorities the special competence to participate effectively in decisions pertinent to the group to which they belong; do not discriminate in any way against any person on basis of his or her group identity; and in fact take action to secure their equal treatment by and before the law, and so on.77 The Council of Europe’s Framework Convention for the Protection of National Minorities, 199578 spelled out minority rights in much the same vein: it guarantees equality before the law and equal protection of the laws;79 States Parties promise to provide “the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions, and cultural heritage;”80 States Parties recognize the right of persons belonging to a national minority “to manifest his or her religion or belief and to establish religious institutions, organizations, and associations;”81 and the Framework Convention guarantees the use of minority languages, “in private and in public,

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orally and in writing.”82 Failure of national systems to provide such protection to sectional interests of minorities must be seen as an important contributing cause of the secessionist drive. In the post–World War II era of communist rule, the notion of selfdetermination was not foreign to multinational Eastern European states, although the exact designation of “a people” remained fraught with all kinds of conceptual difficulties. Consider in this regard the case of pre-1990 Yugoslavia, which was established after World War I (1914–1918) as a state of Southern Slavs. It united in one political entity the former independent states of Serbia and Montenegro, and the Austro-Hungarian provinces of Bosnia, Herzegovina, Croatia, Dalmatia, and Slovenia. In the post-World War II (1939–1945) era of its development, the legislature enacted three federal constitutions, the one of 1946 (which was drastically amended in 1953), the one of 1963, and the one of 1974. A particular feature of all of these constitutions was that the citizens of Yugoslavia were classified for political purposes into ethnic compartments, and those ethnic societies in turn fell into the major categories of “nations” (narodi) and “nationalities” (narodnosti).83 The status of “nation” was reserved for peoples who were exclusively indigenous to the regions included in that state,84 (i.e. Serbs, Croats, Slovenes, Macedonians, and Montenegrins), while “nationalities” were those who shared ethnic links with national groups elsewhere on the Continent (Albanians, Hungarians, Italians, Bulgarians, Turks, Slovaks, Czechs, and Russians) and considered “guests” in Yugoslavia. There were indeed also ethnic groups without a non-Yugoslavian “homeland” but who were nevertheless not regarded as “nations,” such as the Roma and Vlachs, and they were, constitution-wise, left out in the cold. The Muslim community did not really fit into the ethnic classification, because they founded internal solidarity on the basis of religion rather than cultural peculiarities. In the 1961 referendum, Muslims were nevertheless permitted to identify themselves as a distinct population group, and since 1963 seemingly enjoyed the status of a separate “nation.” Since a particular nation dominated in each of the Socialist Republics that constituted part of the federation, “nationalities” were always a minority. Members of a nation dominating a particular republic also settled in other republics, where they, too, constituted a minority. Certain provisions in the 1974 Constitution alert one to the fact that municipal settlements tended to be ethnically exclusive or segregated.85 And while political power came to be identified with ethnicity in each region, Yugoslavia remained saddled with a “minority problem” in every one of its constituent regions. Yugoslavia was thus depicted as “a community of peoples equal in right, who on the basis of the right to self-determination, including the right of separation, have expressed their will to live together in a federative state.”86 “Selfdetermination” in the Yugoslavian sense had two quite distinct meanings. “Self-

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determination” that included the right of (political) secession belonged to nations only,87 while nationalities were granted “self-determination” in the cultural sense. The Constitution of 1946 thus proclaimed: “National minorities88 . . . enjoy the right to and protection of their own cultural development and the free use of their own language.”89 In the same vein the Constitution of 1974 guaranteed the right of each nationality freely “to use its language and alphabet, to develop its culture and for this purpose to set up organizations and enjoy other constitutionally-established rights.”90 The Constitutions of 1963 and 1974 seem to emphasize, in their circumscription of the right to (cultural) self-determination, language rights and the right to use the alphabet peculiar to a particular nation or nationality. The following general principles prevailed in this regard: •

• • •

Every citizen could freely associate with any nation or nationality, or disassociate him/herself from a particular nation or nationality or from all nations and nationalities, and could not be compelled to disclose his/her alliance to any particular (or to no) nation or nationality; Every citizen had the right to the free use of his/her language and alphabet; Nations and nationalities were entitled to education through the medium of their mother tongue; Practicing or propagating national inequality and any incitement of national, racial, or religious hatred or intolerance was rendered unconstitutional and punishable.91

The predominance of nationhood over nationality interests appeared from several constitutional provisions. For example, although the nations and nationalities were said to have equal rights in Yugoslavia,92 and the languages of nations and nationalities, and their alphabet, were supposedly equal throughout the territory of Yugoslavia, the language of the dominant nation was the official language in each Republic “in conformity with the . . . Constitution and federal statute.” The right of nationalities to use their language and alphabet “in the exercise of their rights and duties, and in proceedings before state agencies and organizations exercising public powers” were subjected to the Constitution and statute—which evidently was dictated by the nation in whose “homeland” the nationalities happened to live. The official use of the language of a nationality could be sanctioned—again by the nation-dominated legislature of a constituent republic within the federal structure of Yugoslavia—in areas populated by the concerned nationality. The right of nations and nationalities to receive instruction in their own language was likewise regulated by statute in each Republic and autonomous province.93

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Religious freedom was regulated in the Constitution of 197494 on the basis of the separation of church and state. The “abuse of religion” for political purposes was strictly forbidden. Religious communities were afforded freedom to conduct their own religious affairs and religious services, but could establish religious schools for the training of the clergy only. Religious communities were permitted to own immovable property “within the limits determined by statute.” The profession of any religion was free and a private matter of the individual concerned. The “social community” was permitted to afford financial assistance to religious communities. These provisions are indicative of a system where the state assumed the power to prescribe to religious communities what would, and what would not, be legally permissible, while demanding of religious institutions to refrain from any interference in the affairs of state. This arrangement must have been a particular bone of contention to the Muslim community, which, as a matter of principle, rejects the separation of law and religion and of church and state. The collapse of Yugoslavia once again demonstrated the destructive potential of political systems where nationhood is not territorially defined but is determined by ethnic, cultural, or religious connection, where political alliances are founded on ethnic, cultural, or religious divides and nationalism is transformed into fascism, and where a “we-they” mentality is cultivated by encouraging divisive forces of ethnic, religious, or cultural prejudice. That, perhaps, was the main difference between the political transformation in Yugoslavia and South Africa. In South Africa, the political and religious divides cut across racial and ethnic barriers in the sense that all political formations and at least the mainstream religions95 include members of different racial, ethnic, and religious groups. The Government of National Unity established in 1994 in terms of the interim Constitution96 therefore represented a system of power-sharing of political parties and not of racial, ethnic, or religious factions of the population: the House of Assembly as part of the national legislature was composed on the basis of proportional representation of political parties;97 and political parties with at least 5 percent support in the elections of 1994 were entitled to proportional representation in the cabinet, while those with at least 15 percent support could nominate an Executive Deputy President.98 The precise date and exact causes of the demise of Yugoslavia remain clouded in mystery. The eruption of violence in Kosovo in March 1989, following the repeal by the Serbian Parliament of the autonomous status of the two provinces of Kosovo and Vojvodina, in any event marked the beginning of that demise.99 Efforts to establish segregated nations in the newly proclaimed independent regions of the former federation triggered violent attempts to capture enclaves of communities in neighboring territories considered as belonging to the ethno-religious kind of the aggressor state, and culminated in “forced re-

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movals” and ethnic cleansing which perhaps represent one of the most extensive and gruesome instances of genocide in modern history. Bosnia and Herzegovina, with its particularly rich ethnic diversity, in the end remained a battlefield for land, peoples, and power—and the centerpiece of the Dayton Accord.100 The Dayton Accord (and its eleven annexures) indeed avoided the language depicting sectional classifications of the population in the former Yugoslavia. Nevertheless, it created a consociational dispensation in Bosnia and Herzegovina founded upon the same ethno-religious segmentations of a strongly divided people and accorded constitutional relevance to only three of those segments— Croats, Serbs, and Bosnians (Muslims.) The country was divided into three regions, Bosnia and Herzegovina (the Federation), and a Serbian homeland, the Republika Srpska. The Serbs of Srpska were afforded sovereign powers in regard to the most important governmental matters.101 The Constitution (contained in Annex 4 of the Dayton Framework Agreement) furthermore makes allowance for a great variety of institutions, all composed on the basis of power-sharing (exclusively) between the three privileged population groups, and a number of foreign participants. In the two-chamber Parliament, the House of Peoples consists of fifteen delegates: two-thirds from the Federation of Bosnia and Herzegovina, of whom five have to be Croats and five Bosnians, and one third from Srpska, who would inevitably be five Serbs.The quorum of nine delegates must include three Bosnians, three Croats, and three Serbs. The House of Representatives has fortytwo members, two-thirds from the Federation of Bosnia and Herzegovina, and one-third from Srpska.102 A triad comprising the Presidency consists of one Bosnian, one Croat, and one Serb from Srpska. The Council of Ministers may include no more than two-thirds of its members from the Federation of Bosnia and Herzegovina, and deputy ministers may not be of the same constituent population group as the minister the deputy serves.103 The Constitutional Court includes four judges elected by the House of Representatives of the Federation of Bosnia and Herzegovina, two elected by the Assembly of Srpska, and three nominated by the President of the European Court of Human Rights.104 The same pattern of sectional representation and outside involvement repeats itself in a variety of other statutory bodies, such as the Central Bank, the Commission on Human Rights (comprising an Ombudsman and Human Rights Chamber), the Commission for Displaced Persons, the Commission to Preserve National Monuments, and the Commission on Public Corporations.105 There was a time when many South African constitutional actors also opted for democratizing the political structures of the country on the basis of a consociational pattern of power-sharing106 between—in the case of South Africa— racially defined segments of the community. The idea was soon discarded and

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was eventually substituted, as an interim arrangement, by the system of nonracial power-sharing described above.107 One of the major fallacies of the consociational model was that any political system founded on existing group formations in a polarized society—racism in the case of South Africa—carries within itself a very real potential to perpetuate fragmentations of the community that cause strife and conflict.108 It is surprising that the peace negotiators at Dayton were not sensitive to that potential.

II I. SELF-DETERMINATION AND SECESSION Four quite distinct meanings of the right to self-determination can thus be distinguished, determined in each instance by the identity of the “peoples” that emerged as repositories of the right: First, initially, when World War I was drawing to a close, the idea of self-determination of peoples was advanced to legitimize the disintegration of the world empires of the time and within that meaning indeed entailed the right of “peoples” in the sense of (territorially defined) nations to political independence. Second, following World War II, the emphasis of the concept of self-determination shifted to the principle of decolonization, the repositories of the concerned right now being colonized peoples and the substance of their right denoting political independence from foreign domination or colonial rule. Third, in the 1960s, yet another category of “peoples” came to be identified, namely those subject to racist re´gimes, and here the concept substantively denoted the right of such peoples to participate in the structures of government within the countries to which they belonged. Fourth, finally, the right to self-determination has been extended to national or ethnic, cultural, religious, and linguistic minorities whose particular entitlements are centered upon a right to live according to the traditions and customs of the concerned group. It is important to note that the right of peoples to self-determination does not include a right to secession,109 not even in instances where the powers that be act in breach of a minority’s legitimate expectations. The Supreme Court of Canada in a recent judgment110 pertaining to the legality of cession from Canada of the province of Quebec—should a majority of the residents of that province through a referendum seek to effect the severance of that territory from Canada—summarized as follows the distinction between self-determination (referred to in the judgment as “internal self-determination”) and secession (referred to in the judgment as “external self-determination”): The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through internal selfdetermination—a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right

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to external self-determination (which in this case potentially takes the form of a right to unilateral secession) arises in only the most extreme of cases, and then, under carefully defined circumstances.111 The distinction between internal and external self-determination has come to be widely accepted, but identifying external self-determination with secession is confusing and indeed self-contradictory. Self-determination of peoples is a matter of national independence in the case of peoples subject to colonial rule or foreign domination, participation in the political processes of a country in cases where the people concerned has been denied such participation on a discriminatory basis, and sphere sovereignty of peoples that uphold a strong (sectional) group identity within a political community. While the right of all sections of a community to participate in the political structures of that community and the exercise of autonomous powers by ethnic or cultural, linguistic or religious minorities might be seen as instances of “internal self-determination,” the achievement of national independence by a people subject to foreign domination or colonial rule would then be a matter of “external self-determination.”112 However, none of these manifestations of self-determination amounts to the disruption of national borders of a territorially defined political community and therefore does not add up to secession from an exiting state. After all, the establishment of a new state by means of secession applies to a particular territory,113 while the right to self-determination belongs to a “people.” Statehood essentially depends on a territorially defined foundation.114 The right to self-determination also differs from a right to secession in that the former constitutes a collective right, while legitimate secession may be exercised (in limited circumstances alluded to hereafter) as an institutional group right. A “collective human right” is afforded to individual persons belonging to a certain category, such as children, women, or ethnic, religious, and cultural minorities.115 The right of national minorities to peaceful assembly, freedom of association, expression, and thought, conscience, and religion116 thus belong to every member of the group and can be exercised separately, or jointly with any other member(s) of the group. An institutional group right, on the other hand, vests in a social institution as such and can only be exercised by that collective entity through the agency of its authorized representative organs. The right of a church to internal sphere sovereignty is in that sense an institutional group right.117 So, too, is the right to secession of persons territorially united as a nation.118 International instruments proclaiming the right to self-determination almost invariably also postulate inviolability of the territorial integrity of existing states,119 and reconciling the two principles in question necessarily means that self-determination must be taken to denote something less than secession. The United Nations’ 1993 World Conference on Human Rights expressed this view

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when the right of peoples to “freely determine their political status, and freely pursue their economic, social, and cultural development” was expressly made conditional upon the following proviso: This [definition of self-determination] shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.120 Self-determination of peoples is thus a matter of sphere sovereignty in regard to sectional interests of such groups and not of political sovereignty in the sense of national independence. International law has been quite adamant in proclaiming the sanctity of postWorld War II national borders,121 and in censuring attempts at secession in instances such as Katanga, Biafara, and the Turkish Republic of Northern Cyprus.122 As explained by Vernon van Dyke, “the United Nations would be in an extremely difficult position if it were to interpret the right to self-determination in such a way as to invite or justify attacks on the territorial integrity of its own members.”123 The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992124 reiterated that its provisions must not be taken to contradict the principles of the United Nations pertaining to, inter alia, “sovereign equality, territorial integrity and political independence of States.” The Framework Convention for the Protection of National Minorities, 1995 of the Council of Europe also proclaims: Nothing in the present framework Convention shall be interpreted as implying any right to engage in any activity or perform and act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States.125 In the Case Concerning the Frontier Dispute, the International Court of Justice explained the purpose of the principle of uti possidetis iuris, requiring respect for the intangibility of frontiers, as being “to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering powers.”126 The Court further explained:

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At first sight this principle conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.127 The Opinion of the Badinter Arbitration Committee on the disintegration of the Socialist Federal Republic of Yugoslavia is authority for the proposition that although the principle of uti possidetis was initially applied in settling decolonization issues in America and Africa, it is currently taken to be of general application.128 The Arbitration Committee held accordingly that the boundaries between Croatia and Serbia, between Bosnia/Herzegovina and Serbia, and possibly other adjacent states, as established at the time when those states were established, cannot be altered except by agreement freely arrived at by the states concerned. In terms of the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations,129 secession (or the restructuring of national frontiers) will indeed be lawful, provided the decision to secede is “freely determined by a people”130—that is, it is submitted, a cross-section of the entire population of the state to be divided and not only of the inhabitants of the region wishing to secede.131 Only on that basis could the United Nations find peace with the reunification of Germany, and the disintegration of the Soviet Union132 and of Czechoslovakia.133 The establishment of a new state through secession will also be recognized in international law if distinct territories of an existing state in a peace treaty following armed conflict should agree to part ways.134 Secession is thus sanctioned by international law in two instances only: (1) If a decision to secede is “freely determined by a people” (in the sense referred to above); and (2) if, following armed conflict, national boundaries are redrawn as part of the peace treaty. The parting of constitutional ways of the Czech Republic and Slovakia may serve as an example of the creation of new states under the first rule stipulated above, while the secession of Eritrea from Ethiopia exemplifies the second. The disintegration of the former Yugoslavia represents a complicated conglomeration of both principles.135 Some analysts of the concept of self-determination have sought to construct

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a substantive norm that would supposedly legitimize secession, in lieu of or in addition to the above purely formal legality requirements. Karl Doehring, for example, argues that an ethnic group has a right to secession if it is discriminated against because of its characteristic attributes.136 Dietrich Murswiek argues that a right to secession vests in a people “because of intolerable discrimination or the endangerment of their existence,”137 and he added that a right to secession would also prevail “[i]f a State does not satisfy a people’s claim to cultural rights and autonomy”—provided in each instance, though, that the people claiming the right to secede lives in a distinct territory where it constitutes a majority.138 The reasoning of Doehring and of Murswiek is based on a false premise, namely that secession is a manifestation of the right to self-determination. As pointed out earlier, United Nations resolutions and state practice reflecting on instances of discrimination—and here apartheid South Africa served as the prime example—never supported the fragmentation of the state as a means of protecting the interests of persons discriminated against but on the contrary strongly opposed the policy of separate development (racially defined “homelands”) of the South African government. As far as the writer hereof could establish, there are no cases where secession from an existing state has been claimed or effected to protect a cultural or ethnic, linguistic or religious community from extinction. And international instruments protesting the denial of the right to self-determination of cultural or ethnic, linguistic, or religious communities within the body politic expressly proscribe any strategy that seeks to secure the right to self-determination through means that would implicate the territorial integrity of the state. Current international law in any event does not link the right to secession to anything but the above formal directives based on (a) general consensus to rearrange national frontiers and (b) secession as a condition of peace in a situation of armed conflict—except perhaps in a negative sense. State practice indicates that the international community of states will not recognize the acquisition of a territory by force or through an act of aggression, the establishment of a political community in violation of the right to self-determination, or the fragmentation of a state prompted by racism.139 The common denominator here is the proposed establishment of a political community in violation of a peremptory norm of general international law (ius cogens). Emphasis on general agreement as a sine qua non of legitimate secession under the current norms of international law appears clearly from the opinion of the Canadian Supreme Court dealing with the secession of the province of Quebec from Canada. The Court noted that secession of one federal province implicates the interests of all Canadians, and that secession of Quebec from Canada would therefore require “clear” majorities among both the population of Quebec (which would mandate bona fide negotiations with other compo-

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nents of the federation in regard to the question of secession of the one province), and of all Canadians (which would sanction the constitutional changes required to effect secession).140 The Badinter Arbitration Committee was of the same opinion in regard to the disintegration of the Socialist Federal Republic of Yugoslavia. In response to the question whether the Serbian population of Croatia and of Bosnia-Herzegovina “as one of the constituent peoples of Yugoslavia” have a right to self-determination, the Committee proclaimed that 1. [W]hatever the circumstances, the right to self-determination must not involve changes of existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise. 2. Where there are one or more groups within a state constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law.141

I V. SPHERE SOVEREIGNTY OF POLITICAL AND RELIGIOU S MODALITIES There are many compelling reasons why the destruction of existing political communities harboring a plural society should be avoided at all costs: • •

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A multiplicity of economically nonviable states will further contribute to a decline of the living standards in the world community; The perception that people sharing a common language, culture, or religion would necessarily also be politically compatible is clearly a myth, and disillusionment after the event might provoke profound resentment and further conflict; Movement of people within plural societies across territorial divides has greatly destroyed ethnic, cultural, or religious homogeneity in regions where it might have existed in earlier times, and consequently, demarcation of borders that would be inclusive of the sectional demography which secessionists seek to establish is in most cases quite impossible; Affording political relevance to ethnic, cultural, or religious affiliation not only carries within itself the potential of repression of minority groups within the nation, but also affords no political standing whatsoever to persons who, on account of mixed parentage or marriage, cannot be identified with any particular faction of the groupconscious community, or to those who do not wish to be identified under any particular ethnic, religious, or cultural label. In consequence of the above, an ethnically, culturally, or religiously

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defined state will more often than not create its own “minorities problem,” which—because of the ethnic, cultural, or religious incentive for the establishment of the secession state—would almost invariably result in profound discrimination against those who do not belong, or worse still, a strategy of “ethnic cleansing.” What, then, might be the alternative? It would seem that several models attempting to address the dichotomy of law and religion, or church and state, have been put to the test. In a most fundamental sense, those models may perhaps be reduced to four basic presuppositions:142 the separation of law and religion (the American option); the identification of law and religion (the Muslim alternative); proclaiming the subsidiarity of law to religion in the domain of grace, and of religion to law in the realm of nature (the Roman Catholic perception); and the allocation of sovereign authority to institutions of religion and of law, each within its own sphere of distinct competencies. I shall confine my remarks in the present context to the latter design only—the one to which I am personally partisan. The Dutch expression “souvereiniteit in eigen sfeer” was first used in 1862 by a politician of the Netherlands, Guillaume Groen van Prinsterer (1801–1876), to designate the range of competencies of the church over against those of the state.143 The idea itself, however, preceded this descriptive phrase by approximately 300 years. According to Herman Dooyeweerd, “the first modern formulation of the principle of internal sphere-sovereignty in the societal relationship” is to be found in a statement of the medieval Calvinistic jurist, John Althusius (1557–1638).144 Althusius proclaimed that all distinct social entities are governed by their own laws and that those laws differ in every instance according to the typical nature of the social institution concerned.145 In the 300 years that separated Althusius and Groen van Prinsterer, the concept of the internal sovereign authority of social entities surfaced from time to time, mostly in the ranks of Lutheran political scientists and by and large confined to church-state relations. Friedrich Julius Stahl (1802–1861), for example, noted that church and state occupied places of independence of one another,146 that the church was “an institution of an altogether different kind,”147 and that “ecclesiastical authority . . . is to be strictly distinguished from secular authority.”148 Dutch political scientists and legal philosophers, schooled in the tradition of Calvinistic social theories, including in particular Abraham Kuyper (1837–1920), were particularly influential in extending the application of sphere sovereignty to the interrelationships of all (fundamentally different) structural social entities. The doctrine, as currently defined, received its final touches through the Philosophy of the Cosmonomic Idea of Herman Dooyeweerd (1894–1977).149 The notion of sphere sovereignty finds expression in various forms in some of the constitutions of the world. Singapore confines the internal

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sovereignty of religious groups to managing their own religious affairs.150 Ireland more generously proclaims the right of every religious denomination to manage its own affairs.151 Italy affords independence and sovereignty, “each within its own ambit,” to the state and the Roman Catholic Church only.152 Romania permits the organization of religious sects “in accordance with their own statutes” but “under the conditions of the law.”153 In the Czech Republic, “[c]hurches and religious societies administer their own affairs, appoint their organs and their spiritual leaders, and establish religious orders and other church institutions, independently from organs of the state.”154 Poland defines the relationship between church and state and other religious organizations on the basis of “the principle of respect for their autonomy and the mutual independence of each in its own sphere, as well as . . . the principle of cooperation for the individual and the common good.”155 There is, of course, more to sphere sovereignty than just that: •

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In contradistinction to the Islamic presupposition of the identity of law and religion, it proclaims church and state to be distinct social structures, each with a unique identity and the one irreducible to the other. As against the scholastic notion of subsidiarity, it stipulates in essence that social entities of different kinds, including church and state, do not derive their respective competencies from one another, but are in each instance endowed with an internal enclave of domestic powers that emanate from the typical structure of the social entity concerned and as conditioned by the particular function that constitutes the special destiny of that social entity. In opposition to the paradigm professing the separation of church and state, it recognizes the encaptic intertwinement of fundamentally different social structures,156 and it accordingly emphasizes the mutual symbiosis of church and state as peculiarly different social structures and of law and religion as distinct modal aspects within the social environment.

It may be noted, in passing, that there is seemingly a shift in Roman Catholic social theory toward recognizing a greater measure of sovereignty of church and state. Professor Ronald Minnerath almost said it in so many words. According to him, church-state relationships ought to be based on (a) the autonomy of each of the two parties, and (b) cooperation in areas of common interest;157 and he went on to explain: “Recognition of the autonomy of church and state requires that each shall be sovereign and independent in its own sphere.”158 Not every manifestation of authority being exercised within a social institution would qualify as a matter of sovereignty in the sense of “sphere

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sovereignty.” Sovereign powers relate to the interrelationships of structurally different kinds of social entities only. In the intrarelations of a social entity toward an assemblage of its own kind and constituting an integral component of itself, sovereignty would be out of the question. It is possible, of course, for such components of a community structure to be given authority to deal with matters falling within the domain of their domestic affairs. Such authority would then be a matter of delegated powers, emanating from the inner ties of a whole and its parts and being conditioned by a relationship of dominion and subordination, and constituted by a grant or concession of the superior social entity. In order to distinguish this kind of (delegated) authority from the sovereign powers of a societal institution, it might be called “autonomy.” Herman Dooyeweerd distinguished autonomy and sphere sovereignty as follows: But autonomy is not identical with sphere-sovereignty of the different types of societal relationships. The fundamental difference between the two is that autonomy only occurs in the relation of a whole to its parts, whereas sphere-sovereignty pertains to the relation between social structures of a different radical or geno-type, which in principle lacks the character of a part-whole relation.159 The relationship between regional and local authorities of a state toward the central government, or between a particular congregation and the denomination of which it is part, would in this sense be a question of autonomy and not of sovereignty. The doctrine of sphere sovereignty implicates much more than merely church-state relations. It indeed seeks to strike a balance between the living space of all social entities that exist and function within the body politic. Individuals have several group-related affiliations and participate in all kinds of social institutions. Each one of those social structures have, and may be identified by, a certain leading function: religious communities are essentially charged with fostering one’s faith; the family circle is centered upon mutual love and affection founded on biological ties; business enterprises are conditioned by the economic objective of profit-making; cultural organizations exist for the purpose of promoting all manifestations of the historical heritage of a people; educational institutions go about their business by enhancing the acquisition and development of scholarly knowledge; sports clubs function in the area of physical recreation, and so on. The doctrine of sphere sovereignty recognizes the existence and importance of such group entities in human society, but is equally adamant in its condemnation of all endeavors to afford to group interests a pertinence that would exceed the confines of its structural leading or qualifying function. Ethnicity, for example, is a distinctly cultural concept, and its relevance in human society should be kept in check with a view to its

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typically cultural designation. The same applies in principle to communities united by a common religious commitment. The possession and exercise of civil and political rights are not determined by either ethnic or religious qualities, and ought therefore also not to be conditioned by such cultural or religious determinants. The doctrine of sphere sovereignty thus requires of every social entity to focus its activities on its characteristic function, and—negatively stated—not to indulge in, or obstruct the exercise of, functions that essentially belong to a different type. Ethnic, religious, and cultural communities also constitute a certain collective entity or a “people”160 centered upon a distinct leading function. Yoram Dinstein noted that peoplehood comprises two elements: an objective component, designated by the factual contingencies upon which the unity of the group depends; and a subjective component, constituted by a certain state of mind—the consciousness of belonging, and perhaps the will to be associated with the group.161 The state, too, has a leading function, which may be defined—admittedly simplistically—as establishing and maintaining a legal order within a defined territory.162 In terms of the doctrine of sphere sovereignty, the state ought to afford leeway within its territorial boundaries for non-state institutions to exercise their respective functions and should not allocate to itself the competence of performing such functions in competition with, or to the exclusion of, the appropriate (non-state) social institutions. In the vernacular of contemporary international law, sphere sovereignty demands of the state to respect and to guarantee the right to self-determination of all national or ethnic, religious, and linguistic communities under its political jurisdiction. That is exactly what the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities mandates in positive language when it proclaims: States shall take measures to create favorable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.163 It is submitted that the national-law limitation is to be conditioned by the international standards criterion: it presupposes municipal regulation that remains within the confines of international standards and does not place undue restrictions upon the sphere sovereignty of minorities. Sphere sovereignty in church-state relations thus recognizes the exclusive competence of religious institutions to determine their own organizational structures, to define their own normative dogma, to develop their own liturgical procedures, to embark upon faith-centered activities of their own choice, to

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freely spread and actively seek conversions to their faith, to establish and implement their own internal disciplinary imperatives—in every instance without state prescription or interference. The contemporary welfare state tends, in violation of the above directive, to extend the scope of political power to regulate the private lives of individuals and the internal sphere of activities of institutions other than the state. This also applies in many countries of the world to stateimposed regulation of religion—often under pretenses of securing religious freedom. In Poland, for example, the Law of May 17, 1989 on Guarantees of Freedom of Conscience and Belief contains a long list of competencies afforded by the state to citizens as components of the freedom of conscience and belief: the right to create churches and other religious unions and to belong or not to belong to them; to participate in religious functions and services, fulfill religious duties and observe religious holidays; to profess their religion or convictions; to bring up their children according to their religious convictions; not to profess their religion or belief; to maintain contact with other persons of their faith and to participate in international religious organizations; to utilize information sources in matters of religion; to produce, to purchase, and to make use of objects required for religious cult purposes and religious practices; to produce, purchase, and possess articles required for observing religious rites; to choose a clerical or monastic order; to establish lay organizations with a view to realizing objectives of a professed religion or conviction. Poland established, as part of the state administration, the Office for Denominational Affairs as a link, on the political front, between church and state. The creation of a church or other religious union in Poland is effected through registration of the institution with the Office of Denominational Affairs, supported by at least fifteen Polish citizens, and including in the application all kinds of information, including details of the “basic doctrinal assumptions” of the concerned faith and the applicant’s Statute (containing details—insisted upon by the state—of, inter alia, its aims and proposed activities, sources of financing and the like). Church officials are required by law to notify the appropriate organ of state about the creation, change of name, seat, borders, or merger, division, and annulment of a diocese or of a parish. The state wants to know about the appointment or removal from office of the executive organ of a church or other religious institution. The Head of the Office of Denominational Affairs may “express reservations” in regard to the appointment of a foreigner as the responsible church official entrusted with the duty of notifying the state of the above information and eventualities.164 In Croatia, the Law on the Legal Status of Religious Communities, 1978, prescribes severe penalties for acts such as the “abuse” of religion, the religious press, religious activity, or a religious community for “political goals”; collecting contributions for religious purposes outside places “intended for such purposes”

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unless approval is obtained from the municipal authority for internal affairs; organizing or engaging in social activities not directly related to the needs of the religious community for the administration of religious affairs and religious service, or for the needs of individual believers; conducting religious ceremonies or administering religious affairs, without state permission, beyond the limits of areas prescribed by the law for such purposes; or giving religious instruction to pupils at public schools during school hours.165 In the Russian Federation, too, sphere sovereignty of the churches is greatly undermined. The separation of church and state, which indeed constitutes a basic premise of its Law on Freedom of Conscience and Religious Associations, comes close to upholding the basic premises of sphere sovereignty. The Law thus proclaims the Russian Federation to be a secular state and speaks out against the establishment of any religion. It goes on to assert the principle of the separation of religious institutions from the state. The consequences of separation are spelled out in great detail and include: constraints of state action in matters of religion, for example the proscription of religious rituals or ceremonies in conjunction with state activities, and of the creation of religious associations within the confines of organs of state; as well as constraints upon religious associations in matters of government and politics. The censure pertaining to religious associations in matters of government and politics does not preclude the members of such associations from exercising their civic rights.166 A matter of some concern is the singling out of Orthodoxy for special mention in the Preamble in recognition of its “special contribution . . . to the history of Russia and to the establishment and development of Russia’s spirituality and culture.” The Preamble promises respect for certain other religions—mentioning by name Christianity, Islam, Buddhism, and Judaism—but only those “which constitute an inseparable part of the historical heritage of Russia’s peoples.” The implications of preambular provisions such as this one is not altogether clear. It means at least this much, that Orthodoxy is afforded a privileged status, and that the other religions deserving respect can make out a legitimate case that they ought not to fall foul to the repressive provisions of the Law, alluded to earlier—but then, of course, only if any of those religions can show that it constitutes “an inseparable part of the historical heritage of Russia’s people.” Separation errs, if at all, on the side of seeking to uphold too rigidly the divide between church and state, and between religion and law. Separation of church and state as applied in the United States is not sufficiently sensitive to the encaptic intertwinement of church and state, or the mutual symbiosis of religion and law. But measured against the assumptions of sphere sovereignty, the Russian law errs on the side of the other extreme. It expressly sanctions state interference in the internal affairs of religious associations—so much so, that one must con-

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clude that its commitment to secularism, non-establishment and separation, at least as far as separation is concerned, is merely rhetorical, if not downright dishonest. The very existence of a state-imposed law on religious institutions can in a sense be seen as political interference in the affairs of religion. Such laws can perhaps be justified, in cases of past repression and discrimination, to sanction religious freedom for the future. The Russian Law extends the range and substance of its provisions well beyond that objective. It is one thing for the state to provide that: “[The] . . . law regulates the legal relationships in the area of the rights of man and citizen to freedom of conscience and to freedom of creed” and “[the] law regulates . . . the legal status of religious associations.” It is quite another matter for a state legislature to take upon itself the competence to regulate “[t]he rights of man and citizen to freedom of conscience and to freedom of creed” and to submit those rights to sweeping limitations perceived by the state legislature, or by state officials, to be in the interests of “defending the foundations of the constitutional system, morality, health, or the rights and legal interests of man and citizen, or of securing the defence of the country and the security of the state.”167 Sphere sovereignty seems to be the stated policy when the state promises to “respect the internal regulations of religious organizations” and proclaims the entitlement of religious organizations to “act in accordance with their own internal regulations,” albeit that such manifestations of self-determination have been subordinated, in both instances, to the laws in force in the Russian Federation. Sphere sovereignty is seemingly the preferred model when religious associations are given sanction to be formed and to carry out their activities “in accordance with their own hierarchical and institutional structure,” and to choose, to appoint, and to replace their office bearers “in accordance with their own rules.” However, legislative schizophrenia sets in when the state demands of such associations—or at least the ones seeking registration to become religious organizations—to disclose in their names their confessional disposition, or to keep the state authorities informed annually of the continuation of their activities. In the Law, the state tells religious organizations, if they are to seek or to retain that status, what details they must include in the charter of their structural make-up: their name, address, type of religious organization, and creed; their aims and basic forms of activity; the procedure by which they were created and to be followed should they decide to dissolve; the structure of their organization, details of their administrative organs, the procedure by which those organs have been constituted, and their areas of competence; the sources of their income and of their property; and so on. In clear violation of the principle of sphere sovereignty, special provision is made in the Law for state officials to monitor “the observance of its own charter” by a religious organization.168

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Although the Law mandates the state “not to interfere in the activities of religious associations,” this obligation only holds true for “those activities [that] do not contradict this federal law.”169 The assurances of noninterference under that proviso become cold comfort if the Law then goes on to sanction profound and far-reaching interference in the domestic affairs of religious institutions. Such tendencies toward totalitarianism afford too much significance to political power; it provokes the erroneous belief that monopolizing the power of the sword is a sine qua non for the promotion and protection of cultural, ethnic, linguistic, or religious interests—which in turn might provoke the concerned minorities into becoming highly politicized in order to promote their own sectional interests. Sphere sovereignty does not mean that apolitical social entities within the body politic exist in isolation from one another or from the state structures. Religious communities, among others, may therefore also fall foul of the demands of peaceful coexistence. A critical question always surfaces when religious institutions, or their officials or members acting in the name of religion, violate the laws of the state: How ought the state to respond? The laws of most countries do criminalize unbecoming acts perpetrated under the auspices of religious claims, and the emphasis should remain on law enforcement in the individual cases that merit prosecution under existing proscriptions: fiscal fraud, extortion, and false advertising ought not to escape the power of the sword simply because such criminal conduct emanates from, or is legitimized by their perpetrators under the guise of, religion. The state must boldly accept the responsibility of regulating medical or psychological therapeutic procedures with a view to disqualifying persons not academically and professionally equipped to practice medicine or psychiatry, and should not avoid enforcing such administrative regulations where transgressions are conducted in the name of religion. Refusal of parents or guardians to submit the children in their care to medical treatment, or to afford assistance to persons in danger, calls for protective state intervention and cannot be excused simply because such omissions were prompted by religious scruples. Unbecoming religious practices are not always easy to identify. It is undoubtedly true that financial gain rather than spiritual concerns may inspire the missionary practices of those religious sects that promise a place in heaven to converts in exchange for their personal life savings and selfless (moneycollecting) services—but who is to say? Many cults only use the guise of religion to entice a prestige- or profit-rendering following into their fold—but how can one tell? Insidious means of proselytization (creating a relationship of dependency through the deprivation of food and sleep, or downright brainwashing) have become standard practice of several religious sects—but where exactly does one draw the line? Many self-professed “evangelists” shamelessly exploit

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the miseries of persons in distress, through poverty or illness, in order to secure their subservience—but what can one do? Here, legal proscription may not be the answer, lest juridical protection were to become the tool of political repression—which simply again underscores the truism that the law is not always a feasible instrument for the curtailment of social evils.170 The focus of the law in matters of religion should remain confined to acts that are clearly and widely recognized as decidedly criminal, or which in the public interest evidently require administrative regulation. Beyond those confines, legal proscription must be avoided. There, one ought to fully apply the public’s right to information and place one’s trust in the powerful virtue of persuasion as a means of cultivating the kinds of conviction that will counteract religious exploitation and that at the same time can withstand moral scrutiny. The current tendency in some European countries to entrust the state with the competence to identify and to outlaw so-called “dangerous sects” is exactly the kind of response to unbecoming religious practices that ought to be discouraged. In 1992, the European Parliament adopted a Recommendation emphasizing the undesirability, in view of the freedom of conscience and religion, of major legislation on religious sects and noting that “such legislation might well interfere with this fundamental right and harm traditional religions.”171 A subsequent Report on Cults in the European Union, prepared by Maria Berger of Austria, also follows a particularly cautious approach, calling on Member States “to take action only on the problematic activities of cults and in connection with their specific activities if they affect people’s physical and mental integrity or social and financial standing,” and not to confine such action to religious organizations per se. An approach, which thus emphasizes the (criminal) nature of the act rather than the actor, seems to be a commendable way to go. Religious communities, among others, are also subject to the limitations dictated by the notion of sphere sovereignty; they, too, must confine the relevance of their group identity to the domain dictated by their respective leading functions. Founding political alliances on religious distinction is as much a violation of sphere sovereignty as is state interference in the domestic enclave of the religious community. As we have seen, the sphere sovereignty of religious communities, among others, does not indemnify their actors against prosecution for criminal conduct or against administrative control (genuinely) in the public interest. By the same token, the political authorities ought to be exposed to critique and condemnation by religious institutions and personalities for governmental actions that contradict the dictates of religious norms. Sphere sovereignty denies the right of political authorities to perform the functions of religious institutions and to use the power of the sword for the purpose of enforcing religious scruples per

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se; but, due to the encaptic intertwinement of church and state, sphere sovereignty recognizes the competence of political authorities to impel religious institutions and communities to uphold the laws of the country. Religious communities, for their part, must not assume the powers of government or serve as the basis of politic group formations, but must apply the norms of their faith to all aspects of life, including the political component of human society. When the church speaks out against the institutions and conduct of government it does so with religious directives, and not political considerations, as its guide.

V. C ONC LU SION Political history reflects ample proof of strife and conflict that almost invariably surfaces when political power is based on religious affiliation, or the authority of government is relied upon to enforce religious scruples. All nations of the world today comprise a multireligious population, and there is a general tendency for governments that owe allegiance to a particular religious formation, or that support a dominant religion, to repress other religious groups. Territorial segregation of religious communities—like apartheid—is not a feasible alternative. Not only is total segregation never practicable, we also know that the separation of group-conscious peoples serves only to perpetuate, and in fact to aggravate, sectional strife and conflict. The rich diversity of cultural, ethnic, and religious varieties should not be seen as a weakness of any given society but as the nation’s strength. There is much to be said for a system where church and state are required— each within its own typical sphere of competencies—to mind their own business. This is indeed not a universally accepted principle, but nevertheless a commendable one. Its application is also not without difficulties, because church and state cannot be isolated from one another in watertight compartments. Both institutions function, after all, within the same territorial setting, their members/subordinates include the same individuals, and the agencies of their respective modalities of power—religion and law (respectively)—draw heavily upon one another. However, a pluralistic nation can only derive the full benefit of the richness of its diverse ethnic, cultural, and religious heritage by honoring the principle of self-determination of peoples in accordance with the notion of sphere sovereignty. Human society must be structured in a way that confines the function of the repositories of political power to minding the business of government, and leaving it up to religious institutions to care for the souls of their respective constituencies. Religious institutions must, on their part, care for the spiritual well-being of their flocks and should refrain from exploiting their influence in society for establishing a political power base.

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endnotes 1. Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/ Rev. 1. Sales No. E 91 XIV 1, 96 (1979). See also Felix Ermacora, The Protection of Minorities Before the United Nations, IV Recueil des Cours 246, 292 (1983); M.B. Shaw, The Definition of Minorities in International Law, 20 Hum. Rts. 13ff. (1990). 2. Christopher O. Quaye, Liberation Struggles in International Law 43 (Philadelphia: Temple University Press, 1991). 3. Constitution of the Republic of Bulgaria, Art. 13.2 (1991); see also the Law on Religion, Art. 3 (1949). 4. Constitution of the Republic of Bulgaria, Art. 13.3 (1991). 5. Ibid. Art. 37.1. 6. Ibid. Art. 37.2; see also the Law on Religion, Art. 5 (1949). Art. 4 of the Law on Religion further provides that “[n]o one . . . should . . . be free from executing his/ her duties, imposed by the laws of the country, because he/she belongs to some church or does not belong to any.” 7. Law on Religion, Art. 2 (1949). 8. Ibid. Arts. 15, 21, 22, 24. 9. Act No. 92/5/25/92 of the Director of Religious Affairs to the Council of Ministers. 10. Decision No. 255 of the Supreme Court of Bulgaria (Sofia, November 5, 1992). The decision was based on a legal technicality, namely that the decree of the Directorate of Religious Affairs was not an “individual administrative act” as defined in Art. 2 of the Law of Administrative Procedure, and was therefore not appealable in terms of Art. 37.2 of that Law. 11. Arts. 8.3 and 9.1 of the Law on Freedom of Conscience and Religious Associations (1997) (trans. by Lawrence Uzzell), reprinted in 12 Emory Int. L. Rev. 656– 714 (1998). 12. J.L. of 1989 No. 29, Item 155. 13. Ibid. Art. 30. 14. Ibid. Art. 31. 15. On the Freedom of Conscience and Religion as well as the Churches, Act No. IV of 1990, Art. 9.1(a). 16. Collection of Laws of the Czech and Slovak Federative Republic, Law No. 192/ 1992 (Law of the Slovak National Council); see also Law No. 308/1991 regulating the registration procedures. 17. Decision No. 8/1993(II.27) AB, 1.1 Eastern European Case Reporter of Constitutional Law 109 (1994). 18. Decision No. 4/1993(II.12) AB, ibid. 57, 62. 19. Ibid. The court in that case rejected an application contesting the constitutionality of the return of school buildings to churches from which those buildings had been taken during the communist re´gime. The argument founded on the separation of church and state (Art. 60.3 of the Hungarian Constitution) was rejected since the return of the buildings to the concerned church institutions did not deprive Hungarian citizens of the right to attend secular schools; a submission that the Act sanctioning

Self-Determination and the Right to Secession 283 the return of the school buildings (Act No. XXXII of 1991) required adoption by a twothirds majority, as required by Art. 60.4 of the Constitution in respect of any law concerning freedom of conscience and religion, was dismissed since the Act in question did not fall within the confines of the constitutional provision; and the court likewise rejected the applicant’s contention that the law in question conflicted with the Constitution and consequently amounted to a constitutional amendment. 20. See the Statistical Yearbook of the Slovak Republic 437–40 (1993). 21. Ibid. 22. Decision No. 255 of June 28, 1994 of the Council of Ministers. 23. Case No. 733/94 of November 30, 1994. 24. Christian Association of Jehovah’s Witnesses v. Bulgaria, KH/VS, Case No. 28626/95 (1997). 25. The Law on Freedom of Conscience and Religious Associations, above n. 11. 26. Ibid. Art. 27.3. 27. Ibid. 28. Ibid. Art. 27.3, read with Art. 3.4. 29. Ibid. Art. 27.3, read with Art. 5.3. 30. Ibid. Art. 27.3, read with Art. 5.4. 31. Ibid., Art. 27.3, read with Art. 13.5. The significance of this constraint is spelled out in Art. 13: if a religious organization has been established on alien soil, it will be designated as “foreign” (Art. 13.1). The foreign religious organization may establish a representative body in the Russian Federation, but that representative body will not be recognized as a religious association (the generic term used in the Law for all religious institutions) and can therefore not exercise any religious activities in the country (Art. 13.2), unless a Russian religious organization “attaches” to itself that representative body of the foreign religious organization (Art. 13.5). 32. Ibid. Art. 27.3, read with Art. 16.3. 33. Ibid. Art. 27.3, read with Art. 17.1. 34. Ibid. Art. 27.3, read with Art. 17.2. 35. Ibid. Art. 27.3, read with Art. 18.2. 36. Ibid. Art. 27.3, read with Art. 19. 37. Ibid. Art. 27.3, read with Art. 20.2. 38. In the case of Mashagatova Svetlana Pavlovna & Others. An English translation of the judgment was reprinted in 12 Emory Int. L. Rev. 715–38 (1998). 39. Law No. 221–1 of the Republic of Udmertia. 40. See Johan D. van der Vyver, Constitutional Options for Post-Apartheid South Africa, 40 Emory L. J. 745, 746–48 (1991). 41. See also Ferreira v. Levin N.O. & Others; Vryenhoek & Others v. Powell N.O. and Others, 1996 1 SA 984 (CC), 1996 1 BCLR 1 (CC), para. 51 (Ackermann, J., concurring). 42. See Van der Vyver, above n. 40, 785–7 and 789; Du Plessis & Others v. De Klerk & Another, 1996 3 SA 850 (CC), 1996 5 BCLR 658 (CC), para. 90 (Ackermann, J.). 43. Constitution of the Republic of South Africa, Act 108 of 1996. 44. Ibid. Preamble. 45. Ibid. ss. 36.1, 39.1(a); see also s. 7.1.

284 jo ha n va n de r vy ve r 46. Ibid. ch. 2. 47. Ibid. s. 31. 48. Ibid. s. 9.3. 49. Ibid. s. 9.4. Discrimination by persons other than the state must be prevented or prohibited by further legislation. 50. Art. 1 of the Charter of the United Nations, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N. 1043; see also ibid. Arts. 15 and 73. 51. GA Res. 2200 (XXI), 999 U.N.T.S. 171, 6 I.L.M. 368 (1967). Entered into force on March 23, 1976 in accordance with Art. 49 (ICCPR). 52. See generally A. Ermacora, above n. 1. 53. See Advisory Opinion of the International Court of Justice on Reparation for Injuries Suffered in the Service of the United Nations, I.C.J. 174, at 179–80 (1949). 54. For a fuller account of the right to self-determination, see Johan D. van der Vyver, Sovereignty and Human Rights in Constitutional and International Law, 5 Emory Int. L. Rev. 321, 395–416 (1991). 55. According to Antonio Cassese, “the first forceful proponent of the concept [of self-determination] at the international level was Lenin.” See Antonio Cassese, SelfDetermination of Peoples: A Legal Reappraisal 15 (Cambridge: Cambridge University Press, 1995). Earlier, Joseph Stalin had written a detailed pamphlet on selfdetermination entitled: Marxism and the National Question (1913). See Cassese id. 14. But, according to Cassese, Lenin’s Thesis on the Socialist Revolution and the Right of Nations to Self-Determination, published in March 1916, contained “the first compelling enunciation of the principle” of selfdetermination of peoples: id. 15. 56. The famous Fourteen Points Address delivered on January 8, 1918 to a joint session of Congress by President Woodrow Wilson was, according to Robert Friedlander, seen as “transforming self-determination into a universal right.” See Robert Friedlander, Self-Determination: A Legal-Political Inquiry, 1 Detroit Col. of L. Rev. 71, 73 (1975). President Wilson included, in the fifth of those points, an appeal for “[a] free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the population concerned must have equal weight with the equitable claims of government whose title is to be determined.” See R. S. Baker and W. E. Dodd (eds.), 1 Public Papers of Woodrow Wilson: War and Peace, 155–59 (New York/London: Harper, 1927). See also V. van Dyke, Human Rights, the United States, and World Community 86 (New York: Oxford University Press, 1970). 57. See Antonio Cassese, International Law in a Divided World, para. 80, 131–4 (Oxford: Clarendon Press, 1986); R. Emerson, Self-Determination, 66 Am. J. Int. L. 459, 463 (1971); R. Friedlander, above n. 56, 71. 58. Nathaniel Berman, Sovereignty in Abeyance: Self-Determination and International Law, 7 Wisconsin Int. L. J. 51, 86–7 (1988). 59. Ibid. 72. 60. Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects

Self-Determination and the Right to Secession 285 of the Aaland Islands Question, League of Nations Off. J. (Supp. 3), 5, 6 (1920). 61. Western Sahara (Advisory Opinion of May 22, 1975), [1975] I.C.J. 1, 31. 62. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion of June 21, 1971) [1971] I.C.J. 16, 31. 63. Berman, above n. 58, 54; see also Cassese, above n. 57, para. 43, 76; V. Van Dyke, above n. 56, 87; L. Berat, The Evolution of Self-Determination in International Law: South Africa and Namibia, and the Case of Walvis Bay, 4 Emory Int. L. Rev. 251, 283 (1990) (referring to self-determination and the equal right of peoples as “twin aspects of decolonization”); Emerson, above n. 57, 463; Oscar Schachter, The United Nations and Internal Conflict, in J.N. Moore (ed.), Law and Civil War in the Modern World 401, 406–7 (Baltimore: John University Hopkins Press, 1974); G. Tesfagiorgis, Self-Determination: Its Evolution and Practice by the United Nations and its Application in the Case of Eritrea, 6 Wisconsin Int. L. J., 78–80 (1987). 64. See, e.g., R. S. Bhalla, The Right to Self-Determination in International Law in William Twining (ed.), Issues of Self-Determination (Aberdeen: Aberdeen University Press, 1991). 65. The linkage within the confines of the right to self-determination of systems of institutionalized racism and colonialism or foreign domination may be traced to the United Nations General Assembly’s Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty of 1965, in which the United Nations demanded of all states to respect “the right to self-determination and independence of peoples and nations, to be freely exercised without any foreign pressure, and with absolute respect for human rights and fundamental freedoms,” and to this end proclaimed that “all States shall contribute to the complete elimination of racial discrimination and colonialism in all its forms and manifestations”: GA Res. 2131, UN Doc. A/6014, 20 UN GAOR Supp. (No. 14) 11, para. 6 (1965). 66. Above n. 51: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 67. GA Res. 2200A (XXI), UN Doc. A/6316, 21 UN GAOR Supp. (No. 16) 49 (1966), 993 UNTS. 3. Entered into force on January 3, 1976 in accordance with Art. 27 (ICESCR). 68. Antonio Cassese, The Self-Determination of Peoples, in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights 92, 96 (New York: Columbia University Press, 1981). Cassese added, somewhat obscurely, that this was not a right of minorities as such. 69. GA Res. 2625, UN Doc. A/8028, 25 GAOR Supp. (No. 28) 121 (1970). 70. Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law, para. 76, 135–6 (Alphen aan den Rijn, Netherlands: Sijthoff & Noordhoff, 1979). 71. Final Act of the Conference on Security and Co-operation in Europe, 14 I.L.M. 1292 (1975), Art. VIII. 72. UN Special Rapporteur, He´ctor Espiell, also made it clear that peoples under

286 jo ha n va n de r vy ve r colonial and alien domination were not the only ones with a right to self-determination: see He´ctor Espiell, The Right to Self-determination: Implementation and United Nations Resolutions, UN Doc. E/CN 4/Sub 2/405 para. 42 (1978). 73. See Art. 1.1 of the ICCPR, above n. 51; Art. 1.1 of the ICESCR, above n. 66; Art. 2 of the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514, UN Doc. A/4684, 15 GAOR Supp. (No. 16) 66 (1960). See also the first paragraph under the heading: “The Principle of Equal Rights and SelfDetermination of Peoples” in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations of 1970, above n. 69; para. 5 of the Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Res. 2131, UN Doc. A/6014, 20 GAOR. Supp. (No. 14) 11–12 (1965). 74. GA Res.47/136 of December 18, 1992, Art. 2.1. 75. Above n. 73. 76. Above n. 74. 77. Ibid. Arts. 1.1, 4.2, 2.3, 3, 4.1. 78. 34 I.L.M. 351 (1995). 79. Ibid. Art. 4.1. 80. Ibid. Art. 5.1. 81. Ibid. Art. 8. 82. Ibid. Art. 10.1; see also the European Charter for Regional Minority Languages (1992). 83. The Constitution of 1946 depicted those peoples subsequently as “nationalities” and “national minorities.” 84. Yugoslavia comprised the Socialist Republics of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia, each with its own regional constitution, and within Serbia and Slovenia, the “autonomous provinces” of Vojvodina and Kosovo. See Art. 2 of the Constitution of the Federal Republic of Yugoslavia (1974). 85. See Art. 246 of the Constitution of the Socialist Federal Republic of Yugoslavia (1974) (providing for the official use of the language of a nationality in areas populated by that nationality.) 86. Art. 1 of the Constitution of the Federal People’s Republic of Yugoslavia (1946) (the “1946 Constitution of Yugoslavia”). See also para. I of the Introductory Part (Basic Principles) of the Constitution of the Federal People’s Republic of Yugoslavia (1963) (the “1963 Constitution of Yugoslavia”) (depicting Yugoslavia as “a federal republic of free and equal peoples and nationalities” united “on the basis of the right to selfdetermination, including the right of secession”); and id. Art. 1, para. I of the Introductory Part (Basic Principles) of the Constitution of the Socialist Federal Republic of Yugoslavia (1974) (referring to “the right of every nation to self-determination” and “the brotherhood and unity of nations and nationalities.”) 87. Ibid. 88. See above n. 83. 89. Art. 18 of the 1946 Constitution of Yugoslavia. 90. Art. 247 of the Constitution of the Socialist Federal Republic of Yugoslavia

Self-Determination and the Right to Secession 287 (hereafter SFRY) (1974); see also Art. 43 of the 1963 Constitution of Yugoslavia; and further Art. 248 of the Constitution of the Socialist Federal Republic of Yugoslavia (1974) (affording nationalities the entitlement to realize their “sovereign rights” in the Communes). 91. Cf. SFRY Constitution (1974), Arts. 170, 171, and SFRY Constitution (1963), Arts. 41–43. 92. Art. 245 of the SFRY Constitution (1974); see also Art. 42 of the Constitution of the Socialist Federal Republic of Yugoslavia (1963). The latter Constitution actually created a Chamber of Nationalities as part of the federal state structure charged with “safeguarding the equity of the peoples of Yugoslavia and the rights of the Republics, as determined by the Constitution.” See Art. 165 of the Constitution of the Socialist Federal Republic of Yugoslavia (1963); see also ibid. Arts. 190–2. 93. Cf. SFRY Constitution (1974), Arts. 171, 245, 246; see also SFRY Constitution (1963). 94. Ibid. Art. 174. 95. The so-called independent churches, of which there are approximately 6,000 varieties in Southern Africa, are almost exclusively confined to the African community. It is important to note, though, that those African independent churches tend to be entirely apolitical. 96. Constitution of the Republic of South Africa, Act 200 of 1993. The interim constitution was superseded by the Constitution of the Republic of South Africa, Act 108 of 1996 (which entered into force on February 4, 1997). The Government of National Unity however remained in place until the elections of June 2, 1999. 97. Section 40.1, read with Schedule 2, of Act 200 of 1993. The principle of proportional power-sharing also applied to provincial legislatures (ibid. s. 127.1), and the National Council of Provinces (initially called the Senate) was composed on the basis of (proportional) regional (provincial) representation (ibid. s. 48.1). 98. Ibid. s. 88.2, s. 84.1. 99. See Julie Mertus, Remember Kosovo?, 8 (3–4) Uncaptive Minds (Fall–Winter 1995–96). 100. General Framework Agreement for Peace in Bosnia and Herzegovina, 35 I.L.M. 89 (1996). 101. Ibid. Annex 2; Annex 4, Art. I.3; Annex 4, Art. III.1. The Constitution follows the American example of circumscribing the competencies of the national authorities and entrusting the regions with all residual powers. 102. Ibid. Annex 4, Art. IV.1(a) and (b) and Art. IV.2. 103. Ibid. Annex 4, Art. Vpr., Art. V.4(b). 104. Ibid. Annex 4, Art. VI.1(a). 105. The first governing body of the Central Bank consisted of a Governor, appointed by the International Monetary Fund in consultation with the Presidency of Bosnia and Herzegovina, two members from the Federation of Bosnia and Herzegovina (one Bosnian and one Croat, who shared one vote), and one from Republika Srpska. See ibid. Annex 4, Art. VII.2. The Ombudsman is appointed by the Chairman-in-Office of the Organi-

288 jo h a n va n de r vy ve r zation for Security and Co-operation in Europe (OSCE), after consultation with the Parties (the Federation of Bosnia and Herzegovina, and Republika Srpska). See ibid. Annex 6, Art. IV.2. The fourteen members of the Human Rights Chamber consist of four appointed by the Federation of Bosnia and Herzegovina, two appointed by Republika Srpska, and eight appointed by the Council of Europe after consultation with the Parties and subject to the further proviso that those eight nominees may not be citizens of Bosnia and Herzegovina or of any neighboring state. See ibid. Annex 6, Arts. II, VII. The nine members of the Commission for Displaced Person consist of four appointed by the Federation of Bosnia and Herzegovina, two appointed by Republika Srpska, and three appointed by the President of the European Court of Human Rights, who also designates the Commission’s Chair. See ibid. Annex 7, Art. IX.1. The five members of the Commission to Preserve National Monuments consist of two nominated by the Federation of Bosnia and Herzegovina, one nominated by Republika Srpska, and two nominated by the Director-General of UNESCO, who also designates the Commission’s Chair. See ibid. Annex 8, Art. II.1. The five members of the Commission of on Public Corporations consist of two nominated by the Federation of Bosnia and Herzegovina, one nominated by Republika Srpska, and two nominated by the President of the European Bank for Reconstruction and Development. See ibid. Annex 9, Art. I.1. 106. The consociational model was popularized in South Africa by a Dutch political scientist, Arendt Lijphart, who spent some time in the country teaching at the University of Cape Town: see Arendt Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven: Yale University Press, 1977); see also T. Hanf, H. Weiland and G. Vierdrag, South Africa: The Prospect of Peaceful Change, 383–6 (London: Collins/Bloomington: Indiana University Press, 1981); L.J. Boulle, Constitutional Reform and the Apartheid State: Legitimacy, Constitutional Reform and Control in South Africa, 45–72, 216– 25 (New York: St. Martin’s Press, 1984); D. Basson and H. Viljoen, South African Constitutional Law, 201–15 (Cape Town: Juta & Co., 1988); Johan D. van der Vyver, The 1883 Constitution: An Exercise in Consociationalism?, 2 S. Afr. J. Hum. Rts. 341 (1986); Johan D van der Vyver, Constitutional Options for Post-Apartheid South Africa, above n. 40, 766–70. 107. In the elections of 1994, a few participating parties did represent sectional interests. The Freedom Front, which opted for an “Afrikaner homeland” and represented right-wing “white” interests, received 2.2% of the votes. The African Christian Democratic Party, which had little to do with Christianity, attracted 0.5% of the votes. The African Muslim Party was one of 12 smaller parties, which together could not muster more than 0.9% support. It should also be noted that the interim Constitution of 1993 actually made provision for the feasibility of an Afrikaner homeland to be considered at a later date (see Constitutional Principle XXXIV in Schedule 4 of Act 200 of 1993), but—as everyone knows—there simply is no part of South Africa which is exclusively occupied by Afrikaners.

Self-Determination and the Right to Secession 289 108. See Johan D. van der Vyver, Prospects for the Future Political Development in South Africa, in A. De Crespigny and R. Schrire (eds.), The Government and Politics of South Africa 245, 248–51 (Cape Town: Wetton/Johannesburg: Juta & Co, 1978). 109. See Van Dyke, above n. 56, 88; N. Berman, above n. 58, 87; R. Emerson, above n. 57, 464–5; Jochen A. Frowein, Self-Determination as a Limit to Obligations under International Law in Christian Tomuschat (ed.), Modern Law of Self-Determination 211, 216 (The Hague: Martinus Nijhoff Publishers, 1993). 110. Reference re: Secession of Quebec, 161 D.L.R. 385 (S.C.G.) (1998). 111. Ibid. para. 126. 112. See Anna Michalska, Rights of Peoples to Self-Determination in International Law in William Twining, above n. 64, 83. 113. See Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 Int. L. Q. 102, 109 (1976) (noting that peoples seeking secession must be located in a well-defined territorial area in which they form a majority.) 114. According to Hermann Mosler, “[s]tates are constituted by a people, living in a territory and organized by a government which exercises territorial and personal jurisdiction.” Herman Mosler, Subjects of International Law in R. Bernhardt (ed.), VII Encyclopedia of Public International Law 442, 449 (Amsterdam, North- Holland: Max Planck Institute for Comparative Public Law and International Law under the direction of Rudolf Bernhardt, 1984). Karl Doehring defined a state in international law as “an entity having exclusive jurisdiction with regard to its territory and personal jurisdiction in view of its nationals.” Karl Doehring, State in Bernhardt (ed.), id. 423. Herman Dooyeweerd defined the foundational function of a state in terms of “an internal monopolistic organization of the power of the sword over a particular cultural area within territorial boundaries.” Herman Dooyeweerd, III A New Critique of Theoretical Thought 414 (Ontario: Padeia Press, 1969). He further maintained that the leading or qualifying function of the state finds expression in a public legal relationship which unifies the government, the people and the territory constituting the political community into a politico-juridical whole: id. 433ff. 115. Yoram Dinstein defined “collective human rights” as those “afforded to human beings communally, that is to say, in conjunction with one another as a group—a people or a minority.” See Dinstein, above n. 113, 102–3. 116. See Art. 7 of the European Framework Convention for the Protection of National Minorities (1995), above n. 78. 117. See Van der Vyver, above n. 40, 825–8. 118. “Nation” is here used in the sense of subjects of a particular territorially defined political entity (the state) (in German, die Nation), in contradistinction to “a people,” which denotes a social entity united through a common history and certain ethnic, cultural, and linguistic ties (in German, das Volk) and who may constitute sections within a nation or whose members might indeed be scattered across national borders of any particular state. See Dinstein, above n. 113, 103ff. 119. See, e.g., Art. IV (territorial integrity) and Art. VIII (equal rights and selfdetermination of peoples) of the Helsinki Final Act, above n. 71. 120. Vienna Declaration and Programme of Action, June 25, 1993, UN Doc. A/ CONF. 157/23, 32 I.L.M. 1661, Art. 2 (1993).

290 jo ha n va n de r vy ve r 121. See Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 104–5 (London/ New York: Oxford University Press, 1963). See, e.g., Art. III of the Helsinki Final Act, above n. 71). Art III, para. 3 of the Charter of the Organization of African Unity (1963) 2 I.L.M. 766 (1963) committed Member States to adhere to the principle of “respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence”; and, in furtherance of this principle, a Resolution adopted by the Assembly of Heads of State and Government, held at Cairo in 1964 (reprinted in Ian Brownlie, African Boundaries: A Legal and Diplomatic Encyclopedia, 10–11 [London: C. Hurst/Berkley: University of California, 1979]), called on all Member States of the OAU “to respect the borders existing on their achievement of national independence.” 122. See Van der Vyver, above n. 54, 403–7; and in greater detail, James Crawford, The Creation of States in International Law, 235–6 (Katanga) and 265 (Biafra) (1979); John Dugard, Recognition and the United Nations, 86–90 (Katanga), 84–85 (Biafra) and 108–111 (Turkish Republic of Northern Cyprus) (Cambridge: Grotius Publications, 1987); Johan D. van der Vyver, Statehood in International Law, 5 Emory Int. L. Rev. 9, 35–37 (Katanga) and 42–4 (Turkish Republic of Northern Cyprus) (1991). 123. Van Dyke, above n. 56, 102. 124. Above n. 74, Art. 8.4. 125. Above n. 78, Art. 21. 126. Case Concerning the Frontier Dispute (Burkino Faso/Republic of Mali), [1986] ICJ 554, 565. 127. Ibid. 567. 128. Opinion No. 3 of the Badinter Arbitration Committee, reprinted in 3 EUR. J. INT’L L. 184–5 (1992). 129. Above n. 69. 130. The Declaration provides, under the heading, “The Principle of Equal Rights and Self-Determination of Peoples”: “The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right to self-determination by that people.” 131. Johan Heunis lost sight of this truism when arguing that the establishment of the South African (racially defined) homeland states (the TBVC-countries) occurred in conformity with the right to self-determination: Johan Heunis, United Nations Versus South Africa 328–300 (Johannesburg: Lex Patria, 1986). See also H. Booysen, Volkereg, ’n Inleiding, 67 (Cape Town: Wetton/Johannesburg: Juta & Co., 1980). For a critical comment on the Heunis-Booysen argument, see Van der Vyver, Statehood in International Law, above n. 122, 83, n. 354. 132. It should be specially noted that the USSR Constitution expressly guaranteed the right of each Republic to secede from the Union: see Art. 72 of the Konstitutsiya SSSR, an English version of which is reprinted in A. Blaustein and G. Flanz, VIII Constitutions of the Countries of the World (1991). 133. Lee Buchheit specified, as elements for legitimizing secession in any given

Self-Determination and the Right to Secession 291 case, that the section of a community seeking partition should possess a distinct group identity with reference to, for example, cultural, racial, linguistic, historical, or religious considerations; those making a separatist claim must be capable of an independent existence, including economic viability (but bearing in mind international aid programs that might help a newly established political entity over its teething problems); and the secession must serve to promote general international harmony, or at least not be disruptive of international harmony or disrupt it more than the status quo is likely to do: Lee Buchheit, Secession: The Legitimacy of SelfDetermination 228–38 (New Haven: Yale University Press, 1978). 134. See Cassese, above n. 55, 359–63. 135. Although the Constitution of Yugoslavia authorized secession of its constituent republics (see above n. 88), the disintegration of the federation did not occur in accordance with the procedures prescribed for the exercise of the constitutional right to secession, and furthermore included territorial gains through conquest and ethnic cleansing. The Arbitration Committee established under President Badinter to provide answers to questions pertinent to the demise of the Socialist Federal Republic of Yugoslavia posed by Lord Carrington (on November 20, 1991) noted that the independence of Slovenia was preceded by a referendum held in December 1990, that of Croatia by a referendum held in May 1991, and that of Macedonia by a referendum held in September 1991 (opting for a sovereign and independent Macedonia within an association of Yugoslavian states). In the case of Bosnia and Herzegovina, independence was decided upon by Parliament on October 14, 1991, but the validity of the independence resolution was contested by the Serbian community of that region. The Arbitration Committee noted that recourse to force has led to armed conflict between the different factions of the federation, and that the Socialist Federation of Yugoslavia was in a state of dissolution. Opinion No. 1 of the Badinter Arbitration Committee, reprinted in 3 Eur. J. Int’l L. 182–3. 136. K. Doehring, Das Selbstbestimmungsrecht der Vo¨lker als Grundsatz des Vo¨lkerrechts in 14 Berichte Der Deutschen Gesellschaft Fu¨ r Vo¨ lkerrecht 32, 49 (1974). 137. D. Murswiek, The Issue of a Right to Secession—Reconsidered in Christian Tomuschat, above n. 109, 33; and see also ibid. 37 (1993). 138. Ibid. 38, 27. 139. See Johan D. van der Vyver, Statehood in International Law in 5 Emory Int’l L. Rev. 9, 74–91 (1991). 140. Reference in re: Secession of Quebec, above n. 114. See ibid. para. 96, 149, 151; para. 93, 152. 141. Opinion No. 2 of the Badinter Arbitration Committee, reprinted in 3 Eur. J. Int’l L. 183–4 (1992). 142. See Johan D. van der Vyver, Legal Dimensions of Religious Human Rights: Constitutional Texts, in Johan D. van der Vyver and John Witte, Jr. (eds.), Religious Human Rights in Global Perspective: Legal Perspectives ix, xx–xliv (The Hague: Martinus Nijhoff Publishers, 1996). 143. G. Groen Van Prinsterer, Ter Nagedachteins Van Stahl, 3031 (Amsterdam, 1862).

292 jo han va n de r vy ve r 144. H. Dooyerweerd, above, n. 114, 663; see also Herman Dooyerweerd, De Strijd om het Souvereiniteitsbegrip in de Moderne Rechts-en Staatsleer 78 (Amsterdam: HJ Paris, 1950). 145. John Althusius, 1.19 Politica Methodiae Digesta 7 (1614): “Propriae Rechts-en leges sunt cujusque consociationis peculiares, quibus illa regitur. Atque hae in singulis speciebus consociationis iliae atque diversae sunt, prout natura cujusque postulat.” 146. Friedrich J. Stahl, Der Protestantismus als Politisches Prinzip 16, 18 (Berlin, 1853). 147. Friedrich J. Stahl, Die Kirchenverfassung Nach Lehre und Recht der Protestanten 72 (1862) (“eine Institution ganz anderer Art”). 148. Ibid. 13 (“. . . das Kirchenregiment . . . vom weltlichen Regiment strenge zu sondern [ist]”); see also ibid. 8, 47, and 184. 149. See generally Dooyerweerd, above n. 114, 169–70; Dooyerweerd, Het Souvereiniteitsbegrip, above n. 144, 51; see also Herman Dooyerweerd, Verkenningen in de Wijsbegeerte, de Sociologie en de Rechtsgeschiedenis 80 (1962); J. Dengerink, Critisch-Historisch Onderzoek Naar de Sociologische Ontwikkeling der Beginsel der “Souvereiniteit in Eigen Kring” in de 19e en 20e EEUW, 11 (Kampen: JH Kok, 1948); G. Spykman, Sphere Sovereignty in Calvin and Calvinist Tradition in D. Holwerda (ed.), Exploring the Tradition of John Calvin 163 (1976); Johan D. van der Vyver, Die Juridiese Funksie van Staat en Kerk: ‘N Kritiese Analise van die Beginsel van Soewereiniteit in eie Kring, 76–8, 91–9 (Durban: Butterworths, 1972); Van der Vyver, above n. 58, 342–55; Van der Vyver, above n. 142, xli–xliv. 150. Art. 15.3 of the Constitution of the Republic of Singapore (1963). 151. Art. 44.2.5. of the Constitution of Ireland (1937). 152. Art. 7 of the Constitution of Italy (1948). 153. Art. 29.3 of the Constitution of Romania (1991). 154. Art. 16.2 of the Charter of Fundamental Rights and Freedoms of the Czech Republic (1992). 155. Art. 25.3 of the Constitution of the Republic of Poland (1997). 156. Dooyerweerd, Verkenningen, above n. 149, 102–3 (defining “encapsis” as “an intertwinement of intrinsically different structures”). 157. R. Minnerath, The Doctrine of the Catholic Church in Proceedings of the Third World Conference on Religious Liberty 49, 51 (IRLA, 1989). 158. Ibid. 159. Dooyerweerd, above n. 114, 2212. 160. See above n. 118. 161. Dinstein, above n. 113, 103. 162. See above n. 113. 163. Above n. 74, Art. 4.2; see also Art. 5.1 of the Framework Convention for the Protection of National Minorities (1995), above n. 78. 164. Above n. 12. See ibid. Arts. 2, 15(1), 30, 31, 32.1(a), 32.2, 14.1, 14.2, 14.4. 165. Official Gazette No. 14/78. Art., 23.2; Art. 24.1, read with Art. 14; Arts. 24.2, 15, 16, 24.3, 24.4, read with Art. 17.

Self-Determination and the Right to Secession 293 166. Above n. 11. See Arts. 4 (especially 4.2, 4.4, and 4.6) and 6.3. 167. Ibid. Arts. 1 [emphasis added], 2.2., 3.2. 168. Ibid. Arts. 15.2, 15.1, 4.5, 8.8, 8.9, 10.2, 25.2; see also the details specified in Art. 11.5 and Art. 11.7 to be submitted when the registration, respectively, of a local religious organization, and of a centralized religious organization, is applied for. 169. Ibid. Art. 4.2. 170. See Johan D. van der Vyver, Law and Morality, in Ellison Kahn (ed.), Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner 350, 368–9 (Cape Town: Wetton/Johannesburg: Juta & Co., 1983); Van der Vyver, The Function of Legislation as an Instrument of Social Reform, 93 S. Afr. L. J. 56, 62–7 (1976); Van der Vyver, The State, the Individual and Society, 94 S. Afr. L. J. 291, 303–5 (1977). 171. Recommendation 1178 of February 5, 1992 on Sects and New Religious Movements, para. 5 (1992), in Council of Europe Parliamentary Assembly, Texts Adopted by the Assembly (1991–93). The Recommendation places emphasis on education and legislation, where this does not already exist, to afford corporate status to all sects and new religions “which have been registered.” For further discussion on this issue, see Carolyn Wah, “European Parliamentary Enquete Commissions: Justification of a Two-Tiered System of Religious Freedom” in chapter 11 of this volume.

part 3 Case Studies A. Eastern and Central Europe

Chapter 8 s t at e p ol i t i c s a nd r e l i g i o u s p l u r a l i s m i n r u ssi a a nd u k r a i n e : a c om p a r a t i v e p e r s p e c t i v e Serhii Plokhy

I. INTRODU CTION The new law of the Russian Federation on Freedom of Conscience and Religious Associations, enacted on October 1, 1997, has effectively reestablished state control over religious life in Russia and is considered an obvious setback to democracy as compared with Soviet legislation of 1990.1 It is difficult, if not impossible, to understand why the religious legislation of the new Russia appears to be less democratic than the respective laws of the Soviet Union without taking into account the evolution of church-state relations in the other postSoviet countries. Ukraine, the second largest republic of the former Soviet Union, presents an interesting case for comparison with Russia as regards the development of church-state relations and religious pluralism. At the time of the dissolution of the Soviet Union, the two republics were not very far apart in terms of the political culture of their ruling elites, and both shared a strong tradition of government control over religious life. Nevertheless, after the fall of communism, they chose somewhat different ways of dealing with the religious organizations on their respective territories. Russia adopted a law that established special relations between the state and the dominant Russian Orthodox Church while discriminating against the numerous “new” religions. Ukraine’s govern-

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ment, after some hesitation, refused to establish special relationships with any of the country’s traditional churches and, although reluctantly, has been supporting religious pluralism on its territory.2 This article examines the differences in the state of religious pluralism in Russia and Ukraine by analyzing the different relationship patterns between state structures and religious organizations in the two countries. It takes as its point of departure the assumption that government policy toward religious minorities in the postcommunist countries is influenced mainly by the kind of relationship that emerges between the state authorities on the one hand and the dominant religious groups on the other. It also employs the hypothesis that the character of government policy toward the dominant churches is influenced by the character and intensity of the nation-building process that is currently under way in the Newly Independent States (NIS). In almost all postcommunist countries, ruling elites have turned to nationalist symbols and to those religious organizations that are closely linked with national traditions in order to legitimize their regimes and broaden their power bases. The Serbian example is the most obvious one, but neither Russia nor Ukraine has completely avoided this pattern. The difference between Russia and Ukraine in that regard comes to the fore when one analyzes the attitudes of their respective governments to nationalism in general and religious nationalism in particular. If the Russian elites were able to forge a lasting alliance with the leadership of the Russian Orthodox Church, the Ukrainian officials found themselves in a significantly different position. Not one but two religious communities—the Ukrainian Orthodox and Ukrainian Greek Catholic churches—sought recognition from the Ukrainian government as truly national churches. The split of the Orthodox community into three groups—two under the jurisdiction of the local religious authorities, and one under the jurisdiction of Moscow—left the ruling elite with little choice but to reject the “Russian model” of church-state relations and look for other alternatives.

II . THE POLITIC S OF R ELIGION IN RUSSIA After the demise of the USSR and the rise of an independent Russian state, two competitive trends emerged in Russian religious policy. The first is represented by a younger generation of politicians who are pro-Western in orientation, want to build a free and democratic Russia, and advocate principles of religious pluralism and equal treatment of all religious groups in accordance with “international standards.” The second trend is represented by nationalistically oriented politicians who include representatives of the old nomenklatura and members of the new Communist Party. That group is anti-Western in orientation, wants to build the new Russian state first and foremost for Russians, and insists on the granting of special rights to the Russian Orthodox Church. The

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spread of Western, mostly Protestant-based, religious associations in post-Soviet Russia is viewed by the latter group as a civilizational threat, an attempt to buy out the Russian soul, and the most visible symbol of Western aggression against the humiliated Russian state that lost the Cold War. In 1993 the Russian parliament, which by that time had been effectively transformed into a stronghold of nationalistically oriented politicians, passed a law that if enacted would have granted special status to the Russian Orthodox Church and curbed the proselytizing activities of Western religious groups in the country. At that time the pro-Western politicians around President Boris Yeltsin were strong enough to ensure that he did not approve the law. But in 1997, under different political circumstances, Boris Yeltsin was forced to sign another law that was very similar to the 1993 legislation. The new law has effectively divided religious organizations on Russian soil into two major groups. It granted special status to the Russian traditional religions headed by the Russian Orthodox Church and discriminated against the “new arrivals,” especially those groups that have been registered in Russia for fewer than fifteen years. They are prohibited from opening religious schools, becoming involved in publishing activities or importing religious literature into the country.3 The new law in fact attempts to undo the changes that were introduced into the realm of church-state relations by Mikhail Gorbachev’s perestroika. At that time, the tacit protection that had been granted earlier by the state to the Russian Orthodox Church was all but withdrawn, and the Moscow Patriarchate was left to compete on its own with its numerous rivals.4 The Patriarchate struck back in 1997, when its leadership joined the political campaign that forced President Yeltsin to sign the law. The introduction of the new law initiated a campaign of legal and administrative discrimination against non-Orthodox churches and Orthodox rivals of the Moscow Patriarchate, and it is the Russian Orthodox bishops and clergy who have been trying to influence local authorities in the vast regions of Russia to implement the new law in such a way as to make life most difficult for the minority churches and religious groups.5 Since the adoption of the new law on freedom of conscience, the Moscow Patriarchate has continued its campaign of intimidation against other churches and Christian missions from the West. Metropolitan Kirill (Gundiaev) and other hierarchs of the Patriarchate have repeatedly warned the public about the dangerous character of the sects. The Patriarchate never clearly defined the term “sectarians,” which is in fact is used by its spokespersons to include any religious organization except the Russian Orthodox Church itself. But even for members of the church there is no guarantee that they will not be labeled “sectarians” if they disagree with the official line of the Patriarchate.6 The close cooperation between the leading hierarchs of the Moscow Patriarchate and the state authorities in Moscow is mirrored by similar relationships on the local level. The provincial authorities often go out of their way to assist

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the hierarchs and priests of the Russian Orthodox Church in fighting against their competitors. The influence of Russian Orthodox bishops may be discerned behind many actions of local authorities against Western missions and Protestant organizations in general.7 The Moscow Patriarchate’s fight against its Orthodox rivals is also conducted with the help of the state authorities. Such cooperation demonstrates that the state’s real objective in the realm of churchstate relations is not so much to support Orthodoxy in general as to support the Moscow Patriarchate as its main political ally. In the opinion of Russian attorney Galina Krylova, one of the main purposes of the new law “On Freedom of Conscience and Religious Associations” was to “ . . . solve the problem of property ownership by religious organizations of other confessions, as well as by certain Orthodox communities which presently have the status of independent legal owners of their own property.”8 During the last ten years the Russian Orthodox Church has gone a long way in its relations with the state. In 1987 it was still involved in bargaining with the state authorities and traded its service in the form of support for the state’s national and international policies for the government’s concessions to the church within the country. Following the 1988 Millennium celebrations, it continued these services to the state in the form of enthusiastic support for perestroika, and later its ardent opposition to the disintegration of the multinational Soviet Union. At the time of the August coup of 1991, the church leadership kept a low profile, but in 1993 it emerged as an intermediary in the struggle for power between the Russian president and the Russian parliament. By 1997, the Moscow Patriarchate considered itself strong enough to manifest its open opposition to the highest office in the country, and in fact won a decisive victory, forcing the president to sign new religious legislation. Within ten short years, the Russian Orthodox Church had transformed itself from a state-controlled structure headed by KGB informers and appointees into a powerful political actor capable of dictating its will to the Russian president.9 That dramatic change in the pattern of the church-state relations in Russia was caused not so much by the actions of the church itself as by a change of political climate in the country as a whole. Even today, the Moscow Patriarchate remains a relatively weak institution when it comes to its organizational structure or the number of its faithful.10 Most of its parishes are still outside of Russia in such countries as Ukraine and Belarus.11 Despite that organizational weakness, the role played by the Moscow Patriarchate in Russian public life has grown steadily within the last ten years. Russian Orthodoxy as an amalgam of nationalism and religion is in great demand by the authorities who are desperate to fill the ideological vacuum left after the collapse of communism and to acquire legitimacy for their corrupt rule. Whether it is the opening of a new office building or the signing of the “union treaty” with Belarus, a representative

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of the Russian Orthodox Church, a parish priest or Patriarch Alexii II himself is unfailingly invited to attend the event and provide much-needed legitimacy for the undertaking. The Russian authorities from top to bottom also need the church to boost their own ratings. As a poll conducted in 1993 shows, more Russians (51%) trust their churches than their government (29%) or their president (33%).12 Not surprisingly, therefore, the two leading candidates in the 1996 Russian presidential elections, the incumbent President Boris Yeltsin and communist candidate Gennadii Ziuganov, both made use of religious phraseology and rhetoric in their electoral campaigns. The continuing usage of Orthodox rhetoric by communist and reform-minded politicians alike demonstrates better than anything else the importance of Orthodox symbolism in Russian political life.13 On the symbolic level, Russian Orthodoxy acts as an embodiment of both the traditional and the new Russia, a unique “bridge” between the prerevolutionary Russian Empire and the post-Soviet Russian Federation. The most visible symbol of this Orthodox bridge between the Russia’s past and its future is the construction by Moscow mayor and presidential hopeful Yurii Luzhkov of the Cathedral of Christ the Saviour, which was destroyed on Stalin’s orders in 1931. The Cathedral was built on the initiative of Tsar Alexander I as a symbol of gratitude to divine forces for the Russian victory over Napoleon in 1812. It took forty-four years to complete the construction. The murals and sculptures of the cathedral created in the times of Nicholas I brought together images of biblical and Russian history. The cathedral was built in a newly “rediscovered” Russian architectural style and became one of the most prominent symbols of the idea known under the name of the theory of Official Nationality. That theory proclaimed the unity of Orthodoxy, autocracy, and nationality in Russia.14 Back in the nineteenth century, the cathedral was built primarily with the help of the public funds, and that is how its reconstruction is being financed today. In this instance, it is not the national but the Moscow city government that is playing the major role in the project, and money is not taken directly from public funds but is being coerced by Luzhkov from state and private sector enterprises in return for special treatment of those businesses that cooperate with the mayor’s office. The federal government is also offering its support for such business with such measures as issuing tax concessions and granting rights for oil and gas exports, as well as liquor and tobacco imports. There is little doubt that the Russian Orthodox Church is the only religious organization that could receive such government support for the reconstruction of its place of worship. The reason for government participation in the reconstruction of the Orthodox cathedral is reflected in the words of President Yeltsin, who made the following comment on the issue: “It is a Russian national place and it must be

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resurrected.” Thus the politics of Russian nationalism appear to be the most important factor behind official support for the reconstruction of the Cathedral of Christ the Saviour in Moscow.15 Another example of the important role played by the Russian Orthodoxy in the symbolic politics of Russian nationalism is the reburial of the remains of the last Russian tsar, Nicholas II, and members of his family. Unlike President Yeltsin who attended reburial of the royal remains in St. Petersburg on July 17, 1998, Patriarch Aleksii II all but ignored the event. The Russian Orthodox Church seized an opportunity to demonstrate its alleged independence from the politics of the state. The tsar’s bones were first discovered in the late 1970s near the city of Yekaterinburg (in Soviet times, Sverdlovsk) in the Urals, and preparations for the reburial began immediately after the dissolution of the USSR and the creation of the new Russian state. From the very beginning, the Moscow Patriarchate was an important participant in the negotiations conducted between the representatives of the central and local governments. Its official position has been defined by an attempt to link the issue of the reburial of the tsar’s family with its prospective canonization, which has resulted in endless scientific examinations of the bones and contributed significantly to numerous delays in the reburial of the remains.16 The Russian Orthodox Church wants to prove the authenticity of the bones “beyond reasonable doubt” in its attempt to establish itself as the sole bearer of the Russian national tradition. That role is also claimed by the Moscow Patriarchate’s long-standing rival, the Russian Orthodox Church Abroad. The latter has been the church of the White e´migre´s and their descendants, who have never recognized the legitimacy of Soviet rule in Russia and have repeatedly condemned the Moscow Patriarchate for its collaboration with the communist authorities. The Russian Orthodox Church Abroad has its own remains of the tsar’s family, which were recovered by the White Army during the Revolution and taken abroad to be encased in the wall of the Church of Job the Longsufferer in Brussels.17 The authenticity of the Brussels bones was never tested by DNA analysis, but the Church Abroad canonized the tsar and his family in 1981, and now the Moscow Patriarchate faces the difficult and delicate task of taking over from its rival the role of protector of the Russian national tradition. There is little doubt that the last ten years have witnessed the return of Russian Orthodoxy as an important element of Russian national identity. This return occurred at a time when the whole society had embarked on the project of “rediscovering” its nationality, and President Yeltsin had entrusted the Russian intellectual establishment with the task of formulating a new “Russian idea.” What kind of idea this will be, and what will be the role of the Orthodoxy in its formation? There is ample evidence that the new Russian idea will include both national and religious components, and in that respect will continue the tradition established by the nineteenth-century formula of Official Nationality.

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The reconstruction of the Cathedral of Christ the Saviour with the political and financial support of the Russian and Moscow governments makes it apparent that at least two of the three components of the Official Nationality formula, namely Orthodoxy and nationality, are strongly connected in contemporary Russia. The role of the Moscow Patriarchate in the preparations for the reburial of the last Russian tsar demonstrates that in the new Russia the recovery of historical memory of autocracy, the third component of the Official Nationality formula, is also impossible without the participation of the Russian Orthodox Church. In contemporary Russia, the activities of the Russian Orthodox Church reflect that country’s national and imperial tradition. The church is often viewed as a vehicle of Russian influence in the “near abroad” and as a legitimizing factor in any international initiative aimed at the reconstruction of the former empire. Despite some significant losses suffered by the Moscow Patriarchate since the dissolution of the USSR, the Holy Synod (the ruling body of the church) managed to preserve its “all-union” character. From that perspective, the Moscow Patriarch appears to be a much more successful player than the Russian President, who, in the eyes of Russian nationalists, while getting rid of Gorbachev, lost not only Baltic and Central Asian provinces of the USSR, but also its Slavic republics of Ukraine and Belarus. The Moscow Patriarchate, on the other hand, has strengthened its position in Belarus and, even though it lost numerous parishes to its Greek Catholic and Orthodox rivals in Ukraine, succeeded in preserving its status there as the largest religious organization in Ukraine.18 In Belarus, the Moscow Patriarchate has never allowed the appearance of a strong autocephalous or Uniate (Greek Catholic) movement. It has also enlisted the strong support of the authorities, especially Belarusian President Aliaksandr Lukashenka, in its struggle with the Roman Catholic Church in the western regions of the country. The head of the Belarusian exarchate of the Russian Orthodox Church, Metropolitan Filaret (Vakhromeev), an ethnic Russian who does not speak or write Belarusian, has never challenged the authority of the Moscow Patriarchate in Belarus, as did his counterpart in Ukraine, Metropolitan Filaret (Denysenko). He also gave his full support to the creation of the Russian-Belarusian Union, which was proclaimed by the presidents of Belarus and Russia in the spring of 1996. The prominent presence of the Moscow Patriarch, Aleksii II, at the signing ceremony of the “unification” treaty between Russia and Belarus in April 1996, demonstrated the strong support granted by the Russian Orthodox Church to the reunification campaign. The key figures in the Holy Synod of the Moscow Patriarchate apparently share Alexander Solzhenitsyn’s vision of a single East Slavic Orthodox state to be formed on the ruins of the disintegrated Soviet Union and composed of Russia, Ukraine, and Belarus. The idea was first ex-

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pressed by Alexander Solzhenitsyn in 1990, on the eve of the dissolution of the USSR, and has its Orthodox parallel in the nostalgic vision of one indivisible Holy Rus’, which in the nineteenth century included Russia, Little Russia, (Ukraine) and White Russia (Belarus.)19 There are numerous signs that Russian Orthodoxy has been gradually replacing Marxism-Leninism as an ideological factor in the formulation and legitimization of the Russian foreign policy in the “near abroad.” This has been the case as regards Russian policy not only toward the Slavic and predominantly Orthodox Belarus and Ukraine, but also toward the other former Soviet republics. The 1997 conflict between the Moscow and Constantinople Patriarchates over the Orthodox communities in Estonia is one of the best examples of the unwillingness of the Russian Orthodox Church to relinquish its control over Orthodox communities in the former USSR.20 The decade that has passed since the liberalization of government policy on religion by Mikhail Gorbachev has brought significant changes in the status of the Russian Orthodox Church vis-a`-vis the government. If Gorbachev’s reconciliation with the church on the eve of its Millennium in 1998 was an expression of good will on the part of a government that wanted to improve its humanrights record abroad, Boris Yeltsin’s enactment of the 1997 law was the result of a campaign of intimidation conducted by the Russian Orthodox Church that significantly damaged the democratic image of the Russian state in the West.

II I. THE POLITIC S OF RELIGION IN UKRAINE In Ukraine, much of the current discussion concerning the future of the independent state has centered on the issue of nation-building. Two models of the Ukrainian state, national (the state of the “Ukrainian people”) and multiethnic (the state of “the people of Ukraine,”) usually serve as starting points for scholarly discussion.21 It is quite obvious that the future of church-state relations in Ukraine will depend heavily on the choice made by the newly independent state in its nationbuilding strategy. It is equally true that the religious policy of the government and the response to it on the part of organized religion will influence the process of nation-building. In the area of church-state relations, current Ukrainian governments face the dilemma of either forging an alliance with the traditional (national) churches or allowing “all flowers to bloom,” with consequent equal treatment of all denominations, including those closely linked to neighboring states (especially Russia and Poland). In Ukraine, the discussion on which road to take—whether to Ukrainize the traditional churches (Orthodox and Greek Catholic) and make them into state bodies or to abandon all hope of exploiting their nation-building potential and throw open the doors to Protestantism and its attendant spirit of capitalism—

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was begun more than a century ago by Mykhailo Drahomanov.22 That discussion is by no means over, but its subject has already entered current political debate. In 1991 the Supreme Council of Ukraine adopted a law on religious associations that resembled the old Soviet legislation in proclaiming the complete separation of church and state, but was much more democratic than the laws previously in force. In many respects, this law could be termed a declaration of intent on the part of the state, while the historical tradition inherited by society and prevailing political circumstances impelled state functionaries toward active intervention in church affairs.23 By August 1991, when Ukraine declared its independence, the Ukrainian churches had become deeply involved in political conflict. Each of them had its political sponsors, who in turn enjoyed church support in election campaigns, political activity, etc. The proclamation of Ukraine’s independence and the election of Leonid Kravchuk as the first president of Ukraine in December 1991 established the presidential administration as the main generator of ideas in realm of churchstate relations. The government found a devoted supporter and executor of its plans in the head of the Ukrainian Orthodox Church (UOC), Metropolitan Filaret (Denysenko), who had held the Kiev metropolitanate since 1966 and was well known for his anti-Uniate and anti-autocephalist views. Moscow managed, however, to exploit tensions within the church in Ukraine, particularly the Ukrainian episcopate’s dissatisfaction with Filaret, in order to remove him from the church leadership in the spring of 1992. In June of that year, with the support of the government, Filaret became one of the leaders of the Ukrainian Autocephalous Orthodox Church, which he had once persecuted, and which was now renamed the Ukrainian Orthodox Church of the Kiev Patriarchate (UOC-KP). This new church enjoyed substantial support from the government during the administration of President Leonid Kravchuk.24 Ukraine in fact embarked on a project similar to the one under way in Russia—the creation of a quasi-state national church that would become an important element in the Ukrainian nation-building process. The establishment of such a national church, which the Council for Religious Affairs was in fact bringing about, resulted in the government defense of the UOC-KP not only against its Orthodox competitors, but against those of other denominations as well. In its claim to be the only national church of Ukraine the UOC-KP faced a serious competition on the part of the Ukrainian Greek Catholic Church, destroyed by Stalin in 1946–49 but restored in Western Ukraine in 1988–90 as part of the national revival in that part of Ukraine. The state generally tended to ignore the existence of that church and was very reluctant to grant it any significant role in the nation-building project during the Kravchuk administration. One of the signs of this was the lack of Ukrainian diplomatic representation at the Vatican. Even the Directory (a short-lived

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Ukrainian government in 1919–20) had proceeded to establish its mission at the Holy See. Another symptom of government’s double standard in the treatment of the traditional churches of Ukraine was its complete passivity in the matter of winning recognition of a Greek Catholic Patriarchate. Even though several prominent representatives of the Ukrainian diaspora made personal appeals to President Kravchuk, arguing that the establishment of a patriarchate would serve the purposes of state policy concerning the need for an independent church in a sovereign state, the government remained entirely passive on the question. This passivity is particularly striking when compared with the government’s active support for Orthodox autocephaly and the Orthodox Kiev Patriarchate. In a certain sense, the religious policy of President Kravchuk even favored Roman Catholics over Greek Catholics, according in that respect with the Vatican’s official line. Thus one national church, the Greek Catholic, was denied support, while another, the UOC-KP, was generously showered with it.25 The roots of that policy should be sought in the close alliance between the authorities and the Orthodox hierarchy, especially Metropolitan Filaret. He (not without reason) regarded the Greek Catholics as his competitors, in the traditional suspicion with which Uniates had been treated in the Russian Empire and the Soviet Union, and in the official policy of the creation of a state church that was to be exclusively Orthodox. The election of Leonid Kuchma as the new president of Ukraine in the summer of 1994 had a significant impact on church-state relations in Ukraine. The “church question” came to Leonid Kuchma’s attention during his first days in office. It is worth noting that the presidential decree on the liquidation of the Committee for Religious Affairs—the symbol of active state intervention in the affairs of religious associations—was signed on the same day (July 26, 1994) as the decree appointing the head of the presidential administration. The committee was replaced by a ministry with an awkward designation—the Ministry for Nationalities, Migration and Cults.26 The date of the signing of the decree and the poorly conceived name of the new ministry (an observer, commenting on the word “cults,” noted that at least “superstitions” had not been used instead) testify to the hastiness of the decision and the new administration’s desire to dissociate itself from the policy introduced by its predecessor.27 The new government almost immediately demonstrated its support for the Ukrainian Orthodox Church under the jurisdiction of the Moscow Patriarchate (UOC-MP). The change in religious policy was predetermined by the main provisions of the presidential administration’s broader policy on questions of nationality, culture, and language. That policy was governed by the basic postulates of Leonid Kuchma’s electoral program and the circumstances of his struggle for the presidency with the incumbent, Leonid Kravchuk. The organizers of the Kravchuk campaign, seeking to distract voter attention from eco-

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nomic problems and government inaction on economic reform, staked their fortunes on the national question. During the campaign, Kravchuk was represented as the sole guarantor of Ukrainian independence, which would be surrendered to Moscow in the event of Kuchma’s coming to power. The accession of Leonid Kuchma, the dissolution of the pro-Filaret Committee for Religious Affairs, and the administration’s new course in the area of church-state relations greatly worsened relations between the state and the UOC-KP, creating a strained and explosive situation in that area. The incident that sparked the transformation of the “cold war” into a “hot” one was the dispute between the government and the church over the place of interment of the patriarch of the UOC-KP, Volodymyr (Romaniuk), on July 18, 1995. In fact, the incident was provoked by the ongoing rivalry between the UOC-KP and the UOC-MP for control over the sacred sites of Kiev, the most eminent of which was St. Sophia Cathedral, which remained under state ownership.28 The struggle between the different Orthodox jurisdictions was waged not so much for buildings as for sacred places—symbols of Kievan Christianity, that is, for the spiritual heritage of Kiev and, accordingly, for the legitimacy of this or that church. Among the potential claimants to Sophia, in addition to the Orthodox churches, one should mention the Greek Catholic Church, whose late patriarch, Cardinal Yosyf Slipyi, had asked in his will to be buried at the cathedral. In the autumn of 1993, members of a new denomination, the White Brotherhood, headed by their living god, Maria Devi Khrystos (Maryna Tsvyhun), attempted to seize St. Sophia. But the main battle for that holy place took place between the Kiev and Moscow Patriarchates. On July 18, 1995, a day that came to be known as Black Tuesday, government units dispersed the funeral procession of supporters of the Kievan Patriarchate who had attempted to bury their late patriarch, Volodymyr (Romaniuk), on the territory of St. Sophia, thereby securing it for their own church. The conflict at St. Sophia ended in tragedy and a resounding scandal that undermined the prestige of the government and the presidential administration. For the first time in Ukraine, which had attained independence bloodlessly and was justly proud of its tolerant practices, blood had been shed and brute force applied.29 It was probably no accident that such a conflict occurred at the gates of St. Sophia, a cathedral that bears important symbolic meaning for proponents of both Russian and Ukrainian nationalism. At the origin of the conflict between the two nationalisms lies a historical controversy over the rights to the heritage of Kievan Rus’, which is currently claimed not only by Russians and Ukrainians, but also by Belarusians. For the Moscow Patriarchate, the St. Sophia Cathedral is one of the major symbols of the historical “Holy Rus’ ” and the idea of the unity of the three East Slavic peoples. For the Kiev Patriarchate, possession of the St. Sophia Cathedral means ultimate victory for the Ukrainian claim to the spiritual heri-

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tage of Kievan Rus’. That deep symbolic meaning of the St. Sophia Cathedral for Ukrainian nationalism in general and religious nationalism in particular contributed to the fact that the Kiev Patriarchate’s procession to the cathedral was led by former President Leonid Kravchuk himself, as well as by many leaders of the Ukrainian nationalist and national-democratic parties. The government, for its part, has preferred to keep St. Sophia under its own control, rejecting the claims to it made by individual churches and keeping it within its own jurisdiction as a reward that it will transfer to the church in the event of its unification. Kiev has its own version of Moscow’s Christ the Saviour Cathedral reconstruction project. That is a reconstruction of the Cathedral of St. Michael Golden Domes in the center of the city. The cathedral, which was destroyed by the Soviet authorities in the 1930s, dates back to the times of Kievan Rus, and once rebuilt will be destined to serve as a symbol of reborn Ukrainian Christianity. The reconstruction project began under President Kravchuk and continues under President Kuchma, but there is little hope that it will play the same unifying symbolic role in the politics of Ukrainian nationalism as the Moscow Cathedral is playing in the politics and symbolism of Russian nationalism. During the period of intense conflict between Leonid Kravchuk and the Kuchma administration that followed “Black Tuesday,” both politicians made public their perceptions of the events of that tragic day and their views of the model of church-state relations required for the good of Ukraine. Leonid Kravchuk was the first to do so. He blamed the government for the tragedy that had taken place, asserting that the reason for the conflict was the refusal of the authorities to work together with the national church, which was an important factor in the rise of Ukrainian national consciousness and nation-building. Leonid Kuchma, on the other hand, identified the provocative actions of the nationalists and church officials who had tried to drive the government into an impasse as the factor primarily responsible for the tragedy. He noted that granting permission to inter the patriarch on the grounds of St. Sophia would have worsened the government’s relations with the other churches and contravened the policy of official noninterference in church affairs.30 Thus the principal burden of Kravchuk’s statement was a defense of official intervention in church affairs for the purpose of state-building and support of the national cause. Kuchma, on the other hand, stressed the principle of the separation of church and state. The two statements reflected opposing views of the problem and were more in the nature of political declarations than practical suggestions for resolving the complex questions of church-state relations. After all, it is public knowledge that in the last months of his presidency Leonid Kravchuk established good relations with Filaret’s most powerful competitor, the UOC-MP. And the Kuchma administration, for its part, initiated virtually

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open warfare with the UOC-KP following the events of “Black Tuesday” and its declarations of noninterference. Clearly, it was this “flexibility” in resolving practical questions of churchstate relations that allowed both political forces to achieve a compromise in the first half of 1996 in order to attain their common goal, the adoption of a new Ukrainian constitution. The government discontinued its pressure on the UOCKP, while the latter, in the person of Patriarch Filaret and his political allies, renounced its antigovernment propaganda and withdrew the demand for the establishment of a state-sponsored Orthodox church (which the UOC-KP was to have become under a new patriotic government). Thus was the grave of Patriarch Volodymyr put in order as a result of the reconciliation of former enemies, the reanimation of old political alliances, and a change in the orientation of presidential policy on questions of culture, nationality, and religion. Thus for the first time since the declaration of Ukrainian independence did the government renounce a policy of confrontation and enter into a dialogue with the two largest Ukrainian Orthodox churches. The abrupt turns in government policy toward the Ukrainian Orthodox churches under presidents Kravchuk and Kuchma had a direct impact on the official attitude toward Protestants and “new” religions in Ukraine in general. Initially the semiofficial attitude of the government—that there was to be an independent church in a sovereign state—also served to define the main lines of official policy toward Protestants and representatives of other nontraditional churches in Ukraine. On the one hand, the government attempted to make the administrative centers of those churches independent of Moscow, a goal that it more or less effectively achieved;31 on the other hand, it was open to pressure from the Orthodox hierarchs who were its allies and who demanded resolute measures against the flood of missionaries entering Ukraine from the West. The Moscow Patriarchate demanded similar measures from the government of Russia. Because of international public protests against changes in Russian legislation, measures to limit the activity of foreign missionaries in Russia were blocked by President Yeltsin in 1993. In Ukraine, however, such legislative changes were made almost unnoticed by the end of the same year. There was virtually no protest against them, as the amendments were adopted by parliament following the attempt of members of the White Brotherhood to seize the St. Sophia Cathedral in the autumn of 1993, which was widely featured in the media.32 It was generally considered that the discriminatory changes in legislation were directed against Russia, whence most of the “brothers” had come to Ukraine, and they did not lead to any noticeable restrictions on the activity of Western missionaries. As in the past, those missionaries could preach freely in Ukraine and buy time on radio and television, competing only with the officially

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supported UOC-KP in terms of hours of air time. Since the last decades of the nineteenth century, Ukraine has been part of the “Bible belt” first of the Russian Empire and later of the USSR. Many Protestant organizations, including numerous Baptist and Pentecostal communities active in the USSR, had their origins in Ukrainian soil, and Ukrainian ministers played leading roles in allUnion Protestant organizations prior to the collapse of the USSR. The much deeper historical roots of Protestantism in Ukraine as compared to Russia, as well as the larger percentage of adherents of Protestant teachings among the population in general, the different makeup of the Ukrainian religious landscape, and the pro-Western orientation of many segments of Ukrainian population all significantly contribute to the fact that Protestants in general and Western missions in particular are viewed in Ukraine with less animosity than in Russia. One of the major indicators of the sociological climate that surrounds Protestants in Ukraine is the role of the “Protestant” factor in Ukrainian politics in general and elections in particular. Significant interest demonstrated by various political parties in the Protestant vote and the participation of protestants in Ukrainian politics at the highest levels are evidence of general tolerance of the Protestant churches in predominantly Orthodox Ukraine.33

I V. C ONC LU SION: NATION-BUILDING AND RELIGIOU S FREEDOM The current revival of religion in the former USSR cannot be explained only by the end of the persecution of religion by the atheist state or by the ideological vacuum left by the collapse of communist ideology. The religious revival in the former Soviet republics should be viewed as the result of at least two important processes that are currently under way in the post-Soviet countries: first, the dramatic social and economic changes caused by the collapse of the staterun economy and the advance of capitalism, and second, the development of nation-building projects. The “first advent” of capitalism on the territory of the Russian Empire took place in the late nineteenth and early twentieth centuries. It was so rapid and dramatic in character that it undermined the imperial social system and eventually brought about the Russian Revolution. The “second advent,” which began in the late 1980s, has also resulted in the dramatic growth of social tensions. It is also closely linked in the eyes of former Soviet citizens with the West, and consequently with Western missionaries, the only Westerners whom the majority of post-Soviets have ever seen. The missionaries, who are bringing the “spirit of capitalism” to Russia along with their teachings, are also perceived as a major threat to the traditional churches, which remain very weak, unreformed, and unadapted to the new circumstances after decades of communist control. The traditional churches

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are unable to satisfy the spiritual needs of the post-Soviet public, which is largely secularized, disoriented, and threatened by dramatic social change. As a rule, the traditional churches refuse to reform, seek protection from the state, and play the nationalist card to maintain their dominant position in the rapidly changing society. Nationalism and religion, as well as religious nationalism as a product of their interaction, have become important factors in the search for a new identity in the post-Soviet republics. Those republics that belong to the world of “Slavia Orthodoxa” turned to the Orthodox tradition and its institutional embodiment, the Orthodox Church, as an important factor in the creation of their new national identities. The missionary activity of Western Protestant groups has been viewed in that context as a serious threat to the core element in the new nationbuilding process, and the state in the countries of “Slavia Orthodoxa” has generally supported the traditional Orthodox churches, protecting them against their Western rivals in return for Orthodox participation in the state’s nationbuilding projects. Government support for traditional Orthodox churches differs from one country to another, and the cases of Russia and Ukraine well demonstrate the nature of those differences. Why does Ukraine appear much more pluralistic when it comes to religious policy than neighboring Russia? A number of answers to this question are possible, although it is the conclusion of this author that the weakness of Ukrainian ethnic nationalism, which has been recently called “a minority faith,”34 as well as the fragmentation of the Ukrainian religious community, has caused the Ukrainian elites to look beyond ethnic and religious nationalism while searching for a new ideology to legitimize their rule. Those factors have also made Ukrainian elites less receptive to the lobbying of the dominant religious organizations. The Russian elites, on the contrary, while depending on the moral and political support of the one national church, found themselves extremely vulnerable to any pressure from its leadership and were forced to enact a law that openly discriminates against minority religions and new religious organizations.

endnotes 1. For an assessment of the new Russian law On Freedom of conscience and Religious Associations, see Lauren B. Homer, Law and Liberty Trust Written Testimony Before the Helsinki Commission Regional Meeting in Philadelphia, PA, December 1997 (News about Religion in Russia (“NRR”) http://www.stetson. edu/ ˜psteeves/relnews); Galina A. Krylova, On Freedom of Conscience and Religious Associations. Juridical Overview of the New Russian Federal Law, NRR , January 22, 1998) 2. For an assessment of the current status of religious freedom in Russia and Ukraine, see the U.S. State Department Report, United States Policies in Sup-

312 s e r hii p lokhy port of Religious Freedom: Christians http://www.state.gov/www/global/ human_rights/970722_relig_rpt_christian. html. 3. For an English translation of the law, see NRR website above, at http://www.stetson. edu/˜psteeves/relnews/svobodasovesti1709eng.html 4. See Nathaniel Davis, A Long Walk to Church. A Contemporary History of Russian Orthodoxy 215–17 (Boulder CO: Westview Press, 1995). 5. For a list of discriminatory acts against minority religions, see Mark Elliot, The Impact of the 1997 Russian Law on Religion, vol. 5, no. 4 East-West Church Ministry Report 6 (1997). 6. In February 1998, the Patriarchate-controlled radio station RADONEZH declared one parish of the church a “totalitarian sect” because its priest celebrated services in modern Russian rather than in Church-Slavonic. See Anatolii Pchelintsev’s commentary in Radiotsekov (NRR, February 13, 1998). 7. In Kemerovo, the Christian “Gideons” mission was not allowed to continue its work in a number of local schools after the school administration began to cooperate with the Orthodox Church. (See Vadim Akentiev’s report in Radiotsekov (NRR, January 7, 1998). In Samara, as a result of close cooperation between the Orthodox Church and the local Department of Internal Affairs, practically every penal institution in the region got an Orthodox church or chapel. The Orthodox priests in fact replaced the “sectarians,” who were the first to start working in the prisons. (See Samara: Initsiativa v. mestakh lisheniia svobody perekhodit ot sektantov k pravoslavnym Blagovest Info/pravoslavie v Rossii (NRR, January 21, 1998). In Khabarovsk, two Protestant groups lost their premises for holding services in the local hospital as a result of the interference of the Orthodox bishop Mark. The bishop went on record stating that “sectarians” were befuddling people and leading society to destruction. A Russian, in his view, was obliged to embrace a truly “Russian faith.” (See Oleg Chernyi’s report in Radiotsekov (NRR, January 26, 1998). On the role of an Orthodox priest in the state persecution of Baptist group in Smolensk region see Liliia Solomonova’s report in Radiotsekov (NRR, August 13, 1998). 8. See Galina A. Krylova, above n. 1. Numerous actions taken by the authorities against Orthodox communities under the jurisdiction of the Kievan Patriarchate and the Russian Church Abroad demonstrate that is exactly how the new law is being used by the authorities against the Orthodox rivals of the Moscow Patriarchate. In late September 1997, on the eve of the enactment of the new law on religion, the local authorities in the city of Noginsk (50 km. from Moscow) transferred the Epiphany Cathedral from Archbishop Adrian of the Kiev Patriarchate to the clergy of the Moscow Patriarchate. The police officers who took part in the action used brutal force to take control over the cathedral. (See Rostislav Khotin, Ukraine Protests to Russia over Seized Church, Reuters, October 7, 1997). In October 1997, the authorities in Riazan transferred the local Church of the Epiphany from the congregation of the Russian Orthodox Church Abroad to the congregation formed by the Moscow Patriarchate. See Mark Elliott, above n. 5. 9. On the politics of religion in Russia, see Stephen White and Ian McAllister, The Politics of Religion in Postcommunist Russia, 25 (3) Religion, State and Society 235–52 (1997); John Anderson, Religion, State and Politics in the Soviet

Russia and Ukraine 313 Union and Successor States 194–98 (Cambridge: Cambridge University Press, 1994); Jane Ellis, The Russian Orthodox Church: Triumphalism and Defensiveness 122–203 (New York: St. Martin’s Press, 1996). 10. According to a 1994 Radio Free Europe survey, only 39% of Russians considered themselves religious, only 6% attended church on a regular basis, and only 4% had strong religious beliefs. (See Kevin Boyle and Juliet Sheen [eds.] Freedom of Religion and Belief. A World Report 374 (London: Routledge, 1997). According to a 1996 poll, roughly 55% of respondents identified themselves as believers, and only 51% of those as adherents of the Russian Orthodox Church. See Edwin Bacon, The Church and Politics in Russia: A Case Study of the 1996 Presidential Elections 25 (3) Religion, State and Society 253 (1997). Some experts claim that there are more practicing Muslims in Russia than practicing Orthodox Christians. See Pchelintsev, above n. 6. 11. In 1994, after the Moscow Patriarchate had lost thousands of its former parishes to the Ukrainian Greek Catholic and Ukrainian Orthodox churches, it still had more parishes in Ukraine than in Russia: 5,700 compared to 5,200. (See Nathaniel Davis, above n. 110). In 1997, there were 7,357 registered parishes of the Moscow Patriarchate in Ukraine, while the Russian Embassy in the U.S. continued to report “over 5,000” parishes in Russia. (See Relihiini orhanizatsii v. Ukraini stanom na 1 sichnia 1998 roku vol. 1 Liudyna i Svit 24 (1998); Official Web Site of the Embassy of the Russian Federation: http://www.russianembassy.org/civil-code.html. 12. See White and McAllister, above n. 9, 240. A survey conducted in summer of 1996, on the eve of the presidential elections in Russia, showed that 41 % of respondents “fully trusted” the church. See Bacon, above n. 10, 253. 13. For the role of religion in the 1996 presidential elections in Russia see Bacon, above n. 10. 14. On the origins of the theory of Official Nationality see Nicholas V. Riasanovsky, Nicholas I and Official Nationality in Russia, 1825–55 (Berkeley and Los Angeles: University of California Press, 1959). 15. See Kathleen E. Smith, An Old Cathedral for a New Russia: The Symbolic Politics of the Reconstituted Church of Christ the Saviour 25 (2) Religion, State and Society 163–75 (1997). 16. See the text of the Decision of the Holy Synod on the “Yekaterinburg Remains” of February 26, 1998 at the Official Web Site of the Moscow Patriarchate: http://www.russian-orthodox-church.org.ru/en. htm. 17. On the reaction of the Moscow patriarchate to the claims of the Russian Orthodox Church Abroad see Maksim Shevchenko, Pozitsiia RPTs, Pravoslavie v Rossii (NRR, February 13, 1998). On the burial of the tsar see Besik Pipiia, Rossiia provodila v poslednii put svoego poslednego imperatora, Nezavisimaia Gazeta (July 18, 1998). 18. On the policies of the Moscow Patriarchate in the former Soviet republics, see John B. Dunlop, The Russian Orthodox Church as an ‘Empire-Saving’ Institution, in Michael Bourdeaux (ed.), The Politics of Religion in russia and the New States of Eurasia 15–40 (Armonk, NY: ME Sharpe1995). 19. See Alexander Solzhenitsyn, Rebuilding Russia. Reflections and Tentative Proposals (New York: Farrar, Straus and Giroux, 1991).

314 s e r hii p lokhy 20. For the history of the jurisdictional conflict between the Constantinople and Moscow patriarchates, see Serge Keleher, Orthodox Rivalry in the Twentieth Century: Moscow versus Constantinople, 25 (2) Religion, State and Society 125–37 (1997). 21. For a discussion of nation-building in post-1991 Ukraine, see Alexander J. Motyl, Dilemmas of Independence: Ukraine after Totalitarianism (New York: Council on Foreign Relations, 1993); Dominique Arel, Ukraine: The Temptation of the Nationalizing State, in Vladimir Tismaneanu (ed.), Politics, Culture and Civil Society in Russia and the New States of Eurasia 157–88 (Armonk, NY: M.E. Sharpe, 1995); Andrew Wilson, Ukrainian Nationalism in 1990s: A Minority (Cambridge: Cambridge University Press, 1997); Frank E. Sysyn, Ukrainian “Nationalism”: A Minority Faith? 10 (2) Harriman Review 12–20 (1997). On problems of church-state relations and religious tolerance in Ukraine, see David Little, Ukraine: The Legacy of Intolerance (Washington, DC: United States Institute of Peace, 1991); Bohdan R. Bociurkiw, The Politics of Religion in Ukraine: The Orthodox and the Greek Catholics, in Michael Bourdeaux (ed.), The Politics of Religion in Russia and the New States of Eurasia 144–50 (Armonk, NY: ME Sharpe, 1995), and my article Nezalezhna Ukraina: derzhavna tserkva chy hromadians’ka relihiia? 2–3 Pamiatky Ukrainy 3–6 (1992). 22. On the place of Protestantism in Mykhailo Drahomanov’s political plans, see Ivan L. Rudnytsky, Essays in Modern Ukrainian History 212–14 (Edmonton, Alberta, Canada: Canadian Institute of Ukrainian Studies, 1987). 23. See the text of the law On Freedom of Conscience and Religious Organizations (25 Vidomosti Verkhovnoi Rady Ukrainskoi RSR) (1991). For English translations of the all-Union and Russian Federation laws on freedom of conscience, see Igor Troianovsky (ed.), Religion in the Soviet Republics: A Guide to Christianity, Judaism, Islam, Buddhism and Other Religions 19–37 (San Francisco: Harper, 1991). 24. See Bohdan R. Bociurkiw, above n. 21. On developments within the Orthodox Church in Ukraine, see Frank Sysyn, The Russian Sobor and the Rejection of Ukrainian Orthodox Autocephaly, Ukrainian Weekly (Jersey City, NJ) July 26, 1996; Serhii Plokhii, Ukrainian Orthodox Autocephaly and Metropolitan Filaret, Ukrainian Weekly (Jersey City, NJ) August 2, 1992. 25. On the issue of the Greek Catholic patriarchate, see my article Between Moscow and Rome: Struggle for the Greek Catholic Patriarchate in Ukraine, 37 Journal of Church and State 849–68 (1995). 26. Radio Free Europe Listing, July 28, 1994. 27. On the role of the “church question” in the presidential election, see Viktor Yelensky, Tserkva i derzhava: seredyna 1994 r., Ukraina i Svit (Toronto), July 20–26, 1994, at 11. 28. On the struggle between the Orthodox churches over the sacred sites of Kiev, see my article, Kyiv vs. Moscow: The Autocephalous Movement in Independent Ukraine, vol. 9, nos. 1–2 Harriman Review 32–7 (1996). 29. On the opening of a criminal investigation into the mysterious death of Patriarch Volodymyr, see Nezavisimost (Kiev), 28 July 1995. For the reaction of nationaldemocratic forces to the events of “Black Tuesday,” see letters and information about

Russia and Ukraine 315 the beating of participants in the funeral procession in Molod Ukrainy (Kiev), July 25 and 27, 1995. 30. See Leonid Kuchma’s commentary on the events of “Black Tuesday” in Holos Ukrainy (Kiev), July 27, 1995. 31. On the status of the Protestant churches in Ukraine, see Vasyl Markus, Politics and Religion in Ukraine: In Search of a New Pluralistic Dimension, in Bourdeaux, above n. 18, 169–77. 32. Amendments and addenda to Ukraine’s law On Freedom of Conscience and Religious Organizations were introduced by resolution of the Supreme Council of Ukraine on December 23, 1993. On the activity of the White Brotherhood and the “living god” Maryna Tsyhun, see Oleksandr Skoryna, Zhyttia v. borh i zhyttia na znyshchennia, Ukrainska Hazeta (Kiev) nos. 19, 20 (1993); Vladimir Skachko, Boginia rodilas’ v. Donetske, a mozhet sest’ v. Kieve, Zerkalo Nedeli March 11, 1995. The brotherhood’s attempts to seize the St. Sophia Cathedral and the arrest of its leaders were also reported in the foreign press, e.g. Malcolm Gray, Kiev’s Cult of Doom, Maclean’s November 22, 1993, 32–3. 33. In the 1994 presidential election, one of the leading candidates for the office, the Kiev businessman Valerii Babych, made no secret of being a Protestant. He did not win the office, but there hardly was any negative attitude on the part of the voters in connection with his religious affiliation. In the 1998 parliamentary elections one of the electoral blocs, “Hromada,” led by the former prime minister, Pavlo Lazarenko, enjoyed the support of the majority of Protestant congregations in the country. Some of the Protestant leaders, including the vice-president of the Donetsk Bible Institute, Oleksander Zaiats, were included on the electoral lists of “Hromada.” It has been also reported that one of Lazarenko’s aides, Volodymyr Shushkevych, has become a pastor in the “Word of Life” charismatic congregation in the Eastern Ukrainian town of Torez. See Svetlana Stepanenko’s report in Radiotsekov (NRR, February 21, 1998). 34. See Wilson, above n. 21.

Chapter 9 l a w a nd p ol i t i c s t ow a r d t h e m u s l i m s in bulgaria Krassimir Kanev

There are two important historical and political conditions that ought to be taken into account if we are to put the situation of the Muslims in Bulgaria into a more general context. The first of them is the peculiar nature of the region. The Balkans is a relatively small area; with its variety of peoples, religions, languages, and mores, it has no parallel in Europe. The religions of the region include all main Christian churches, Islam, and Judaism. Until only a few decades ago, five alphabets were in relatively widespread use in the area: Cyrillic, Latin, Arabic, Greek, and Hebrew. Despite this diversity, however, the Balkans has nothing in common with the idea of a “melting pot.” In each country of the region, there are more people who speak the languages of the large European countries than the languages of their neighbors. This tradition of coexistence with poor or no communication at all is often combined with economic backwardness, patriarchy, and seclusion within the private world of the ethnos and the family. And in the nineteenth century when following the European model, the Balkan peoples decided to build their own nation-states on the ruins of two empires—the Austro-Hungarian and the Ottoman—the consequences were not difficult to predict. In less than a century, all possible ways of solving the “national question” were tried in the Balkans, from genocide through exchange of populations to forcible conversions and name changes. The second precondition is the way Bulgarian society and identity was cre-

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ated and the way it expressed itself in the subsequent period of state and nationbuilding. The Bulgarian state was created as a result of the national liberation movement of the Bulgarians in the Ottoman Empire, where they were treated as second-class people. It was established on territories populated mainly by ethnic Bulgarians as their own “nation-state.” Religion played an important role in this movement and afterward, not as a spiritual resource but rather as an aspect of the national liberation ideology. The Bulgarian Eastern Orthodox Church has always been considered a tool in the liberation struggle in the later process of the “unification” of Bulgarian lands, and was treated accordingly, including at the highest constitutional level. By analogy, this has been the approach toward religious minorities. The main question asked before considering any law or policy toward them has always been, “Whose national or ethnic interests do they serve?” All important aspects of the legislation and the enforcement of the laws and policies pursued objectives in accord with that fundamental ethno-nationalistic prerequisite, even though various Bulgarian constitutional and legal systems, that of the Kingdom of Bulgaria included, guaranteed the equality of all people before the law in accordance with modern European standards. If we consider the long-term effect of the politics toward Bulgaria’s ethnic and religious minorities, we may note several main results: the growth of the proportion of the Bulgarian ethnic element by more than 13 percent in the course of a century,1 despite relatively lower birth rates of the Bulgarians compared to the Muslim minorities since the 1930s; the drastic decrease of the proportion of large minority communities such as Greeks and Jews; changes in Bulgarian personal and place names; change in structure of the languages of education and the general character of cultural life, or at least of its aspects associated with ethnic and religious minorities.2 It is important to note that the Bulgarian state has never failed to recognize the ethnic and religious diversity on its territory, including at the constitutional level. This diversity has been designated in different ways in the different constitutional and legal systems. Yet even in the years in which the Bulgarian authorities launched large-scale forcible assimilation campaigns against hundreds of thousands of Bulgarian Muslims, the 1971 Constitution guaranteed “citizens of non-Bulgarian origin” the right to study their mother tongue and practice their religion.

I. FROM THE LIBERATION TO THE SECOND WORLD WAR The time from the 1878 Liberation to the Second World War is the most controversial period in modern Bulgarian history in terms of ethnic and religious minority protection in law and practice. In this period minority communities,

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on the one hand, enjoyed the greatest freedom to exercise their ethnocultural rights, practice their religion, and speak their language. On the other hand, some of them occasionally suffered gross abuses. From comparatively broad autonomy, the general tendency was toward gradual tightening of control over the formally and informally established institutions within which minority rights were exercised. This tendency, however, did not proceed smoothly: periods of strict control sometimes alternated with shows of liberalism depending on the domestic and, even more, on the international political climate. The Bulgarian state was created after the 1878 Liberation on the express condition, set by the great powers, that it would protect minority rights. This took place in the context of an international order that was not yet universal, but was in the process of universalization. International minority rights protection at that time was mainly confined to protection of religious minorities, since religion still had a leading role in public and private life. After the Congress of Vienna (1815), specific provisions on protection of “ethnic,” “racial,” or “national” groups eventually started appearing.3 This approach was gradually adopted even by the conservative Ottoman Empire, starting with the Hatt-i Humayun (Imperial Edict) from 1856 and, in regard to the Bulgarians, the firman of February 28/ March 11, 1870 which established the Bulgarian Exarchate as an ethnically-based Orthodox religious community. In the spirit of the age, the first effective state-building act after Bulgaria’s Liberation—the 1878 Treaty of Berlin4—adopted the principle of the protection of minorities foremost as religious minorities, but also contained specific provisions on the protection of “nationalities.” It defined the boundaries of the Principality of Bulgaria and Eastern Rumelia and formulated the fundamental principles of state structure and protection of the “foreign” population. The following articles were based on the approach to minorities mainly as religious minorities: Articles 5 (equality before the law and freedom to profess religion for all people in the Principality), Articles 12 (protection of the property of the Muslims on the territory of the Principality), Article 5 (fair representation of all denominations in Eastern Rumelia), Article 20 (freedom to profess religion in Eastern Rumelia), Article 62 (equality before the law and equal access to public office of all denominations in Eastern Rumelia). Article 4 was an exception to this general principle. It was based on ethnic identity and guaranteed the interests of the Turks, Romanians, Greeks, and other ethnic groups in mixed communities with Bulgarians. The other main treaty protecting Bulgaria’s minorities in the period under consideration was the November 27, 1919 Treaty of Neuilly. A whole section, Section IV, dealt with the issue. The Treaty of Neuilly incorporated Bulgaria into the new system of international legal order established after World War I by the League of Nations. This system was characterized by a constant conflict between the claim to universality and the different standards of minority pro-

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tection applied in the treaties with each country. The Treaty of Neuilly resolutely abandoned the principle of protection of minorities mainly as religious communities, and also introduced race, ethnicity, and language as a basis for equal protection. Its provisions against discrimination were formulated with due consideration for all those aspects (but not gender!). Article 50 guaranteed equal freedom to profess religion or belief both in public and in private. Article 53 guaranteed the right of all Bulgarian subjects to use any language, their mother tongue included, in business, religion, the press and other publications, and in public assembly. Article 54 guaranteed the right to association of subjects from the ethnic, religious, and linguistic minorities. Article 55 obligated the Bulgarian government to assist Bulgarian subjects who spoke a language other than Bulgarian in sending their children to schools where they could be educated in their own language, as well as to provide municipal budget outlays for minority educational, religious, or charity projects. The Treaty obliged Bulgaria to prioritize all provisions on minority protection over national laws and acts of subordinate legislation, as well as to acknowledge that they were “obligations of international interest and are guaranteed by the League of Nations.” The 1879 Constitution of the Principality of Bulgaria5 had few provisions guaranteeing equality before the law and minority protection. Equality before the law was formulated in Article 57, without a provision against discrimination.6 Bulgaria’s first constitution likewise adopted the principle of protection of minorities mainly as religious communities. Article 40 guaranteed all Bulgarian and foreign citizens the freedom to profess their religion—within the law. Article 42, on the one hand, granted minority religious communities freedom of self-government and, on the other, placed them under the supreme supervision of the executive power. However, the Bulgarian Orthodox Church, proclaimed under Article 37 to be “dominant” in the Principality, was exempt from such supervision.7 The main acts regulating relations between the state and the particular religious communities differed on a case-by-case basis. In the case of the Bulgarian Orthodox Church, throughout the period before and several years after World War II this was the Exarchate Statute, passed as a law by the National Assembly and amended several times. Numerous acts on the minority religious communities were passed and, in certain periods, the treatment of some of them was regulated by interstate agreements. Executive supervision over religious minorities in this period was exercised by the Ministry of Foreign Affairs and Public Worship. This was in itself of symbolic significance: local communities of Bulgarian citizens were placed under the jurisdiction of a government ministry in charge of foreigners. It should also be noted that notwithstanding the general constitutional principles of administrative supervision over religious minorities and equality before the law, the attitude of the Bulgarian state to the different religious and ethnic minorities was not identical. Both policies

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and statutory framework differed with regard to the different groups. Muslims were treated differently compared to all other communities in general,8 and there were also differences in the treatment of the various other minority communities. The status of the main religious communities was regulated soon after the passage of the Constitution. The first act in that respect were the Provisional Regulations for the Spiritual Administration of Christians, Muslims, and Jews of July 9, 1880 (Official Gazette No. 56 of July 9, 1880). Their main objective was to regulate the administration of Orthodox, Muslim, and Judaic parishes and, in particular, the remuneration of clerics, income sources and distribution, and taxes. At the same time, the Provisional Regulations made the first timid attempt to specify the provisions of Article 42 of the Constitution on executive supervision over minority religious communities. They abrogated the office of the kadi, or Muslim judges, and transferred their powers to the muftis. Ten mufti judicial districts were formed, with the mufti of each district elected by “the Muslim population.” Under the Provisional Regulations, the elected muftis did not have to be endorsed by the authorities. However, the Chief Mufti and all regional muftis were paid by the government. This also applied to the rabbis, with one important exception: only the Sofia rabbi received a public salary, while the regional rabbis were supported by the local synagogues. The will of the devout Muslims was generally respected, and generally there were no problems. Yet there is also evidence that this mechanism was effectively used by the authorities to influence the election of muftis in certain cases, for example, the election of the Mufti of Rousse, as early as 1880.9 A resolute step toward further control over the Muslim religious community was taken by the 1895 Provisional Regulations for the Spiritual Administration of Muslims (Official Gazette No. 210 of September 26, 1895), which were effective as a whole until 1909, and in part, until 1919. They did not envisage election of the Chief Mufti at all—the latter was appointed by a royal decree (Article 2). District muftis were elected by enfranchised Muslims, but their election had to be endorsed by a royal decree on a motion by the Ministry of Foreign Affairs and Public Worship. The boards of the offices of the muftis were not elected either. Members were appointed by the aforementioned Ministry on the motion of the muftis. All those officials were civil servants whose salaries were paid by the Ministry of Foreign Affairs and Public Worship. In addition, the Ministry endorsed the election of the boards of mosques and was empowered to dismiss them. Muslim Gypsies did not have the right to vote for either muftis or mosque boards, “since they are not in any way involved, under the Shari’ah, in the management of Muslim religious affairs” (Article 17). The Agreement of Constantinople, signed on April 6, 1909 after the proclamation of Bulgaria’s independence in 1908, tried to deal with the shortcomings of this system. The treaty included a special additional agreement on “the

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mufti issue,” regulating the procedure for the election of a Chief Mufti and regional muftis, and the intervention of the Bulgarian authorities in this procedure. The government only communicated the election of the Chief Mufti by the other muftis, so that the Sheikh-ul-Islam could issue him the documents that he needed to exercise his authority under Muslim law. The Chief Mufti alone was in charge of and controlled the election of the regional muftis. The same approach and regulations were applied in the agreement on muftis under the Treaty of Constantinople of September 16, 1913. Under both agreements, however, all muftis remained civil servants paid by the government which, in addition, was also authorized to dismiss them in accord with the laws on civil servants. The First World War, which broke out soon after the signing of the Treaty of Constantinople, prevented the full implementation of the agreement on muftis. After the then Chief Mufti’s term of office expired, another one was not elected until the end of the war in 1919, the office being occupied by locum tenentes. Upon the end of World War I and even before the conclusion of the Treaty of Neuilly, on May 23, 1919, the King issued a decree placing relations between the state and Muslims on a new basis, on a motion by the then Prime Minister and Minister of Foreign Affairs Teodorov. On the whole, the Statute on Spiritual Organization and Administration of Muslims in the Kingdom of Bulgaria (Official Gazette No. 65 of June 26, 1919) remained in force longer than any other regulations on the Muslim religious community in the pre-World War I period, in addition to being the most restrictive one. The Statute gave the Ministry of Foreign Affairs and Public Worship extensive powers to interfere in the affairs of the Muslim community. The Ministry endorsed and was empowered to annul the election of boards of Muslim parishes and of the Chief Mufti. Article 123 also empowered the Ministry to dismiss the Chief Mufti if he “does not conscientiously fulfill his duties and, by his actions, violates the provisions of this Statute and the laws and regulations effective in the country.” All other muftis and members of the boards of the offices of the muftis were civil servants paid by the government and appointed and dismissed by the Ministry. They could communicate with foreign public institutions and officials through the latter only. The Ministry interfered at all stages of the examination and appointment of all Muslim clerics. It supervised the Muslim courts and the affairs of all Muslim institutions. The Ministry licensed the construction of all new mosques, as well as trade in, mortgages, and exchange of vakif-owned property (i.e. property owned by the Muslim religious charities). Article 10 of the Statute decreed that all Muslims, whichever sect they might belong to, were members of the Muslim religious community, whereas Article 14.4 barred beggars from voting for boards. Muslim Gypsies without a permanent place of residence were also barred from board elections (Article 14.5), which was nevertheless an improvement on the 1895 Provisional Regulations. By this Statute, the authorities

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established full control over the Muslim religious community and were able to use it against Turkey and the Kemalist movement emerging in Bulgaria under the influence of the revolution in Turkey.10 The regulations on Muslims in Bulgaria in the period in question generally applied to all Muslims independent of their ethnicity and, hence, to Bulgarian Muslims and Muslim Roma too. The incorporation of the latter into the Muslim parishes also entitled them to the minority rights guaranteed by other laws. Notably, even though it was regulated in principle by the law, i.e. guaranteed unconditionally by the state, the involvement of Muslim Roma in Muslim parishes was not easily accepted by the other members of those communities. The Turks were so critical, especially in the 1920s, that the issue was discussed at a special session during the Turkish National Congress, held in Sofia in October and November 1929. The congress adopted a resolution whereby “Muslim Gypsies shall not take part in the elections” for boards “because of their low cultural level” and because those “entirely Turkish national possessions” had been inherited from the forefathers of the Turks.11 Even though it was not legally binding, this decision undoubtedly contributed to the exclusion of part of the Roma from the Muslim parishes. These tensions between the Turkish and the Muslim Roma community eased somewhat subsequently although they never disappeared. A number of Muslim Roma communities remained de facto excluded from the Muslim religious life for years afterwards, even to these days. Their situation can only compare to the de facto exclusion of big portions of Christian Orthodox Roma from the Christian Orthodox religious life throughout Bulgarian history. The Kingdom of Bulgaria preserved the powers of religious courts to regulate certain social relations. In the general case (including the courts of the Orthodox Church), both the old (enacted in 1891) and the new (from 1930 on) Civil Procedure Act included provisions whereby religious courts were mandated to hear divorce cases and associated issues of child custody and alimony (without fixing its amount). The legal proceedings in those cases were regulated by the statutes of the religious communities or by their customary law. An exception to this general rule was made for the mufti courts of the Muslims, which were also empowered to hear property disputes between parents and children, and between spouses, as well as inheritance disputes. They were divested of those additional powers by the Act to Limit the Competence of Mufti Courts from July 20, 1938, which placed them on an equal footing with the other religious courts. As noted above, Article 53 of the Treaty of Neuilly guaranteed linguistic minorities in Bulgaria the right to use their mother tongue in a comparatively broad sphere of private relationships. Bulgarian laws extended this right to certain relations with public authority, too. All versions of the laws on the judiciary provided for the appointment of an interpreter paid by the parties concerned if

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they did not speak Bulgarian. A foreign language could also be spoken in court without interpretation provided that all judges and parties spoke the language.12 An interpreter was appointed—at no charge to the defendant—at all stages of the criminal procedure too (Articles 214 and 320 of the Criminal Procedure Act). The laws on civil justice also guaranteed interpretation to witnesses who did not understand Bulgarian. In this case, the interpreter was paid from a deposit, which the party calling the witness had paid in advance (Articles 205 and 208 of the new Civil Procedure Act).13 Education was the main sphere in which minority rights were exercised. The international treaties included unambiguously formulated provisions binding Bulgaria to meet the educational demands of the members of ethnic and religious minorities in accordance with the protection of their ethnic and religious identity. In the period under consideration, the country generally abided by this obligation. The education of ethnic and religious minorities was originally delegated almost exclusively and, later, predominantly, to private schools. The general historical tendency was toward placing them under public control; at certain stages, and in certain political circles, there were also supplementary tendencies toward their total abolition. The National Education Act recognized the schools of Muslims, Jews, and Armenians as private minority schools and, between 1921 and 1924, those of “the non-Orthodox Bulgarian communities” too. Muslim private schools also varied by ethnicity: Turkish, Bulgarian Muslim, Tatar, and Gypsy. All private minority schools were run by boards of trustees who were in charge of funding and appointment of teachers. They also got state subsidies. The curricula of all private schools gave broad opportunities for instruction in the mother tongue, especially in the first years after the Liberation. Actually most subjects were taught in the language of the minorities. The first law to introduce compulsory instruction of the Bulgarian language was the National Education Act of 1885. In 1909, this law was amended, introducing compulsory Bulgarian-language instruction also in history and geography. The Agrarian government (1921–1924) cancelled compulsory tuition in the Bulgarian language. It was restored by amendments to the law in 1924. Those amendments also decreed that Bulgarianlanguage subjects at private schools were to be taught by qualified Bulgarian or non-Bulgarian teachers, who had completed public schools. Those teachers, who were appointed directly by the Ministry, subsequently became informers of the authorities in their drive against Kemalist influence in Turkish schools.14 As to the qualifications of the teachers, they varied from one minority school to another, being generally the lowest in Turkish schools. The textbooks were normally written and printed in Bulgaria. There were private minority schools at all levels, from kindergarten to high school. The elementary schools were the greatest in number. The majority of wholly state-subsidized public schools were also elementary. This corresponded

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to the general education level in Bulgaria at that time. After the mid-1920s, the number of private elementary schools started declining drastically, contrary to that of the public schools.15 This applied almost exclusively to the Turkish private schools. The main reason was the transformation of Bulgarian Muslim schools from private Muslim to public schools, a process initiated by legislative reform under the postwar Agrarian government, which stimulated the nationalization of all private schools. This process under the Agrarian rule was certainly not seen as an abuse of the identity of ethnic and religious communities. On the contrary, the minorities, and the Turkish minority in particular, saw the Agrarian government as one of the governments that was most inclined to respect and promote their identity, as the government’s desire was to help improve education levels in those schools and to increase their financial support. The fall of the Agrarians from power aborted the reform. The next governments continued to nationalize Bulgarian Muslim schools, and succeeded in nationalizing almost all of them. The objective, especially after the late 1930s, was to serve the policy of total Bulgarization of this population. Another reason was the then vehement struggle between the pro-modernization Kemalists and the conservative Muslim clergy, who were supported by the Bulgarian state and made private schools their stronghold. The clergy and the Bulgarian state encouraged Turks to send their children to minority schools. After 1936, minority Bulgarian students were even charged fees of 1,000 or 2,000 leva if they attended public or other than their own minority schools. Between 1928 and 1934, many Turkish schools adopted the new Turkish (Latin) alphabet which, by that time, was already in popular use in Turkey. After the May 19, 1934 coup d’e´tat, however, the government, supported by the Muslim clergy, restored the traditional (Arabic) script. This conservatism, supported by the government, coincided with a constant process of closure of private Turkish schools. They were closed on various pretexts. For instance, seven schools in Varna and Provadia were closed in the middle of the 1929– 1930 school year because of poor hygiene and because the poor Turkish peasants could not afford to pay the Bulgarian teachers.16 As in the case of instruction in the mother tongue, the period from the Liberation to World War II offered the comparatively best legal framework and opportunities for the ethnic, religious, and linguistic minority press. The press laws were relatively liberal. Almost all larger ethnic and religious minorities published their own periodicals and literature.17 Nevertheless the state started creating problems for some of the minority publications in the late 1930s and early 1940s. After the May 19, 1935 coup d’e´tat when, pursuing a policy of support for the conservative clergy versus the Kemalists, the government restored the Arabic script in schools, several Turkish newspapers using Latin script were closed down.18 Exchange of populations is another traditional method of solving the “na-

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tional question,” especially in the Balkans. It is based on the presumption of the nation-state, i.e. a state established on the territory belonging to a particular ethnic community and serving this community’s “national interest.” From the Liberation to World War II, the Kingdom of Bulgaria was involved in four population exchanges, in the course of which members of non-Bulgarian ethnic communities were evicted from Bulgaria or “exchanged” for Bulgarians from other countries. All those exchanges were based on treaties and agreements involving Bulgarian citizens of Turkish, Greek, Romanian, and German origins. In the case of Bulgarian Turks, the Bulgarian-Turkish agreements practically legalized bilateral “ethnic cleansing” conducted on Bulgarian and Turkish territory during the Balkan wars. Already in the first appendix to the Treaty of Constantinople of September 16, 1913, Bulgaria and Turkey agreed to facilitate reciprocal optional exchange of Bulgarian and Muslim populations, as well as of their property in the fifteen-kilometer zones on both sides of the border. A month and a half later, on November 2, 1913, Bulgaria and Turkey signed a special agreement on refugees from Thrace and Adrianople. The two countries thereby agreed to resettle entire villages of Bulgarian peasants from the Lozengrad and Adrianople sanjaks (Ottoman administrative districts) into the deserted Muslim villages on the territory of Thrace, which was ceded to Bulgaria, since the Bulgarian villages in the two sanjaks were occupied by Muslim refugees from Bulgaria. This agreement was never ratified by the Bulgarian parliament, even though Turkey invariably insisted on its enforcement. Nevertheless, Bulgaria applied it to a certain degree. The issue was settled more comprehensively by the Bulgarian-Turkish Friendship Treaty signed in Angora after the Balkan wars on October 18, 1925 (Official Gazette No. 110 of August 17, 1926). The supplementary protocol obliged the Turkish government to recognize all Bulgarian refugees from Thrace as Bulgarian citizens, and the Bulgarian government to recognize as Turkish citizens all Muslim refugees from Bulgaria during the wars. The property of the Bulgarians from the European part of Turkey and the Muslims from the territories of the Ottoman Empire, which were annexed as a result of the Balkan wars, was nationalized. The treaty included a Convention on Settlement, which guaranteed freedom of emigration of Turks from Bulgaria and of Bulgarians from Turkey; they were also free to dispose of their moveable property and to liquidate their immoveable property. The review of legislation and policies on the ethnic and religious minorities from the Liberation to World War II would not be complete if we do not consider the cases of both judicial and extrajudicial excesses against minorities, such as atrocities against non-Bulgarian civilian populations during the wars. Even though Bulgarian troops were apparently not as brutal as some of their enemies, there were nevertheless massacres, ill-treatment, arson, rape, etc. of non-Bulgarian civilians in all military conflicts in this period.19 Abuse in war-

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time and, in some cases, in peacetime, included forced name change and conversion of Bulgarian Muslims. Between the Liberation and World War II, there were two name-change and conversion campaigns. The larger and more violent of the two was the conversion campaign during the 1912–1913 Balkan wars.20 Conversion was launched and carried out as an official state policy backed by a broad range of Bulgarian public institutions: from the King and the government to the Bulgarian Orthodox Church. This operation was a typical case of carrot-and-stick policies: it included both privileges for the converts and violence of various type and intensity, from ordinary administrative harassment to severe beatings. These hasty conversions, however, were soon annulled. To all speculations on its “voluntary nature,” the Muslim population responded in February 1914 by voting en masse for the Liberal Party, whose election campaign and subsequent policies were based on restoration of the names and religion of the converts. The next name change campaign against the Bulgarian Muslims was in 1942. It was also violent and also ended in failure: the names were promptly restored after September 9, 1944. Discrimination against the Roma merits special mention in the anti-minority legislation and policies from the Liberation to World War II. For years, large groups of Muslim Roma (in that period, the majority of the Roma were Muslim) were barred from the administration of Muslim religious parishes. For a certain period of time at the beginning of the century, Muslim and nomadic Roma were deprived of the right to vote.21 Under the anti-Semitic legislation, they were included in the restrictive provisions of Ordinance 129 and barred from marrying Bulgarians. Some from Sofia and other big cities were interned along with the Jews. In 1942, Muslim Roma were forced to change their names and convert to Christianity (Podkrepa, September 18, 1990).

II. THE C OMMU NIST PERIOD 22 During the first years of the establishment of the communist regime the priority in the governmental policy shifted to the integration of minorities into society on the basis of the dominant secular ideology of Marxism-Leninism, which was adjusted to Bulgarian conditions in accordance with the Balkan political climate. At various periods in the development of Bulgarian society, this political climate set different, and often mutually exclusive, imperatives.23 Minority policies swung from one extreme to another: from internationalism to nationalism; and from protection and consolidation of ethnic (but not religious!) minority identity to flagrant abuse on an unprecedented scale and level of brutality of ethnic culture, religion, and language. A study confined to the constitutional and legal aspect of minority protection under a totalitarian regime certainly cannot offer an insight into the policies

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pursued, since there is no rule of law in totalitarian societies. Still, a review of the two constitutions that were effective in this period, known as the Dimitrov Constitution of 1947 and the Zhivkov Constitution of 1971, reveals the general political tendency. The 1947 Constitution of the People’s Republic of Bulgaria (Official Gazette No. 284 of December 6, 1947), whereby Bulgaria was transformed from a monarchy into a “people’s republic,” had several provisions guaranteeing equality before the law, protection against discrimination, and protection of the ethnocultural, religious, and linguistic identity of minorities. Article 71 guaranteed equality before the law and protection against discrimination irrespective of ethnicity, origins, and religion. Article 72 dealt exclusively, and in very strong terms, with the equality of women in all spheres of social life, and was unprecedented in Bulgaria’s constitutional history. Article 78 guaranteed the freedom of conscience, as well as the freedom to practice religious rites. This article, however, set another precedent in the country’s constitutional history by imposing a discriminatory ban on the establishment of political parties on a religious basis—a ban which was hardly relevant since the totalitarian regime did not allow the spontaneous formation of political parties on any basis whatsoever nor, incidentally, the free practice of religion. Article 79 safeguarded the right of “national minorities” to be educated in their mother tongue and to develop their national culture. The corresponding provision in the 1971 Constitution of the People’s Republic of Bulgaria (Official Gazette No. 39 of May 18, 1971) was far weaker in terms of protection: it referred to “citizens of nonBulgarian origin,” whom Article 45 obligated to study Bulgarian and entitled them “to study their own language too.” This Constitution also included a general provision against discrimination on the basis of “ethnicity, origin, religion, gender, race, education, and social and property status” (Article 35). In addition, it guaranteed freedom of conscience and religious rites and rituals, and also banned the formation of religious-based political parties (Article 53). The new policy developed in the context of a new international legal order following the establishment of the United Nations Organization. With regard to minority protection, this new order adopted the principle of the general standards and universal protection, relegating to the background, without rejecting altogether, the principle of minority protection under bilateral agreements between the countries “concerned.”24 Bulgaria became a party to several UN treaties that included provisions on the protection of ethnic, religious, and linguistic minorities. Among them were the International Covenant on Civil and Political Rights, the Convention Against Discrimination in Education (UNESCO), and the Convention on the Prevention and Punishment of the Crime of Genocide. They included provisions against discrimination, as well as special provisions on the protection of minority identity.25 After the mid1970s, Bulgaria also became party to the documents of the Conference on

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Security and Co-operation in Europe which, even though they were not international treaties, nevertheless contained political commitments, including in the sphere of minority protection. Despite the existence of clearly formulated constitutional and international legal standards, there were cases of gross abuse of human rights—including of the rights of persons belonging to ethnic, religious, and linguistic minorities— in Bulgaria at all stages of the totalitarian system. Moreover, within the context of one and the same constitutional and legal order, minority policies alternated from promotion to repression and, quite frequently, both at the same time. The postwar population transfers partly changed the line and priorities of Bulgaria’s minority policy. The main minority communities were the Turks, Bulgarian Muslims, and the Roma, many of whom were Muslim. Bloc-based confrontation following Turkey’s admission to NATO and Bulgaria’s to the Warsaw Pact also left a mark on minority policies. Under the communist regime, Bulgarian Turks remained the largest minority community in Bulgaria despite the three exoduses in that period. The first was in 1950–1951: more than 154,000 people emigrated from Bulgaria to Turkey between January 1950 and November 1951, when long-drawn bilateral quarrels culminated in Turkey closing its border. There were several reasons for this exodus. One part stemmed from the fact that emigration, which had always existed between the two countries prior to World War II, had slowed down in recent years. Another was associated with political pressure: fears of encroachment on religion and its external manifestations, of the coming land collectivization and of the modernization of lifestyle.26 The second wave of emigration came after Bulgaria and Turkey signed an agreement on emigration in March 1968 (Official Gazette No. 82 of October 21, 1969). This agreement facilitated emigration to Turkey of “Bulgarian citizens of Turkish origin” whose close relatives had resettled in Turkey prior to 1952. Approximately 130,000 Turks emigrated from Bulgaria between 1969 and 1978 under this agreement.27 The third exodus was from June 1 to August 22, 1989, and came in the aftermath of the forced name-change campaign launched in 1984. Very soon after September 9, 1944 private minority schools were nationalized. Under the October 1946 amendments to the National Education Act (Official Gazette No. 234 of October 12, 1946), they became state-owned, as well as state-subsidized. This step was in accord with the programs of many political parties in Bulgaria even before World War II, and was again met with mixed feelings. On the one hand, it was a relief for the people who had for decades struggled to raise money for the private Turkish schools and, in many cases, had barely managed to avoid bankruptcy. On the other, there were fears that nationalization might be followed by an attack on the freedom of instruction. Thus, at a meeting in Omourtag a few months earlier, Turkish teachers adopted

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a resolution urging the state to keep their schools private while providing financial support.28 If Bulgarian Turks ever had an opportunity for relatively free expression of their ethnic identity after September 9, 1944, it was in the late 1940s and early 1950s. Along with the elementary “Turkish schools” (more than 1,000 in number), there were seven Turkish high schools. A high school for girls opened in Rousse, and in Sofia, Kurdjali, and Razgrad there were institutes training teachers for the Turkish schools. More than ten Turkish-language or bilingual newspapers and one magazine were published in this period, including the local papers in Shoumen, Haskovo, Razgrad, Silistra, and other cities. Troudovo Delo, the newspaper of the Construction Corps, also had a page in Turkish. Bulgarian radio had regular Turkish-language broadcasts.29 The state theaters in Haskovo, Shoumen, and Razgrad staged Turkish-language productions. In April 1951, the Politburo of the Bulgarian Communist Party’s Central Committee adopted a resolution obligating educational institutions to provide special quotas and scholarships for Turkish students.30 This practice of quotas continued throughout the 1950s.31 A “department for work among the Turkish population” was set up at the Central Committee itself in 1951, subsequently renamed department “for work with the national minorities.” Nevertheless, the first signs of alarming tendencies associated with repressions against people of the minorities, as well as with their participation in the institutions of real power, came also at that time. A closed-door plenum of the Communist Party’s Central Committee on January 4, 1948 dealt with the issue of the resettlement of “non-Bulgarian populations” from the country’s southern border. Georgi Dimitrov called those populations “a canker for our country.”32 Several months later, on July 24 and 25, 1948, the government issued two decrees on the procedure of the resettlement of Bulgarian Muslims from all districts along the Bulgarian-Greek border to Northern Bulgaria. The resettlement was declared top secret and conducted in several groups.33 The participation of Muslims in institutions of real political power was limited even before World War II, but its significance as an indicator of social status becomes clearer in the context of the omnipotent and omnipresent socialist state. According to the 1956 census, 35,772 Bulgarians were employed in the public and state organizations, i.e. in positions associated with the exercise of some form of political power which made for 0.55 percent of the total number, and just 829 Turks, i.e. 0.12 percent of their total number.34 Moreover, the employed Turks usually held junior positions and were excluded from important decisionmaking. Of the ninety-seven members and candidate members of the Bulgarian Communist Party (BCP) Central Committee, just one was Turkish, and there were no Bulgarian Muslims or Roma. Nor were any of the nine Politburo members from the main minorities. Those proportions

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did not change in the following years. On the other hand, rapid industrialization, advance of education, undermining of traditional patriarchal stereotypes, and integration into the contemporary ways of consumption and reproduction applied to the Bulgarian far more than to the Turkish and Bulgarian Muslim communities. This also applied to the processes of migration and related material and cultural benefits. The figures show that if in the mid-1950s the majority of the Bulgarian as well as Turkish and Bulgarian Muslim populations was rural, by the end of the communist period most Bulgarians lived in the towns, whereas most Turks and Bulgarian Muslims, as well as about half of the Roma, lived in the countryside. If for the Bulgarians urban migration meant higher social status and further acquisition of property, the larger part of the minorities had to endure all the hardships of Bulgarian agriculture. Denied access to two main sources of well-being under socialism, party-and-state power, and urban life, minority members who wanted to advance in life had no choice but to resort to the only traditional source: money. That is why they were ready to take any high-risk and therefore well-paid job: in mines, building, grueling piecework in tobacco-growing. Nevertheless, discrimination, against the Roma in particular, lower job skills and a high proportion of people under working age unquestionably indicate that the ethnic minorities tended to be closer to the bottom rather than to the top of society.35 After the April 1956 plenum of the BCP’s Central Committee, power in Bulgaria passed into the hands of local party functionaries who were less inclined to follow Soviet models. The plenum was a watershed in BCP politics which, in many respects, but especially in the cultural sphere, brought relative liberalization. In regard to minority policies, however, this watershed definitely signaled a turn for the worse. Attempted abuse of their ethnic and religious identity, although not unprecedented, became a consistent state policy after the April plenum. The first major step in that direction was taken at the October 1958 plenum of the BCP’s Central Committee, which endorsed the so-called “Theses on Work among the Turkish Population,” adopted by the Politburo a few months earlier. Those strongly worded “theses” condemned “the manifestations of nationalism and religious fanaticism” among Bulgarian Turks. From that point on, the “struggle against nationalism,” often seen as any attempt at expressing Turkish self-identity, became the battle cry of all attempts at forced assimilation, including the 1984–1985 forced name change and its aftermath. At the same session at which it discussed the “theses” (June 21, 1958), the Politburo adopted a resolution on the gradual merger of Turkish and Bulgarian schools. This laid the groundwork for their eventual Bulgarization, a process that was completed by the 1984–1985 campaign. Similarly, all local Turkishlanguage periodicals stopped appearing after 1959. They were restored for a brief period of time in 1964, only to be closed down altogether soon after. The

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national Turkish periodicals remained bilingual until 1984, after which they were published in Bulgarian only. Throughout the period from the late 1950s to the early 1960s, there was apparently fierce infighting over all issues of minority policies in the top echelons of power in Bulgaria. This infighting ended in 1968, with the defeat of those who advocated greater freedom for the exercise of minority ethnocultural rights. After a scandal in the Central Committee, the department for national minorities was closed down.36 This marked the beginning of overt assimilationist policies. Undoubtedly one of the main reasons that prompted the leadership of the BCP and the state to pursue repressive minority policies in the years of “real socialism” was the high natural growth rate of the main minority groups in the country.37 In 1984, for instance, on the eve of the forced Turkish name change, the growth rate of the population in Kurdjali district was 14.7%, versus a national average of 2.3%. The high growth rate of the minority population did not result from any “inherent” peculiarity. It was due mainly to the way of life: preservation of the traditional patriarchal structures and mentality, use of child labor, lack of opportunities for self-realization beyond the family, and the economic and cultural isolation of the community. In the 1960s and 1970s, a peculiar form of nationalism developed in Bulgarian society. In terms of both objective and actual political effect, this type of nationalism had an emancipatory aspect in the 1960s and 1970s. It was deliberately cultivated by the liberal intelligentsia as a counterbalance to Soviet cultural imperialism, as well as to the pro-Soviet “hawks” in the BCP leadership. This nationalist fronde, which was anti-Stalinist both by inception and ideology, strove to glorify Bulgarian national history and to draw a contemporary moral from it.38 At that time, writer Emilian Stanev proposed surrounding the monument to the Soviet Army in Sofia with busts of Bulgarian national heroes. In the 1970s this nationalism started penetrating official politics, beginning with the policies toward minorities. Todor Zhivkov’s speech at a meeting with the staff of the Yeni Isik/Nova Svetlina (New Light) newspaper on July 3, 197039 was one of the landmarks of the new policy. Addressing the staff, Zhivkov stressed that one of the objectives of socialist development was the “rapprochement of all national groups.” More than a decade later, terms such as “Bulgarian Turks,” “population of Turkish origin,” and “national groups” disappeared from the vocabulary of Bulgaria’s top party and state leader.40 A massive name-change campaign was launched against Bulgarian Muslims in 1973–1974. It was the coda to a series of forced name changes since the 1950s and a small number of voluntary name changes, confined primarily to the governing elite recruited among this population.41 The name-change was con-

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ducted with the assistance of the Interior Ministry, local communist party, and Fatherland Front activists, and with extensive use of force, especially in the area around Gotse Delchev. By 1974, about 220,000 Bulgarian Muslims had been renamed.42 There is an obvious link between the aforementioned ideological and political perspective formulated by Zhivkov, and the ideological justification of the forced name change of Bulgarian Turks in 1984–1985. Yet “friendship and cooperation between Bulgarians and Turks in the course of the construction of socialism,” which, in other words, included the recognition of Turks in Bulgaria as a distinct ethnic community, still remained the official policy in the 1970s. However, suppression of their ethnic identity continued as an official policy. Since 1967 the regime started sending Bulgarian teachers, even retired, into the regions with mixed (Turkish-Bulgarian) population.43 This policy culminated in the forced name change of about 850,000 Bulgarian citizens, Turks, and Muslim Roma. This was the largest ever name-change campaign in Bulgarian history. It was conducted in the winter of 1984–1985 with the involvement of local communist party activists, the army and police, and by methods identical to those applied against the Bulgarian Muslims ten years earlier. Thousands of people were beaten, sentenced on fabricated charges, banished, and humiliated in dozens of other ways. The number of deaths still remains unknown. Discussing the ideology of the so-called “Regeneration Process,” as the forced name change was officially called, it should be kept in mind that this ideology was “inspired” by the already completed name change. The main argument was historical. It included the thesis that all Bulgarian Turks were descendants of Bulgarians converted to Islam during Turkish rule rather than of Turkic colonizers; that they were now reawakening from a centuries-long slumber; and that they were now happy to restore their “true” names along with their true national self-identity.44 The timing of the 1984–1985 campaign was more or less convenient for the authorities. Bulgarians in the country had not yet shaken free of the nationalist euphoria associated with the celebrations of the 1,300th anniversary of the creation of the Bulgarian state. This was an unusual sensation, insofar as communist authority championed—at least in words—internationalism and condemned nationalism as a typically bourgeois phenomenon. Yet nationalism was now openly manifested. The person in the street was given a chance to unite with History in compensation for the disunity with his or her own present; yet history said that the Turkish yoke was the worst thing that had ever happened to the Bulgarians. On the international scene, the cause of the Bulgarian Turks was defended mainly by Turkey, a country whose prestige had been falling steadily since the 1980 coup d’e´tat. Human rights abuse, deaths from torture in prisons, and harsh

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sentences against peace activists shaped Turkey’s infamous reputation in the international community. When Turkey raised the issue of the assimilation campaign in Bulgaria, it did so in a rather chauvinistic way. The other defenders of the Turks in Bulgaria included the international nongovernmental human rights organizations, mainly Amnesty International, Helsinki Watch, and several smaller groups.45 Most of their reports, however, were published years after the name change and did not in any way affect its course. The name change was the main reason for the emigration of several hundred thousand Bulgarian Turks in the summer of 1989. Some of them, however, were expelled at the very beginning of the campaign. Others left with their families after hastily selling their immoveable and moveable property at low prices.46 The exodus provoked a grave economic and political crisis in Bulgarian society, as well as harsh international criticism of Bulgaria, and was one of the factors that contributed to the fall of the communist regime. If communist policies toward the ethnic minorities were controversial and, before enforced assimilation, encouraged the affirmation of ethnic identity for a certain period of time, those toward the religious minorities were repressive throughout the communist regime. The prime objective of the 1949 Denominations Act (Official Gazette No. 48 of March 1, 1949) was to enable the authorities to establish full control over the denominations. The act banned the religious communities from engaging in the education of children and young people and opening missions, orders, and charitable institutions in Bulgaria. To open religious schools, they needed a license from the Council of Ministers. Foreigners were banned from officiating in Bulgarian churches. A special government office, the Department of Religious Affairs, was set up, which had extensive powers to control the religious communities: to censor in advance all their addresses, circulars and other communications of public relevance; and to control all international contacts, as well as all foreign donations. Article 12 empowered the Director of Religious Affairs to remove from office clerics of all denominations who were found to have “violated the law, [breached] the public order and [acted against] good morals, or to have worked against the democratic structure of the state.” With this act, the authorities established full control over the three religious denominations, which they had officially recognized in the early 1950s: the Bulgarian Orthodox Church, Islam, and Judaism. The Bulgarian Orthodox Church and the Islamic leadership were actively used by the regime, even on the eve and in the course of the forced Turkish name change in the 1980s. The Catholic Church and the several Protestant churches that had existed until then were dealt a heavy blow by a series of show trials of their religious leaders in the 1940s and 1950s, who were sentenced to many years of imprisonment. Until the end of the communist period, those churches were forced to lead a semi-legal existence with recurrent show trials of their leaders.

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III. THE POST-C OMMUNIST PERIOD The fall of the communist system in Bulgaria was initiated by the removal from power of the then top communist party and state leader, Todor Zhivkov, on November 10, 1989. From the very beginning, this process was parallel to attempts at healing the wounds in interethnic relations opened during communism. The first years after the start of democratization saw, among other things, a persistent effort to restore the ethnic and religious rights of the country’s main minority communities. On December 29, 1989, the then ruling Bulgarian Communist Party decided to restore the names of all people forcibly renamed in the years of totalitarian rule. This resolution translated into two decrees issued by the State Council and the Council of Ministers respectively.47 It met with active resistance—precisely from within the ranks of the BCP itself! Indoctrinated in the ideology and practice of the “Regeneration Process,” the party apparatus, especially in mixed (Bulgarian and Turkish) communities, decided to defend what they had consistently worked for over the years. They played the card of populist nationalism, with instant success. The motives were far removed from communist ideology: some were inspired by Bulgarian history, which as an academic discipline during communist rule remained confined to the romantic tradition of the National Revival (the Bulgarian Renaissance, eighteenth and nineteenth centuries); others played on the fear of powerful neighboring Turkey in the context of a disintegrating bloc security system, and laid special emphasis on the possibility of a “Cyprus variant” in Bulgaria; still others tried to ride the wave of a patriotic upsurge as a result of newly acquired independence from the Soviet Union and the reclaimed national identity. Last but not least, by mobilizing the electorate around nationalistic slogans, the renewed and renamed Bulgarian Socialist Party (BSP) managed to tip the scales in its favor, winning the June 1990 elections. The idea of minority rights was not popular with average Bulgarians who had been indoctrinated by anti-Turkish and anti-minority propaganda for years. Under those circumstances, mass protests were organized against the December 29, 1989 decisions, mainly in the regions with mixed populations. Protesters raised a series of radical demands, including the expulsion of Turks from Bulgaria. Part of those protest demonstrations moved to Sofia in early January 1990. The state institutions, along with various groups from the nascent opposition to the ruling communist party, were compelled to start negotiating with the representatives of the protest movement. A Public Council on the National Question was set up, a forum open to all social groups which in the course of several days discussed the entire range of issues that traditionally qualified as the “national question.” The forum ended by issuing a declaration on January 15, 1990, which was an achievement against the background of the radical demonstrations. This declaration asserted the right of minority communities to have their

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own ethnic culture, including the right to free choice of names. One of the serious concessions in it was a provision, the first of its kind, banning the establishment of political parties on an ethnic basis. This provision was subsequently included in the agreement the authorities reached with the Union of Democratic Forces (UDF) in the course of the “round-table” discussion; in the Political Parties Act from April 1990 and, finally, in the new constitution adopted by the Grand National Assembly on July 12, 1991. The right to the free choice of a name, denied by the totalitarian regime, was thus eventually restored. This process was initiated by a law, originally passed on March 5, 1990, which stipulated that to restore their forcibly changed names, people had to go to court (Official Gazette No. 20 of March 9, 1990). This procedure was criticized by some as being too clumsy, and was even boycotted in certain parts of the country. In November 1990, the law was amended, with the court procedure replaced by an administrative one (Official Gazette No. 94 of November 23, 1990). Under the two procedures—court and administrative—about 600,000 names were restored by March 1, 1991. This process continued after that date too, but at a considerably slower pace. All victims of judicial and police persecution in connection with the forced name change were also amnestied in stages. The first amnesty applied to those sentenced under Article 273 of the Penal Code (for spreading false rumors which incited mistrust of authority or public unrest), many of whom were ethnic Turks sentenced on fabricated charges during the “Regeneration Process” (Official Gazette No. 91 of November 24, 1989). The December 29, 1989 Amnesty Act amnestied those sentenced under many articles of the Penal Code, including for certain crimes against the Republic included (Official Gazette No. 99 of December 22, 1989).48 On January 15, 1990, parliament passed an express statute on the amnesty and exemption from service of sentences passed in connection with the change of names of Bulgarian citizens. This law also amnestied people who had received lighter sentences under the Penal Code: circumcisers, absconding internal exiles, those sentenced for insulting officials, and others (Official Gazette No. 6 of January 19, 1990). After August 1990, several presidential decrees pardoned those who had not been covered by the amnesty laws, mainly people sentenced for crimes against the Republic. However, a large part of the confiscated property was not returned under all those amnesties and pardons. Only the Amnesty and Restitution of Confiscated Property Act, passed on December 27, 1990, enabled all amnestied persons to restore their confiscated property. People whose property had been sold or destroyed were compensated with property or the cash equivalent. This law also amnestied certain crimes against the Republic that had not been included in the previous laws (Official Gazette No. 1 of January 4, 1991). The amnesty issue was ultimately resolved by the Political and Civic Rehabilitation of Repressed Persons Act, passed on June 5, 1991. It provided for the political and civic rehabilitation

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of a broad range of people persecuted by the totalitarian regime, including those repressed in connection with the forced name change. A lump sum was to be paid in compensation to the heirs of those who had been sentenced to death or had gone missing, as well as to people sentenced under the Penal Code, the imprisoned, displaced, banished, and interned according to an administrative procedure. The time served counted as length of service for the purposes of employment benefits. The extrajudicially repressed were also entitled to compensation. The heirs to people who had been killed or were missing in connection with the forced name change got a survivor’s pension (Official Gazette No. 50 of June 5, 1991). Returnees, as well as some of the Bulgarian Turks who were unable to emigrate to Turkey in 1989 after closing the border, were faced with grave housing problems. Their dwellings, which they had in many cases been forced to sell under administrative and police pressure, had been bought by local councils or companies and resold or allocated for temporary use to citizens. Two government decrees, of 1990 and 1991, tried to offer a compromise solution and to some extent succeeded: by July 1991, 1,091 of a total of 2,270 applications for restitution of housing had been granted. The final settlement of the issue came with a law passed on July 31, 1992, which restituted all sold dwellings to their former owners, compensating their current occupants by other dwellings or cash. The new Constitution of the Republic of Bulgaria, adopted on July 12, 1991, guarantees individual human rights, equality, and protection against discrimination, ethnic-based discrimination included. Certain provisions in the Constitution also recognize the rights of persons belonging to the ethnic, religious, and linguistic minorities to develop their culture, profess their religion, and use their language. Article 36.2 grants citizens whose mother tongue is not Bulgarian the right to study and use their own language, along with the compulsory study of Bulgarian. Article 54.1 guarantees the right to everyone to develop his/ her own culture in accordance with his/her ethnic identity. Article 13.1, 2 and 4 regulate the relations between the religious communities and institutions and the state, and Article 37.1 obligates the State to maintain tolerance and respect among “the believers from the different denominations.” The Constitution also bans the creation of parties on an ethnic and religious basis (Article 11.4), a provision that is obviously discriminatory, since it restricts the freedom of association unreasonably, in contravention of international law and on a discriminatory basis. It has been and still is criticized by many Bulgarian and international human rights monitors.49 Despite the ban on ethnic- and religious-based political parties, imposed both by the Constitution and by the Political Parties Act, the Movement for Rights and Freedoms (MRF), a political organization set up in January 1990, was registered for both the June 1990 and the next elections. A majority of its

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members are Bulgarian Turks, along with some Bulgarian Muslims and Muslim Roma. Other minority organizations, however, have been denied registration as political parties, for example, the Roma Democratic Union. The ban on ethnic- and religious-based parties was cited in petitions challenging the constitutionality of the MRF, filed to the Constitutional Court before and after the October 1991 elections. In April 1992, the Constitutional Court failed to rule on a petition against the MRF as unconstitutional, submitted by several MPs (mainly from the BSP). The Court thus preserved the political and parliamentary status quo, but left an opportunity for further attacks on the MRF. The signing and ratification of several international treaties elevated Bulgaria’s status as a signatory to almost all significant international human rights conventions. On December 10, 1991, parliament ratified the First Optional Protocol to the International Covenant on Civil and Political Rights, which entitles individuals to submit individual complaints to the United Nations Human Rights Committee. On May 5, 1992, it ratified the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees. On July 31, 1992, the European Convention for the Protection of Human Rights and Fundamental Freedoms (signed in May) was ratified, along with the First Protocol to it. At the same time, parliament adopted declarations under Articles 25 and 46 of the Convention, recognizing the competence of the European Commission of Human Rights to receive individual complaints and the compulsory jurisdiction of the European Court of Human Rights. Several governmental institutions dealing with the issues of ethnic groups were set up after November 10, 1989. All were more or less purely formal, and their policies, if any, were in most cases inadequate to the real problems of the ethnic communities. The Council of Ministers Resolution 267 dated June 30, 1994 established an Interdepartmental Council on Ethnic Affairs at the Council of Ministers. This council was never convened. The BSP government set up a National Council on Social and Demographic Affairs (Decree 123 dated June 14, 1995), which was supposed to represent the ethnic communities, as well as organizations of women, the disabled, pensioners, etc. (Official Gazette No. 57 of June 23, 1995). The very title and, to a large extent, the functions and policies of this body, reflected the traditional approach of Bulgarian Socialists to ethnic minority issues, which were regarded as social rather than ethnic problems. In December 1997, the United Democratic Forces (UDF) government established a National Council on Ethnic and Demographic Affairs (Decree 449 dated December 4, 1997), in charge of both ethnic minorities and Bulgarians abroad (Official Gazette No. 118 of December 10, 1997). The system of representation in the Council, although not as complicated as the previous one, allows political control over minority representation. In regard to the culture of minority communities, the state has provided certain guarantees of the freedom to exercise particular rights. This process took

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time and also met with resistance. The right of children from the minorities to study their mother tongue in municipal schools has been regulated by the National Education Act.50 The Union of Democratic Forces (UDF) government introduced an optional course in Turkish from grades three to eight at municipal schools (Decree dated November 29, 1991). Later, the government elected on the MRF mandate introduced “freely selectable,” i.e. Turkish language course, (i.e. courses that are not part of ordinary school curriculum and are not included in the students records) from grades one to eight, four periods weekly (Decree 183 dated September 5, 1994, Official Gazette No. 73 of September 9, 1994). The MRF has failed to achieve anything beyond that, despite its desire in late 1997 and early 1998 to introduce Turkish language as a “compulsory selectable,” i.e. to include it in the ordinary school curriculum. The latter happened only in July 1999 with the adoption of the Law on the Educational Degree, Educational Minimum and the Educational Plan. The introduction of Turkish-language courses on the municipal school curriculum in the second term of the 1991–1992 school year was met with resistance from both the Bulgarian population in mixed communities and part of the school administration. This, however, was not the only problem. The 1989 exodus of Bulgarian Turks to Turkey and the successive lower-scale wave of economic emigration in the spring and summer of 1992 led, among other things, to a decline in the proportion of Turks with secondary and higher education. The higher-skilled emigrants adapted better to the standards of the Turkish economy and found decent jobs. The return wave brought mainly lowerskilled people back to Bulgaria. This, in turn, made it difficult to recruit qualified teachers once the Turkish-language courses were introduced at municipal schools. Two institutes, in Kurdjali and Shoumen, are training Turkishlanguage teachers, but a satisfactory solution to the problem has yet to be found. A total of nine newspapers have been published in Turkish since November 10, 1989. Some of them, however, have since stopped coming out. Since its inception, the MRF has also called for the restoring of Turkish-language broadcasts on national radio and television. Certain local radio stations have been airing programs in Turkish since 1990. So has national radio, since February 1993. National television started broadcasting in Turkish on October 2, 2000 but only for 10 minutes daily at 5:10 p.m., when very few people watch. During the totalitarian regime, the structure of industry in the areas with compact Turkish and Bulgarian Muslim communities was largely developed without due consideration for economic expedience. The reluctance to move to other parts of the country, due to the opportunity to assert ethnic identity mainly within one’s own group, created an abundance of cheap labor in those areas. Subsidiaries of non-local parent enterprises were set up there, most of whose output went to the former communist countries. The authorities started closing down those subsidiaries even in the earliest stage of the market reform.

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The 1992 census recorded a higher than average unemployment in all former districts with compact Turkish populations. In the districts themselves, unemployment is higher among the Turks than the Bulgarians, since the former are on average less skilled (especially since the better educated emigrated to Turkey in 1989 and 1992). The land reform has also had a negative impact on the rural Turkish population. A series of economic surveys (1991–1992) in mixed communities show that on average, they own less land per capita than the Bulgarians, even within the same community.51 Since the end of the Communist regime relations between the state and the church have remained confined to the framework set by the 1949 Denominations Act. In 1992, the authorities applied its repressive provisions for the first time and, by a series of acts, ultimately caused a schism in the two largest religious communities: the Bulgarian Orthodox Church and the Muslim community. Those acts, engineered by the Department of Religious Affairs, removed from office a number of Orthodox and Muslim officials, while the Patriarch and the Chief Mufti were declared “unlawful.” In both cases, the objective was to establish control over the two largest religious communities. At the peak of the heated public debate on the schism in the Orthodox and Muslim communities, a group of MPs and the President of the Republic petitioned the Constitutional Court to declare the Denominations Act unconstitutional and to interpret the provisions of Articles 13 and 37 of the Constitution. The Constitutional Court declined to declare the Denominations Act unconstitutional but ruled to institute a case on interpretation of the two Constitution articles (Official Gazette No. 49 of June 16, 1992). By Judgment No. 5 of 1992, the Court recognized the inviolability of the free choice of religious denomination and ruled that the state should not interfere in the internal affairs of religious communities. In accordance with its established practice at that time, however, the Court refused to declare any provisions of the Denominations Act unconstitutional, arguing that the latter had been adopted prior to the entry into force of the new Constitution. By that judgment, unconstitutionality was to be established by the law-enforcement authorities on a case-by-case basis in pursuance of the provisions on direct applicability of the Constitution.52 Nevertheless, Judgment No. 5 of 1992 cited several provisions of the Denominations Act as examples of unconstitutionality. Application of those provisions was subsequently discontinued. However, other provisions whose constitutionality may be called into question have remained in force, for instance, the right of the Director of the Department of Religious Affairs to stop the circulation of any religious literature. All successive governments have also tried to exercise political control over the administration of religious communities, since their registration as juridical persons is a prerogative of the executive.53 A serious blow to the government’s control of religion came from the European Court of Human Rights in Strasbourg with the judgment on the case of Hasan and

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Chaush v. Bulgaria on October 26, 2000.54 With this landmark decision the court recognized that the very structure of church-state relationships as established by the Denominations Act allows for abuse of discretion by the government in the process of recognition and incorporation of religious groups. Despite the legal obstacles that remain since the start of democratization, perhaps the greatest progress has been made in regard to religious rights and freedoms. The communist restrictions on the free practice of religion and religious rites—and of Muslim rites in particular—were lifted immediately after November 10, 1989. New mosques were built and dozens of old ones were renovated. Several dozen Protestant churches were also consecrated. The different denominations gradually started restituting their confiscated property.55 The Bulgarian Orthodox Church, Muslims, and the heirs of the former Central Consistory of the Jews have made major progress in this respect. There are three private Muslim religious schools in Rousse, Shoumen and Momchilgrad, and an Islamic theological college in Sofia. Certain mosques have also opened Sunday schools. The smaller religious communities, those of the Armenians and the Jews, have also resumed their activities. There are no restrictions on the publication and dissemination of religious literature. Muslims, as well as the other religious minorities, are entitled to a paid leave for their religious holidays, which is equal in length to that provided to Christians.

endnotes NOTE: This paper is a modified and updated version of a larger study on the legislation and politics toward the ethnic and religious minorities in Bulgaria since the Liberation in 1878, published in A. Krasteva (ed.), Communities and Identities in Bulgaria 55–95 (Ravenna: Logo Editore, 1998). 1. National Statistical Institute, Results on the Census on 4 December 1992, Vol. I 109 (1994); Statistical Yearbook of the Kingdom of Bulgaria for 1909 39 (1910). (Both in Bulgarian). 2. In nine years, from 1890 to 1898, Bulgaria’s Turkish population—the number of which fluctuated but never reached 600,000, of them just 6.48% literate in 1900— had a total of 18 Turkish-language newspapers; in the nine years between 1990 and 1998, when more than 800,000 people identified as ethnic Turks and indicated Turkish as their mother tongue, 80% of whom were literate, there were just nine newspapers. See M. Ivanov (ed.), The Periodical Press of the Minorities in Bulgaria, 1878–1997 55–67 (1998) (in Bulgarian). 3. Patrick Thornberry, International Law and the Rights of Minorities 29 (Oxford, England: Clare Press, 1991). 4. The text of the Treaty of Berlin, as well as the other international agreements quoted in this study are, unless indicated otherwise, from B. Kessyakov, A Contribution to the Diplomatic History of Bulgaria, 1878–1925 (1925) (in Bulgarian).

Bulgaria 341 5. The texts of the Constitution and laws in this study are, unless indicated otherwise, from Collection of the Effective Laws in the Principality, 1878– 1904 (1904), Collection of the Effective Laws of the Ministry of National Education (1940), and Collection of the Effective Laws in the Kingdom, 1878–1942 (1942) (all in Bulgarian). 6. This approach was widespread at that time, along with discrimination on the basis of a variety of criteria which were subsequently included in the anti-discrimination provisions of constitutions and international legal instruments after World War II: for instance, women were denied the right to vote not only in Bulgaria but also in many other countries. 7. The attempts of several MPs in the Constituent Assembly to extend Art. 42 to the Bulgarian Orthodox Church were rejected by the majority, see Minutes of the First Constituent National Assembly in Turnovo, Minute XV (March 24, 1879) (in Bulgarian). The majority also rejected attempts to ban proselytism, id. 140. 8. A. Girard, Les Minorities Nationales Ethniques et Religieuses en Bulgarie 105 (1932). 9. B. N. Simsir, the Turks of Bulgaria, 1878–1985 125–6 (London: K. Rustem & Brother, 1988). 10. On the government policies toward the Kemalist movement, see Simsir, 95– 105, above n. 9; V. Stoyanov, The Turkish Population in Bulgaria between the Poles of Ethnic Policy 84–5 (London: Hurst Press, 1998) (in Bulgarian). 11. Simsir, above n. 9, 89–90. 12. This provision has had no analogue ever since. 13. Those provisions also applied in administrative justice, insofar as the regulations of general civil procedure applied in the cases when the laws of administrative procedure did not contain special rules (Art. 43 of the Statutory Ordinance on Administrative Justice and Art. 30 of the former Imperative Justice Act). 14. K. Manchev and E. Doichinova, The Muslim Population from Northeastern Bulgaria in Bulgarian and Turkish Policies, 1919–1939, 5 Istoricheski Pregled (1991) (in Bulgarian). 15. E. Sachkova, The General Education of Minorities, 88 Yearbook of the Sveti Kliment Ohridski University of Sofia, Faculty of Pedagogy Table 2 (1995) (in Bulgarian). 16. Simsir, above n. 9, 106. 17. For a review of the periodicals of the Turks, Roma, Armenians and Jews, the latest publications included, see. Ivanov, above. n. 2. For details about the periodicals of the Bulgarian Turks, see. A. Popovic, L’Islam Balkinique: Les Musulmans du sud-est Europeen Dans La Periode Post-Ottomane 390–394 (Milano: Feltrinelli, 1986) and Simsir, above n. 9, 239–41. 18. Simsir, above n. 9, 114. 19. Report of the Carnegie Commission, The Other Balkan Wars, (Sofia: Free and Democratic Bulgaria Foundation, 1994). 20. V. Georgiev and S. Trifonov, The Conversion of Bulgarian Mohammedans 1912–1913 (Sofia: Prof. Marin Drinov, 1995) (in Bulgarian); K. Vassilev, Rhodopi Bulgarian Mohammedans: A Historical Review. Part I (1961) (in Bulgarian).

342 k r as s imir ka ne v 21. E. Maroushiakova and V. Popov, The gypsies in Bulgaria 84–7 (Sofia: Kloub, 1993) (in Bulgarian). 22. This and the following section are based in part on documents from the writer’s private archives. 23. The policy on the “Macedonian question” is the most striking example in this respect. If in the mid-1940s, after Dimitrov and Tito agreed (in Bled in August 1947) on an exchange of territories between Bulgaria and Yugoslavia, the official Bulgarian policy was to promote Macedonian identity in Bulgaria by all means; yet just a few years later there was an about-turn. 24. Thornberry, above n. 3, 113–17. 25. The best known among them is Art. 27 of the International Covenant on Civil and Political Rights, opened for signature July 6, 1966, 78 UNTS 277, Art. 27 (entered into force 1980): “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” 26. H. L. Kostanick, Turkish Resettlement of Bulgarian Turks, 1950– 1953 80–87 (Berkeley: University of California Press, 1957). 27. Simsir, above n. 9, 264. This figure is disputed, though. According to other sources the total number of emigrants under the 1968 agreement was a little bit over 114,000 Cf. A. Eminov, Turkish and Other Muslim Minorities in Bulgaria 70 (New York: Routledge, 1997). 28. Simsir, above n. 9. 149. 29. Ivanov, above n. 2, 64–5 30. Stoyanov, above n. 10, 116. 31. U. Buechsenschutz, Minority Politics in Bulgaria: The Politics of the BCP toward Jews, Roma, Pomaks and Turks 1944–1989, 163 (Sofia: IMIR, 2000) (in Bulgarian). 32. Stoyanov, above n. 10, 105–6. 33. Bulgarian Communist Party Central Archives, holding 1, inventory 8, archive unit 186. 34. Statistical Yearbook of the People’s Republic of Bulgaria for 1959 (1959) (in Bulgarian). 35. This is also clear from the sociological survey conducted in the Rhodopi region in 1984, and especially from the data on the average income by ethnic groups, see V. Dobriyanov (ed.), The Way of Life of the Rhodopi Population: State Tendencies, Factors and Perspectives 47 (1992) (in Bulgarian). 36. A. Rafiev, Battle Cry of Job-Seekers, Douma, April 17, 1996 (in Bulgarian). 37. H. Poulton, The Balkans: Minorities and States in Conflict 122–3 (London: Minority Rights Group, 1994). 38. Prof. Tzvetan Todorov was caught in a real dilemma in 1981 when he tried to describe to the Bulgarian public, celebrating the 1300th anniversary of the Bulgarian state, the defense of the community to which we belong as a “group egoism” see Tz. Todorov, On a Foreign Land 11–15 (1998) (in Bulgarian). 39. T. Zhivkov, Selected Works, Vol. 18, 95–110 (1976) (in Bulgarian).

Bulgaria 343 40. One of the rare exceptions was his interview for Robert Maxwell in Rabotnichesko delo 24 (1984) at 3. 41. On the forced name changes in 1953 and 1964, see Stoyanov, above n. 10, 122– 3 and 136–7. 42. P. Gocheva, The Mysteries of the Last Census, 96 Douma, April 27, 1993 (in Bulgarian). 43. Buechsenschutz, above n. 31, 138. Indicatively, one of the writers who were promoted during the “Regeneration Process” wrote in the 1970s that in Kurdjali district alone, approximately 3,000 of all 5,700 teachers were not local residents but had come from other parts of the country, see S. Tahirov, The Bulgarian Turks Along the Road of Socialism 96 (Sofia: 1978) (in Bulgarian). 44. See the analysis of this ideology in Eminov, above. n. 27, 9–18. 45. Amnesty International, Bulgaria: Imprisonment of Ethnic Turks (1986); Helsinki Watch, Destroying ethnic Identity: The Turks of Bulgaria (1987); Helsinki Watch, Destroying Ethnic Identity: The Expulsion of the Bulgarian Turks (1989). 46. By September 10, 1990, a total of 369,839 Bulgarian Turks had emigrated to Turkey. Of them 154,937 returned to Bulgaria, i.e. 214,902 remained in Turkey in this period. A small part of them emigrated in 1990. See D. Vasileva, Bulgarian Turkish Emigration and Return, 26 International Migration Review 2, 348 (1993). 47. The principle of restoring minority rights applied in those decrees also imposed certain restrictions on, for instance, the language, which was “allowed” for everyday use only, from which a series of restrictions ensued in minority education, culture and public activity, see I. Tatarli The Education of the Turkish Minority in Bulgaria, Prava i Svobodi, January 26, 1996 (in Bulgarian). 48. This amnesty, however, did not apply to those sentenced for espionage, subversion, sabotage, etc., among whom there were many Bulgarian Turks. 49. Parliamentary Assembly of the Council of Europe, Opinion on the Application of Bulgaria for Membership of the Council of Europe, UK, ADOC6597 1(1992); U.S. Department of State, Country Reports for Human Rights Practices for 1992 (1993); Bulgarian Helsinki Committee, Human Rights in Bulgaria after the October 1991 Elections (1992); Lawyers Committee for Human Rights, Critique: Review of the U.S. Department of State’s Country Reports on Human Rights Practices for 1991 (1992). 50. Art. 8.2 after the subsequent amendments (Official Gazette No. 36, March 31, 1998). The MRF strategy on reintegration of Bulgarian Turks into public life has been far from maximalist. It has, rather, been pragmatic, proceeding from what is feasible in Bulgarian society. Since its very inception, the Movement has demanded the introduction of a Turkish-language course of four periods a week in the curriculum of schools in the public educational system. 51. Y. Hristoskov, Interethnic Relations in the Period of Economic Reform, 13 The Bulgarian Watcher, January 4–8, 1992. 52. With a resolution of January 1996 (on Constitutional Court Case 31 of 1995, see Official Gazette, No. 9, January 30, 1996), the Constitutional Court reversed this judgment, by ruling that it was always competent to render judgment on the constitutionality of a law irrespective of the time of its adoption.

344 k r as s imir ka ne v 53. Cf. Emil Cohen and Krassimir Kanev, Religious Freedom in Bulgaria, 36 Journal Of Ecumenical Studies, 1–2, (Winter–Spring, 1999). 54. The judgment is available at the ECHR web site: www.echr.coe.int. See Danchin and Forman, Chapter 5 of this volume, for a discussion of this case. 55. Cf. Religious Minorities in Albania, Bulgaria and Romania, Human Rights Without Frontiers 2–3, (1996).

Chapter 10 pr o t e ct i on of m i nor i t y r e l i g i o n s i n h u nga r y : a c om p a r a t i v e p e r s p e c t i v e Bala´zs Schanda

Do minority religions need protection? Do they need special protection? Is affirmative action necessary—and is it permissible? What are to be considered as minority religions—everything other than the majority, or only non-mainstream religions? Should “new religious movements” be considered minority religions? Who decides if a group can be acknowledged as religious? Can social acceptance be taken into consideration in the case of dysfunctions? How far can social realities be taken into consideration? Is equal treatment necessary for the protection of minorities? Does the state have to do more than just not infringe free exercise? How far should the state go in accommodating religious beliefs? Despite the universal acceptance of human rights, church-state relations show how strong historical determination can be. My essay tries to provide an insight into the practical reality and law concerning the issue of minority religions in Hungary. Religious minorities cannot expect much from the international human rights instruments, as the practice of the European Court of Human Rights demonstrates. The present European situation shows that a significant number of European countries have a “two-tier” system giving special recognition to a state or national church or to some mainstream churches. The various models of church–state relations show a kind of convergence. One of the factors challenging such relations is the emergence of new religious

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groups—new minorities. While all countries and societies elaborate ways to handle “old” minorities, the newly appearing groups often do not fit into old categories. As Hungary has established a new constitutional order with the fall of communism, the historical determination of the relevant legal material is less obvious than in countries where relevant law can be centuries old.

I . CHU RC HES AND RELIGIOUS COMMUNITIES IN HU NGARY

a. the denominational-religious landscape of hungary Obtaining data on religious affiliation is prohibited by law.1 The Constitutional Court decided in 1992, however, that surveys for public or scientific purposes are not unconstitutional if the answers are anonymous and individuals are not obliged to give answers.2 According to two representative surveys conducted in 1992 and 1993, the denominational proportions of the population are as shown in table 10.1:3 As the first survey asked for “Roman Catholics,” Greek Catholics (Uniates) who make up 2 to 3 percent of the population were probably recorded under the “other” rubric. The second survey did not divide Catholics by their rite. The percentage of Catholics is slightly rising, while the percentage of the Reformed Church seems to be falling. There is no statistical evidence of the suggested growth4 of “new” religious communities. Recent surveys made on smaller samples (1,000 to 2,000 persons) show the same proportions if denomination was asked. However if membership in a church was asked, about 30 percent did not give an answer or declared themselves a non-member, while those committed to a church show similar denominational proportions. (Such surveys were conducted by the Szonda, Gallup, and T’arki polls, as well as in the framework of the “Aufbruch”-project).5 Since the change of the borders after World War I when Hungary lost more than 60 percent of her population, only tiny Romanian and Serbian Orthodox communities remained on Hungarian territory and the percentage of Catholics rose above 50 percent for the first time since the Reformation. About 40 percent of the ethnic Hungarian adherents of the Reformed Church and almost 90 percent of the ethnic Hungarian Unitarians (anti-Trinitarians) became national minorities of the successor states. About 50 percent of the Hungarian Jewry, including the vast majority of Orthodox Jews, lived in seceding territories. The reduction in the percentage of the Jewish community from 4.9 in 1941 to 1.5 in 19496 was due to the Holocaust and became even smaller due to emigration. Secularization during the communist period affected religious practice in gen-

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table 10.1 The Denominational Proportion of the Hungarian Population

Catholic Reformed Lutheran Jewish Other No denomination

1992

1993

67.8 20.9 4.2

74.4 16.7 4.1 0.5 0.5 3.8

2.3 4.8

eral; however, Jews were probably affected the most and Protestants to a larger extent than Catholics. Although the vast majority of Hungarians identify themselves with a church, religious practice can be considered as low, although rising. This increase originates only partly from a large number of new religious groups, but “traditional” churches have become more vital, too. At least two non-mainstream religious communities (the Jehovah’s Witnesses and the charismatic evangelical church) have more than 10,000 members each. It is hard to judge how solid the structures of these religious communities are, as membership in the new religious groups shows large fluctuations.

b. the principles of church-state relations in hungary 1. Neutrality. The state should remain neutral in matters concerning ideology; there should be no official ideology, religious or secular. The state should not identify itself with any ideology. The state should not enter into institutional entanglement with any organization that is based on a religious or secular ideology. Freedom of religion and freedom from religion (the positive and negative side of freedom) are equally protected.7 2. Separation. Church and state should be separated:8 the religious communities should have no possibility of making use of state power.9 The state should respect the autonomy of religious organizations and should not interfere in their internal affairs. The state provides a special legal form for religious organizations and registers those who meet the formal criteria.10 The registered religious organizations have the same legal standing;11 there should be no privileged or unfavored group. Using different standards in order to accommodate religious claims is not permissible. However, it is outside the scope of the Constitution that there are significant differences between religious communities, and the more numerous, more established religions are easier to practice.12 This

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is not provided by the state or by laws, but by the social reality of church networks. 3. Cooperation. The state has an active role in ensuring freedom: neutrality does not mean indifference. The state should promote an environment in which ideas and values (which are not to be judged by the state) can be born. The state has to separate itself from the world of ideas and values; it should appreciate and enhance their existence, however, even by using public funds. It should work out legalized compromises in issues where constitutional rights and interests come into conflict, as in issues of education.13 Criminal law protects both individual freedom and religious groups.14

I I. LEGAL REC OGNITION OF CHURCHES AND RELIGIOU S ORGANIZATIONS According to Hungarian law: Those following the same religious beliefs may, for the purpose of exercising their religion, set up a religious community, religious denomination or church (hereinafter together referred to as a “church”) with a selfgovernment. Churches may be founded for the purpose of pursuing all religious activities that are not contrary to the Constitution and do not conflict with the law.15 When referring to religious groups, Hungarian law uses the word “church.” This term covers religious groups that do not regard themselves to be “churches” in respect of their theological understanding. Certainly a “church” does not have to call itself a “church” to be so registered. “Churches” have to be registered by the competent county court and they gain the status of a legal entity (legal personality) through registration.16 As churches can be founded for exercising a religion, when judges decide on the registration of the group, their decision inherently acknowledges the religious character of the group concerned. Until the present time the procedure of registration was highly formal and judges did not enter into substantive issues. Consequently, even groups like the Scientologists that are not regarded as religious in most European countries are registered as “churches” in Hungary. The requirements for registration are the following: • •

the church has to be founded by at least one hundred private individuals; the church has to approve a charter;

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• •

the church has to elect its representative and its organs of administration; the founders have to submit a declaration whereby the church declares that it is of religious character and its purpose and activities are not contrary to the Constitution and the law.17

Religious communities may apply any of the legal organizational forms compatible with their activities, but they are not obliged to do so. It is important to underline that neither the private nor the collective exercise of religion is bound to any legal-organizational form. Rather, it is ensured to everyone and every registered and unregistered group equally.18 A religious group registered as a “church” enjoys the same religious freedom and protection19 as a religious group registered as an association or a religious group that is not registered at all. Differences in registration are more of symbolic value rather than factual differences in rights and obligations. By the end of 1997 there were 75 registered churches. Besides the large traditional confessions a number of small traditional churches are registered including various Orthodox churches and the Unitarian Church. A large number of Christian groups and new religious movements are registered, some of them founded by foreign missionaries. Several nontraditionally European religions are among the registered groups, including Hindus, Muslims and seven different Buddhist groups. A special legal status for religious communities is not a unique feature in European legal systems. A number of countries maintain the establishment of a state church (Denmark, England, Finland, Greece, Norway), while others give special recognition to the former state (either national or traditional) church (Bulgaria, Italy, Poland). Furthermore, there are models that provide for registration with different legal status (Austria, Germany). However, the special legal recognition and the equal status of denominations are not an exemption either. The Hungarian law requires only a “religious” purpose for registration as a church or religious community. In 1992 a petitioner challenged the constitutionality of the provision which declared that the condition for the registration of a church (religious community) is that it should have at least one hundred members.20 The petitioner argued that this was contrary to the Constitution, Article 60.2 which guarantees the exercise of religion in community, and Article 60.3 which declares the separation of church and state. The state could not inquire into the church’s membership nor create special conditions for obtaining legal personality. Because of the condition for registration, then, religious communities of fewer than 100 members could not benefit from communal exercise and were permanently at a disadvantage compared to the larger registered churches. In dismissing this argument, the Constitutional Court held that the require-

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ment of one hundred natural persons as a prerequisite for the registration as a church does not violate the right to common exercise of religion of those religious communities the number of whose founding members is below that legal threshold. The rights of communal exercise can be practiced not just by members of a registered church; the free exercise of religion is conferred on everyone regardless of whether or not it occurs within legally regulated frameworks and/ or in any other organizational form. The Act gave rise to no discrimination in the legal regulation of organizational forms. It was left to the discretion of the religious community concerned to choose the legal organizational form by which it gained legal status. The neutral state legal system offered religious communities the opportunity to make use of the legal form of “church” as defined by the State’s secular laws. Provided the community fulfilled the criteria in such laws (for example, the requirement of having at least 100 members), it would accordingly obtain its legal status as a “church” and so fit into the legal system. The Court held that the separation of church and state declared in Article 60.3 of the Constitution as part of the guarantee of the right to freedom of religion was not violated either. Separation protects not only religious communities functioning as “churches.” The state cannot intervene in the autonomy of any religious community. Moreover, except for the larger organizational autonomy granted to the churches, the Act did not guarantee additional rights that other religious communities could not enjoy. Public activities (such as education, health care, etc.) were not reserved exclusively for the state but could be practiced by anyone including, inter alia, religious communities that did not function as churches. It is not only the church but also any religious community or teaching with which the State may not institutionally connect itself; the state may not take a position in religious matters. The State cannot intervene in the autonomy of the religious communities in such a way as to affect the specific religious character, apart from regulations of the organizational form in which such communities were to function.21 An additional right of the churches compared to other institutions is their right to offer optional religious instruction in state schools.22 The Constitutional Court did not regard this as arbitrary discrimination. Requiring at least one hundred members in order to gain access to the public schools is a standard to show a minimum of social acceptance. It is not a constitutional issue but a practical one that, as the minimum number of students in a religion class to be held on public schools premises is required, small churches, even if they have several thousand members, are not likely to be able to make use of that right.

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This however, is merely a consequence of their size or the limited number of adherents. The prescription of churches in the Act was intended to follow the traditional description of churches with large memberships, while at the same time also accepting smaller religious communities as churches. It is not a constitutional question that historical churches with a large membership in their organizational structure and their co-operation with the State, in many areas, facilitate the exercise of religion for their members where the assistance of other (often state) institutions is required, such as in health-care or penitentiaries.23 Hospital personnel, for example will find a Catholic or Reformed Pastor easily while finding spiritual assistance for someone of a little known religion may be more difficult. From the approach of the Constitutional Court, we conclude that the nondiscriminatory character of the Act may change if secondary norms operate to grant substantial additional rights to registered churches that are not accessible to other religious communities not registered as churches.

III. EQU AL STATU S OF CHURCHES

a. equal status in historical perspective It was the Parliament of Transylvania, which comprised Hungarian and German estates, that was the first in Europe to declare in Torda (today: Turda, Romania) in 1568 the free exercise of four confessions: the Reformed (Calvinist Presbyterian) Church, the Lutherans, the Unitarians, and the Catholics. In the course of the seventeenth century the Protestant nobility achieved considerable freedom. Because of the re-Catholization emphasized by the Habsburg kings this freedom was curtailed step by step. The Reformed and the Lutheran confessions regained their freedom at the end of the eighteenth century.24 While the free exercise of these confessions became permitted, however, their status remained far from equal to that of the Catholic Church. And while revolutionary legislation in 1848 declared the equality of all accepted religions,25 the emancipation of Jews was postponed until 1867.26 Some differences between the various confessions still remained after 1895, when finally the free exercise of religion was recognized.27 The legislature differentiated between “accepted” and “recognized” denominations (the Catholic, Reformed, Lutheran, Orthodox, Unitarian Churches and the Jewish Community became accepted confessions, which meant, inter alia, that their representatives gained seats in the Upper House of the Parliament).

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The differentiation between accepted and recognized churches ceased in 1947, when all confessions received the same status, essentially on the same level that used to be the status of the recognized churches before 1895.28 That is, the “accepted” churches lost their privileges. The present law states expressly the equal status of churches: “Churches should have the same rights and the same obligations.”29 It is important to underline that the state is required to treat all churches equally and to provide everyone with the possibility to exercise their freedom of conscience. However, the separation of church from state does not mean that the state ought to ignore the characteristics of religion and church in its legislation: for instance, it could take into consideration everything that differentiated churches and religious communities with respect to their history and social role, from those other social organizations, associations, unions, and chambers of commerce. Furthermore “treating the churches equally does not exclude taking the actual social roles of the individual churches into account.”30 The State is not supposed to handle all religious communities equally: “differentiation is permissible when due to factual differences.”31 In 1993 a motion was submitted by four members of Parliament to change the requirements for gaining the legal status of a “church.”32 Instead of the present rule that one hundred natural persons are allowed to found a church, this number would be changed to 10,000 or the authorities would require 100 years33 of presence in the country. As this motion was not put on the agenda, a new motion with a similar content was made in 1998.34 A religion wishing to be organized as a church could not violate public safety, public order, health, morals, or the rights and freedom of others. According to the members of Parliament, the present Hungarian law follows the American model rather than the European praxis. In the latter, the “non-discrimination of beliefs does not mean that historic, cultural, and sociological facts are not to be taken in to consideration in the legislation.” This latter motion was not taken in the agenda of the parliament either. The easy accessibility of the legal entity “church” has turned out to be in fact an invitation to various controversial groups and even to doubtful commercial undertakings to get this privileged status. The government that came to power in 1998 tried to have the law changed, but has failed thus far. It is to be noted that the free exercise of religion (either in private or in public, either alone, or in community with others), is not bound to any kind of legal form: unregistered groups enjoy the same freedom as registered ones. As a legislative matter this issue requires a qualified (two-thirds) majority in the Parliament.

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The goal of the amendment would be to exclude the possibility of registering groups of nonreligious character as “churches.” Other kinds of problems concerning religiosity are not so much issues for further legislation but rather for the correct application of the law. According to the concept of the amendment a definition of religion should be put in the law in a way circumscribing the activities that a “church” primarily pursues as well as targets that are not primarily religious in their nature. Primarily economic or cultural activities would not qualify a group to be religious, as they should have transcendent doctrines that embrace the whole reality of human existence and foresee special activities that do not violate good morals or human dignity. A group not fitting the definition can pursue its activities freely, but cannot get registered as a church.

b. challenges to the equal status of churches 1. restitution of real estate In the early years of communism almost all church property was nationalized. Churches could only maintain the buildings used for worship and a very limited number of institutions for charity and education. Prior to World War II, the Catholic Church was the greatest landowner of the country and churches maintained over 60 percent of schools. In 1991 Parliament passed an Act on the settlement of the ownership of the former real estate of churches.35 The Act opened a ten-year process (which has subsequently been extended to twenty years)36 during which time the churches can reclaim buildings that were and are to be used for purposes of religious life (such as worship, conference centers, church administration, apartments providing accommodation for persons employed by a church, training of clergymen etc.), religious orders, education, health care, and culture (community houses, museums). Profit-oriented enterprises (land, printing houses etc.) were not to be reclaimed. The restitution is partial and functional, as only a small part of former properties can be reclaimed and the churches have to ensure the public functions of the buildings concerned. The Act promised to restitute at least half of the claims and to compensate the municipalities who have in the meantime became owners of most buildings. A number of petitioners challenged the constitutionality of this Act in 1993. The decision of the Constitutional Court—the most comprehensive concerning religious freedom—also clarified the fundamental notions of religious freedom and church–state relations with special respect to education, which is the most sensitive issue in this field.37 For the purpose of this paper, the most important reason the Act was challenged was that it drew a distinction between the compensated churches and the other churches as well as other organiza-

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tions (NGOs) which suffered similar property loss and did not receive compensation. The partial restitution of confiscated church property raised the question of the equality of churches in this respect. Petitioners argued that the Act intended to reestablish the confessional landscape of the precommunist period.38 The Constitutional Court did not regard it as unconstitutional that only certain churches became entitled to reclaim some of their expropriated property: It was logical that churches which either were not operating at the relevant time or had suffered no loss remained unentitled since the transfer in question was of buildings previously used by the entitled churches for the implementation of their right to exercise the freedom of religion and which could now be reclaimed for the same purpose to the extent of the churches’ real needs.39 According to a provision of the Act,40 the government and the church concerned had the power to conclude an agreement in order to create sufficient material conditions for church activities useful for Hungarian society. This would have provided partial compensation for church-owned buildings nationalized and not returned. This section of the Act was abolished by the Constitutional Court as it would have created discretionary funding of some churches. After the restitution of function, no additional differentiation between the churches was necessary to promote freedom of religion, and thus the possibility of state support for the material independence of churches could not be limited constitutionally to those that lost their property after 1948.41 This means that if the state would provide real estate for churches on a basis other than financial compensation, it could have no right to differentiate between churches.

2. army chaplaincy Early in 1994, the Hungarian government signed an international treaty with the Holy See on setting up an army chaplaincy followed by agreements with the three other “historic” religious communities (the Reformed Church, the Lutheran Church, and the Alliance of Jewish Congregations). In 1997 an evangelical congregation (“Faith Church”) also opened an army chaplaincy. The chaplaincy is maintained by the state and army chaplains have military ranks.42 This institution was challenged before the Constitutional Court as an institutional entanglement violating the separation of church and state, and created discrimination against smaller churches by the “historic” ones. The Constitutional Court reaffirmed that neither the individual nor the collective practice of religion is dependent on any institutional form and even smaller or unreg-

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istered religious communities also have the right to free exercise of their religion in the military. The state has no obligation to set up this institution to further the practice of religion, but it has the right to do so with the consent of the churches concerned (without having this consent the state would have violated the separation clause). The practice of religion is not bound to any institutional framework. The Court requested a statement from the Minister of Defense. This statement refers to a representative survey made in the army on religious affiliations. 62 percent of the members of the army declared themselves Catholic, 15 percent Reformed, 3 percent Lutheran, 1 percent Jewish, while the total percentage of the adherents of the other 54 registered churches was 0.2 percent. About 20 percent did not give an answer or declared themselves nonreligious. Half of the registered churches had no member serving in the military. The Court reaffirmed that “treating the churches equally does not exclude taking the actual social roles of the individual churches into account.”43 Setting up the chaplaincy does not infringe the free exercise of confessions that are not included in this scheme. There was no unconstitutional entanglement, as the chaplaincy has not become an institutional part of the military but works alongside it. (For example, the chaplains with military ranks and uniforms are not entitled to give commands and, on the other hand, the chaplaincy is not subordinate to the Ministry of Defense).44 With regard to the Army Chaplaincy, the state had the right to single out the four denominations that could establish a minimum of adherents. Equality did not mean that congregations should have army chaplains if they have no members in the army (because of their size or their conscientious objection). As the integration of more churches is planned, the fact that smaller communities do not set up chaplaincies does not prevent the larger ones from doing so.

3. media law The public media in Hungary is managed by share-holding companies. The governing bodies of these companies are public foundations. The boards of the Hungarian Television Foundation and the Hungarian Radio Foundation each comprise 21 people appointed by various organs of civil society, like NGOs. The Hungarian Television Public Foundation, which is in charge of a satellite program, consists of 23 members. The Catholic Church, the Reformed Church, the Lutheran Church, and the Alliance of Jewish Communities rotate on one seat in each board. All the other churches also delegate one person to each board together.45 On the one hand, the special treatment of the “four historical churches” has attracted criticism; on the other hand, smaller religious communities that rotate on the other seat represent together less than two percent of the population. Both the small and the big churches can claim that the others are over-represented.

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Public media allocates religious communities time for broadcasting services and other programs. This allocation takes the confessional proportions into account, however, reducing the differences; only 50 percent of airtime is given to the Catholic programs, but 25 percent to Reformed, 12,5 percent to Lutherans and 12,5 percent for all others (these are the Jewish community, the Unitarian Church, the Baptist Church, the Methodist Church, and the Hungarian Orthodox Church). This allocation is based on an agreement of the churches concerned providing a kind of affirmative action for minority churches.

4. funding of religious communities According to the law, not only are the public activities of churches entitled to state support but the churches may be granted state subsidies by the Parliament as well.46 In recent years the amount allocated in the Budget Law for support of the churches has been distributed by virtue of a specific decision of the Parliament, made by a relevant proposal of the Committee for Human Rights, Minorities, and Religion. For the proper specification of the distribution schedules upon the request of the Ministry for Educational and Cultural Affairs, an assessment has been made of the denominational status of the population.47 In the end, the distribution schedules were not adjusted to these proportions. In 1991 and 1992, support was granted to all registered churches that filed the relevant request with the Ministry for Educational and Cultural Affairs. No support was granted to four applicants48 when distributing the 1993 funds. During the subsequent dispute in the Commission, some Members of Parliament allegedly called the excluded churches “subversive sects.” The churches concerned filed a motion with the Constitutional Court to establish the unconstitutionality of the decision and to annul it with reference to § 70/A of the Constitution, which prohibits discrimination. Under the procedure for establishing the unconstitutionality of impugned laws, the Constitutional Court may examine only the constitutionality of legal rules or other legal means of state control. A specific decision of the Parliament, which has no normative character, does not fall within this definition, and accordingly the motion was rejected by the Constitutional Court for lack of jurisdiction.49 One of the excluded churches filed a lawsuit, as it regarded the imputation of “destructive sects” degrading. The Supreme Court stated that these were individual statements by members of Parliament who were free to express their opinion in this way. The “label” did not appear in any legal document.50 Later the Commission elaborated a new practice of the Parliament when distributing these funds: only those religious communities that have both been registered for at least five years while also performing some kind of public activity received money (and are thus entitled to receive public funding under different categories like education or social care).

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Beyond the settlement of ownership in respect of the former properties, which belonged to the churches, the Act on real estate included provisions to make a separate law on financing the churches so they would be able to function.51 The 1994 Government program promised to arrange for such financing through the income tax system. After an agreement with the Holy See solemnly signed in the Vatican on June 20, 1997, the Parliament passed a new law on the funding of the religious and the public activities of churches.52 The new law reaffirmed the guarantees of equal funding for public activities. Furthermore, it opened the possibility of financial compensation in lieu of real estate, which the churches decided not to claim despite their being entitled to do so according to the Act discussed above. Instead of the budgetary contribution to the “other” expenses of churches, commencing from the 1998 tax year taxpayers can decide on the allocation of 1 percent of their income tax. A second 1 percent can be allocated to NGOs (associations and foundations) and public institutions such as museums and theaters. Until 2002, the state guarantees a minimum sum in the event that the tax declarations do not reach a certain amount. The data of the first two years show that only 10 percent of the taxpayers made use of this new possibility. 63 percent of the declarations were to the benefit of the Catholic Church, 20 percent to the Reformed Church, 6 percent to the Lutheran Church, and 1 percent to the Jewish Communities. 9 percent of the declarations (45 000) were to the benefit of 69 further churches. The Faith Church got almost 9 000, the Baptist Church 3 000, the KRSNA-Community and the Jehovah’s Witnesses 5 000 declarations. Orthodox churches, the Baptists, the Adventists, Evangelical Pentecostals are among those who got much less support from the taxpayers than their previous direct support from the budget. Contrary to the funding system introduced in Italy in 1987,53 taxpayers in Hungary decide on the 1 percent of their own income tax and not on a certain percentage of the whole revenue. This leads to considerable difficulties, as 80 percent of the income tax is paid by 20 percent of the taxpayers, which is less than 10 percent of the population. The Constitutional Court did not find the scheme unconstitutional but there was strong dissent.54 This funding scheme treats all registered churches in the same way; however, nonregistered religious communities cannot benefit from taxation benefits, as from now on contributions to foundations with “religious” aims will not enjoy tax deductibility.

5. the defense of minority religions in the criminal law The state—besides providing a legal framework for the operation of the churches—defends the religious phenomenon and the religious communities against external attacks. This is also mandated by international law. The Genocide Convention of December 9, 1948 provides in Article 5 for “effective penalties for persons guilty of genocide.” The International Covenant for Civil and

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Political Rights mandates the prohibition of religious incitement (Article 20). Accordingly genocide is a criminal offence under Hungarian criminal law.55 Incitement for hatred against national, ethnic, racial, or religious groups is punishable too.56 The Violation of the Freedom of Conscience and Religion holds that restricting someone in their freedom of conscience with violence or menace, or impeding someone in the free exercise of their religion with violence or menace, is unlawful.57 Persons assaulting somebody else because he or she belongs or is believed to belong to a national, ethnic, racial, or religious group, or coercing them with violence or menace into doing or not doing or into enduring something, commit a felony.58 These offences are punishable regardless of whether or not the religious group is registered as such.

c. the margins of equality 1. accommodation of religious claims Equal rights of churches means that all communities enjoy equal freedom. The equalization of factual differences is naturally outside the scope of the state’s mandate. Different levels of accommodation are not permissible. It is not because of the Constitution that there are significant differences between religious communities and the more numerous, more established religions maintain certain advantages: It is not a constitutional question that historical churches with a large membership in their organizational structure and their cooperation with the State in many areas facilitate the exercise of religion for their members where the assistance of other (often state) institutions is required, such as in health-care or penitentiaries. The enforcement of the right of exercise of religion may be harder or easier in practice depending on the nature of legal form a given religious community adopts, or whether it chooses to assume a legal form at all. But the existing practical differences in enforcing the right of the freedom of religion remain within constitutionally permissible boundaries as long as they do not derive from discriminatory legal regulations or do not lead to the prevention of anyone’s exercise of his or her religion.59 This could mean for example that the hospital personnel find a pastor for patients demanding spiritual assistance more easily if they are of a more numerous denomination, while other groups can be more difficult to contact, especially if they had no prior contact with the institution. The average walking distance to the place of worship is usually shortest for the adherents of the majority faith but this is certainly not a constitutional issue.

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2. symbolic distinctions of “mainstream” religious communities (a) Catholicism. The size, the international character, and the role of the Catholic Church in Hungarian history result in permanent fear from all other denominations of a (re)establishment of Catholicism in the social presence. The social presence of Catholicism becomes especially visible at occasions like the national holiday of Hungary, the feast of Saint Steven (August 20) who founded the Hungarian state, receiving the crown from the Pope in the year 1000. The solemn procession and the service at the Basilica of Budapest are attended by most dignitaries of the state. The Agreement between the Republic of Hungary and the Holy See signed on June 20, 1997 on funding received both polite and aggressive criticism from almost all other religious groups. While representation by the Reformed Church meant that the Catholics gave up some important church positions, thus also weakening their position, representatives of smaller churches voiced their general dissent against the fact and the content of the Agreement. The Catholic Church has a hierarchical structure with, of course, the Pope at the apex.60 In a number of issues the national churches are not competent, but the Holy See or the Pope is. A state respecting the religious freedom of Catholics has to acknowledge the special structure of the Catholic Church. The international status of the Holy See and the sovereignty of the Pope are generally accepted in international law. “Inequality” in this respect is not a special feature of the Hungarian system. (b) Historic churches. Hungarian law and practice have developed a kind of parity between the “historic” churches. The government decree on the army chaplaincy speaks about “historic” churches when referring to the agreements concluded.61 According to the Constitutional Court decision on this matter, the term “historic” refers only to the historic character of these churches and is not discriminatory per se.62 On the occasion of symbolic events as well as during church-state negotiations, the Catholic, the Reformed, the Lutheran Churches, and the Alliance of Jewish Congregations are invited. For example, at the funeral of Prime Minister Antall in December 1993, representatives of these congregations were invited to take part in the service with public prayers; but note that the service itself was Catholic, following the faith of the Prime Minister. At negotiations on various topics, like funding, for example, leaders of these religious communities are also invited together (although this is not the case for international negotiations with the Holy See). Certainly the various Orthodox Churches or the Unitarian Church are “historic” as well, but they do not receive the kind of special treatment that the “four big” receive. (c) “Sects” The term “sect” is regarded as pejorative in Hungarian. There is a lack of neutral and factual information on religions and religious communi-

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ties63 that are not known by the general public. The information that the churches provide about themselves or each other is not the most trustworthy source. A pioneer enterprise in this respect was made by the sociologist Istva´n Kamara´s who wrote a book on the Faithful of Krishna Consciousness in Hungary.64 Kamara´s—a Catholic himself—carried out sociological research and presents a sociography of this group. The book was favorably reviewed by Krsna-lika devi dasi (Krisztina Danka) and Miklo´s Tomka, the most famous religious sociologist in Hungary. Representatives of this religious community say that there has been no publication on ISKCON on this level worldwide.

IV. C ONC LUSION Minority religions do not enjoy any special protection in Hungarian law, but they do enjoy the protection of freedom of religion and they have the same right to manifest their religion both as individuals and as groups. Religious convictions should not lead to discrimination. Equal freedom should be ensured for all. Granting privileges on religious or political preferences is not permissible, but the differences in the social reality can be taken into consideration. The Hungarian model of church-state relations that emerged in the course of the nineties combines two characteristic features with respect to the equality and differentiation of churches: on the one hand all churches meeting a minimum of formal requirements have the same legal status. On the other hand the law has found many ways to take the highly different reality of churches into consideration for many other practical respects. The agenda for the coming years is to consider how far the distinctions drawn between different religious groups, that is, between different social realities, is permissible without infringing this freedom or crossing the threshold of unfair discrimination.

endnotes 1. Act IV/1990, The Freedom of Conscience and Religion, and the Churches, s. 3.2. 2. Decision 74/1992. (XII. 28.) AB, ABH 1992, 310. 3. Miklo´s Tomka, Csak Katolikusoknak 37 (1995). 4. Kevin Boyle and Juliet Sheen (eds.), Freedom of Religion and Belief: A World Report 342 (London: Routledge, 1997). 5. For a comparative overview of the attitudes, see M. Tomka and P. Zulehner, Religion in den Reformla¨ ndern Ost (Mittel) Europas (Ostefeldern, 1999). 6. Margit Balogh and Jeno¨ Gergely, Egyha´ zak az u´ jkori Magyarorsza´ gon 1790–1992 (Churches in Hungary in the Modern Age 1790–1992) 165–70 (1996). 7. Decision 4/1993. (II. 12.) AB, ABH 1993, 48.

Hungary 361 8. Constitution, s. 60.3. 9. Act IV/1990, s. 15.2. 10. Act IV/1997, s. 8–9; Decision 8/1993. (II. 27.) AB, ABH 1993, 99, 101. 11. Act IV/1990, s. 15.3. 12. Decision 8/1993. (II. 27.) AB, ABH 1993, 99, 101. 13. Decision 4/1993. (II. 12.) AB, ABH 1993, 48, 54. 14. Act IV/1978. (Criminal Code), ss. 155, 174/A., 174/B, 269. Pe´ter Erdo¨, Le minoranze religiose nel diritto ungherese, 1 Quaderni di Diritto e Politica Ecclesiastica 275, 280 (1997). 15. Act IV/1990, s. 8. 16. Act IV/1990, s. 13. 17. Act IV/1990, s. 9. 18. Decision 8/1990 (II. 27.) AB, ABH 1993, 99, 100. 19. For example, the Criminal Code refers to “groups” using a term not bound to any organized form: see above n. 14. 20. Act IV/1990, s. 9.1(a). 21. Decision 8/1993. (II. 27.) AB, ABH 1993, 99, 102. 22. Act IV/1990, s. 17.2. 23. Decision 8/1993. (II. 27.) AB, ABH 1993, 99, 100. 24. Leopoldi II. decr. a. 1790, articulus 26. 25. Act XX/1848. Accepted religions were: Latin, Greek and Armenian Catholics, Reformed, Lutheran, Unitarian, Serbian and Romanian Orthodox. 26. Act XVII/1867. Jo´zsef Schweitzer and Ga´bor Schweitzer, A Magyarorsza´gi/ Zsido´k e´s az Izraelita Felekezet Joga´lla´sa´nak Alakula´sa (The Development of the Legal Status of Jews in Hungary and that of the Jewish Denomination) in Lajos Ra´cz (ed.), Felekezeti Egyha´ zjog Magyarorsza´ gon 229 (1994). 27. Act XLIII/1895 on the free exercise of religion. 28. Act XXXIII/1947. 29. Act IV/1990, s. 15.3. 30. Decision 4/1993. (II. 12.) AB, ABH 1993. 48, 53. 31. Ibid. The Hungarian Decision uses the same language as the Federal Constitutional Court of Germany, BVerfGE 19, 1 (8). 32. T/9473. 33. A century is the time required by law for a national or ethnic group to be acknowledged as a minority and to obtain special rights as a national or ethnic minority: Act LXXVII/1993, s. 1.2. 34. T/5441. 35. Act XXXII/1991. 36. Act CXXV/1997. 37. Decision 4/1993. (II. 12.) AB, ABH 1993, 48. 38. This allegation reappears even in recent statements: see Tibor Ruff, 2 Fundamentum 59 (1997). 39. Decision 4/1993. (II. 12.) AB, ABH 1993, 48, 66. 40. Act XXXII/1991, s. 15. 41. Decision 4/1993. (II. 12.) AB, ABH 1993, 48, 67.

362 b a la´ z s s cha nda 42. Government Decree 61/1994. (IV. 20.) 43. Decision 4/1993. (II. 12.) AB, ABH 1993, 53; 970/B/1994. AB, ABH 1995, 739, 743. 44. Decision 970/B/1994. AB, ABH 1995, 739. 45. Act I/1996, s. 56 (1) b)-c); (2) b)-c). 46. Act IV/1990, s. 19.2. 47. See data from the table set out in I.A, second column. 48. Unification Church, Jehovah’s Witnesses, Community of the Faithful with Krishna Consciousness (“ISKCON”) and the Church of Scientology. 49. Constitutional Court Resolution 439/B/1993 AB, ABH 1993, 908. 50. Supreme Court Pfv. IV. 22.499/1995. in BH 1997. 276. 51. Act XXXII/1991, s. 23. 52. Act CXXIV/1997. 53. Silvio Ferrari, Staat und Kirche in Italian in Gerhard Robbens (ed.), Staat und Kirche in der Europa¨ ischen Union 185, 199–202 (1995). 54. Decision 10/1998 (IV. 8.) AB, ABH 1998, 107, 115. 55. Criminal Code 155. 56. Criminal Code 269. 57. Criminal Code 174/A. 58. Criminal Code 174/B. s. (1). 59. Decision 8/1993. (II. 27.) AB, ABH 1993, 99, 100. 60. Codex Iuris Canonici can. 331. 61. Government Decree 61/1994 (IV. 20.) Korm. 62. Decision 970/B/1994. AB, ABH 1995, 739, 743. 63. This would be in compliance with Recommendation 1178 (1992) on sects and new religious movements by the Parliamentary Assembly of the Council of Europe. 64. Istva´n Kamara´s, Krisna´ nsok Magyarorsza´ gon (1998).

part 3 Case Studies B. Western Europe—Comparative Perspectives

Chapter 11 e u r op e a n p a r l i a m e n t a r y e n q u e t e c o m m issi ons: j u s t i fi c a t i o n o f a t w o - t i e r e d s y s t e m of r e l i gi ou s f r e e d o m s Carolyn Wah

I. INTRODU CTION Every member nation of the European Parliament has constitutional provisions protecting the free exercise of religion.1 In addition, the European Convention for the Protection of Human Rights and Fundamental Freedoms also guarantees each individual’s right to the freedom of religion, including the freedom to manifest religion in public or private.2 Despite these clear provisions, however, the free exercise of religion for many European citizens is in jeopardy. This situation has not arisen from direct legislative attacks on well-established precedents but rather from a more subtle process. Rather than applying traditional constitutional protections universally to any religious belief and to all religious organizations, several major religions, governmental agencies, anticult groups, and mental health professionals are advocating a redefinition of religion in order to protect citizens from the influence and control of what some allege are destructive sects and cults. Pointing to religiously motivated suicides, such as the mass suicide at Jonestown, Guyana, and homicides involving minority religious groups, some anticult groups and government officials have demanded that government take a more active role in protecting people from deceptive religions and psychogroups.3 Sensitized by sensational media coverage, theologians, mental health

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care professionals, anti-cult experts, secular humanists, and government agencies have entered into a process that could lead to a subtle redefinition of “religion,” which would limit the protections historically associated with the free exercise of religion in Western Europe. It is foreseeable that this redefinition of religion and religious freedoms will continue to afford major mainstream churches the full rights, privileges, and immunities that are associated with traditional parameters of religious freedom, while simultaneously denying minority religions and new religious movements both equal legal status for their organizations and equal protection for their adherents. Thus, in spite of very clear and unequivocal constitutional protections, some minority religious organizations and their adherents in Europe are faced with the possibility that protections offered by these broad statutory provisions will not apply in the future to minority religious organizations or to their individual adherents. How can such classification be accomplished in the face of clear statutory and constitutional protection? Is there a decline in the general popularity of the concept that individuals have a right to choose how to express their belief or non-belief in relation to the object of their worship? What is the appropriate role of democratic government vis-a`-vis religious institutions? This is not a simple problem. The process of reclassifying religious organizations is occurring on various levels. There is a clear legal procedure in place to accomplish this goal. There are also theological, political, psychiatric, and sociological programs that move, if not in concert, at least in support of and in coordination with the legal procedure. Consideration of all these strategies and activities is much more comprehensive than this single essay can adequately cover. Thus, while mention of other strategies may supplement or explain the legal developments, the focus here will be on the legal procedure now active in Europe that could foreseeably strip minority religions of the constitutional protections that are now granted to all religious organizations and their practitioners.

II. HISTORY In the spring and early summer of 1982, the European Parliament considered reports concerning the activities of Sun Myung Moon’s Unification Church.4 In response to these reports, the Legal Affairs Committee commissioned the Committee on Youth, Culture, Education, Information and Sport to investigate and prepare a report. On September 28, 1982, Mr. R. Cottrell was appointed rapporteur of the Committee. In April 1984, the Committee submitted its report “on the activity of certain new religious movements within the European Community.”5 The establishment of this committee is not an isolated event. There have been various meetings by educators and government agencies to discuss the

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emergence of new religions.6 In the late 1970s, the United States and Canada, troubled by complaints from parents, clergymen from traditional religions, politicians, and educators, held parliamentary-level investigations to study the presence and activities of sects, cults, and psycho-groups operating within their respective borders.7 Interestingly, both commissions approached the question of “new religions” as if it were a new and unique problem. After exhaustive inquiry and months of research and analysis, however, the United States and Canadian reports concluded that new religious movements are a normal and predictable feature of the human experience and adequate civil and criminal laws already existed for the protection of the citizenry. No further governmental action was pursued since neither government felt that the role of a democratic country was to monitor the private sphere and the personal decisions of the population. The Cottrell Report identified specific organizations operating as religious organizations whose activities had created causes for concern. In particular, the Cottrell Report mentioned the mass suicides at Jonestown, the Unification Church’s controversial recruiting techniques known to researchers as “love bombing,” and the practices of a group lead by David Moses known as the “Children of God,” whose recruitment techniques involve the use of young females as sexual lures. Other organizations such as the Church of Scientology, Sannyasins, and the International Society of Krishna Consciousness were also mentioned. In general terms, the Cottrell Report raised questions about the activities of the “new religions” allegedly involving brainwashing and resulting in family breakups, and the misuse of religious privileges such as tax benefits and charity status. Although the Cottrell Report opened with an acknowledgment that the individual’s right to “full freedom of religion and opinion”8 was guaranteed by the member states, and that the European Parliament had “no right to judge the value of either religious beliefs in general or individual religious practices,”9 the report imposed eleven criteria to be adopted by member states in evaluating the legitimacy of religious practices within their borders:10 (a)

(b) (c) (d) (e)

Persons under the age of majority should not be induced to become a member of a movement or to make a solemn long-term commitment that will determine the course of their lives; There should be an adequate period of reflection on the financial or personal commitment involved; After joining an organization, contacts must be allowed with family and friends; Members who have already commenced a course of education should not be prevented from completing it; The following rights of the individual must be respected;

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• •

The right to leave an organization unhindered; The right to contact family and friends in person or by letter and telephone; • The right to seek independent advice, legal or otherwise; • The right to seek medical attention at any time; (f) No one may be incited to break any law, particularly with regard to fund-raising, for example, by begging or prostitution; (g) Movements may not extract permanent commitments from potential recruits, for example, students or tourists, who are visitors to a country in which they are not a resident; (h) During recruitment, the name and principles of the organization should always be made immediately clear; (i) Such movements must inform the competent authorities on request of the address or whereabouts of individual members; (j) New religious movements must ensure that individuals dependent on them and working on their behalf receive the social security benefits provided in the member states in which they live or work; (k) If a member travels abroad in . . . the interests of a movement, it must accept responsibility for bringing the individual home, especially in the event of illness; (l) Telephone calls and letters from members’ families must be immediately passed on to the member; (m) Where recruits have children, movements must do their utmost to further their education and health, and avoid any circumstances in which the children’s well-being might be at risk. While at first glance, these criteria appear reasonably calculated to protect unsuspecting or incompetent citizens, the Cottrell Report suggested that both the traditional role of government toward matters of conscience and religion, and the rights of all individuals and their religious organizations, must be subordinated in order to protect the potential victims of unscrupulous religious organizations. The Cottrell Report explained: We are dealing not with any attempt to proscribe or control religious beliefs or indeed the privacy of belief but with matters of human rights. If individuals become social and mental wrecks through the result of involvement, should society turn its back? If people are parted from their sons, daughters or family and friends, can that be ignored? Equally, if they are parted from their money or property as the results of misrepresentation or false promises, can there be no response that will prove adequate?11 In conclusion, although the Cottrell Report acknowledged “that existing legal measures are sufficient in each member State,”12 it also recommended

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the establishment of investigatory Parliamentary Committees in each member country. Unfortunately, the report failed to prescribe specific guidelines, clear legal safeguards, or standard procedures for these investigations. As a result, member states of the European Parliament established independent committees employing distinct procedures which fail to provide “due process”13 safeguards for participants who are summoned to respond to closed session questioning and who are subjected to demands for documents and information about their beliefs, membership, and internal protocols. Committee members are often political appointees with partisan agendas lacking backgrounds in law, theology, psychology, or social sciences.14 Some member country committees conclude treatment of certain matters without ever contacting the organization that is the subject of the investigation. Other committees conduct closed hearings, refusing to allow the subject organization the right to obtain a copy of the transcript, the presentation of its own witnesses, or the right to rebut unfavorable reports. It is also notable that only selected minority religious organizations have been targeted for investigation, the assumption being that the “big” wellestablished mainstream churches are beyond reproach and that the only dangers to society lie within the new and smaller religions. The Committee on Civil Liberties and Internal Affairs of the European Parliament, in amending its draft report on Cults in the European Union on November 11, 1997, stated that the attraction of cults should be seen as the symptom of a profound social, moral, and civic disquiet in the light of a longing for a meaning and purpose in life, which for some people in today’s scientific and technological society marked by individualism and the erosion of the traditional social fabric is no longer being satisfied by the traditional churches. On the basis of the European Parliament’s recommendation, several member countries, including Austria, Belgium, France, and Germany, have concluded investigations and preliminary studies. These developments indicate that Europe is on its way toward a two-tiered religious system where the “big” well-established churches enjoy an enhanced status worthy of full governmental protection while the minority or “new” religions languish in a second-class status. Known and well-established religions, such as Jehovah’s Witnesses,15 who have been active in Europe for the last hundred years, are now suddenly marked as “dangerous”16 and are left without legal recourse to redress such designations.

I II . TH E ENQU ETE C OMMISSION INFORMATION GATHERING PROCESS The information gathering process has varied between the commissions. The Belgian House of Representatives established the Commission on March 13, 1996, with a mandate “to elaborate a policy in view of combating the illegal practices of the sects and the dangers they represent for the society and for

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individuals, in particular minors.”17 The information-gathering stage included closed hearings involving members of selected religious organizations, as well as public hearings on various subjects. For example, on March 13, 1997, there was a public hearing in Germany on pedagogical and psychological questions in relation to the position of children in “So-Called Sects and Psycho-Groups.”18 The German Enquete Commission originally assembled on June 12, 1996.19 Sessions of the Commission have included both present and former members of various sects and psychological groups.20 Reports from information centers formed by parents have been considered, and sessions have involved discussion about the constitutional guarantees of religious freedom with experts in the fields of fundamental rights and church rights.21 Other hearings have been held which have focused on individuals who have dropped out of various religious groups.22 Their investigations have included visits to headquarters of Jehovah’s Witnesses and Universal Life23 as well as the presentation of written questions to be answered by the religious groups. In Belgium, the Commission held 58 meetings and heard 136 witnesses, including present and past members of new religious movements, representatives of associations in defense of victims, as well as representatives of new religious movements who requested an audience with the Commission.24 It is interesting to note that one common criticism of all the European Parliamentary Commissions’ inquiries is that the voices of the “anti-cult” movement are so dominant. Willy Fautre´ of Human Rights Without Frontiers has suggested that representatives from the academic world, including university professors, sociologists, and historians of religion, are not being invited to participate in the European debates and are being excluded from the decisionmaking process.25 Liliane Voye´, Professor of Sociology at the Catholic University of Louvain, has also been critical, writing that the commissions have created “a stench of misdeed, indeed of crime”26 by conducting their inquiries in a partisan, subjective, and biased fashion.

I V. ROLE OF THE MAJOR CHURCHES IN THE ENQU ETE PROCESS One disturbing feature which challenges the Commission’s claim that it does not intend to evaluate the merit of religious beliefs among various groups is the strong influence of established churches combined with the reliance on the testimony of both former members of small religious movements and anti-cult experts. The Ontario Report made an interesting observation in passing in this respect, but failed to explore the extent of the problem in depth. The report indicated that this type of inquiry into new religions and their activities is an example of the “clash-of-ideologies,”27 and suggested that those in dominant religious organizations have always followed a classic tradition of castigating

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minorities for what they perceive to be the failings of society. Just as young people consistently reject the conventional lifestyles of their parents by joining radical groups, new religious movements spring up in response to the disappointment, frustration, and alienation that members have experienced among the larger, well-established religious communities. Is it possible that major churches are improperly exerting influence through parliamentary Enquete commissions in order to eliminate any competition in the spiritual sphere, thus assuring that its dwindling membership and control will remain intact and dominant in the culture? Marat S. Shterin pointed to an example of a dominant church’s improper influence on government authority in his report responding to Alexander Dvorkin’s report to the Germany Enquete Commission on September 21, 1997. Shterin argued that the Russian Orthodox Church had been the “main driving force” behind the changes to the 1990 Freedom of Religion Act.28 That Act had helped to remove total state control over religious life, fulfilling the provisions of the European Convention on Human Rights signed by Russia prior to acceptance into the European Community. After the 1990 law was signed, it received significant criticism from the Russian Orthodox Church for “its lack of provisions for the protection against competition and the dangers of ‘totalitarian’ sects.”29 Thus, Shterin asserted that the new law on freedom of conscience and religious association was supported because of the Russian Orthodox Church’s growing concern for its dwindling membership. Shterin explained the Church’s concern, quoting from a 1994 statement by the Archbishops Council of the Russian Orthodox Church: “[These sectarian] views destroy the traditional organization of life that has been formed under the influence of the Russian Orthodox Church. They destroy the spiritual and moral ideal that is common to all of us and they threaten the integrity of our national consciousness and our cultural identity.”30 The Russian Orthodox Church was particularly enraged by the new religious movements, which have active proselytizing ministries because the Church viewed the Russian territory as the “canonical territory of the Russian Orthodox Church.”31 A similar example is illustrated by the conflict between the Evangelical Lutheran State Church in Bavaria and the lesser-known religious association known as Urchristen im Universellen Leben (First Christians of Universal Life). The First Christians of Universal Life recently applied for relief against the Evangelical Lutheran State Church in Bavaria, claiming deprivation of rights as a corporation under public law. The application presented facts and alleged that the Evangelical Lutheran State Church was working toward its goal to have the First Christians of Universal Life’s status as a corporation under public law revoked. The application referred to the early history of the Evangelical Lutheran State Church and its founder Martin Luther, who called upon followers to beat opponents to death, incinerate Jewish synagogues, and to give displeas-

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ing preachers over to the executioner. First Christians of Universal Life alleged that the Evangelical Lutheran State Church has continued in its anti-Semitic and violent opposition to dissenters, and charged: They fight against those of another faith and their families like enemies deserving of death. Every new religious movement active outside the church is incomparably stigmatized as a ‘dangerous sect’, casting its members out of society and possibly bringing their economic means for existence to a halt. Should they establish a few businesses, they are immediately classed as ‘a dangerous economic empire’. If they set their own ordinance for their religious way of life, it is denounced as a ‘totalitarian system’ by church representatives, although each statute of an order contains requirements of a far more rigid nature.32 The complaint pointed to the Evangelical Lutheran State Church’s establishment of a permanent position of “sect investigator.” The first man to hold this office, the late priest Friedrich Wilhelm Haack, is alleged to have written in a letter dated April 30, 1986: “If you’ve set your bet of inquisition on me, you’re right,” adding that “the inquisition has also become more modern.” The complaint alleges that in Hettstadt near Wu¨rzburg, from the beginning of January 1988, Haack caused inhabitants who lived in a settlement of Universal Life members to experience fear and shock: “There was the threat of ‘outright war conditions’, the village would be confronted with ‘special species of humans’ who ‘pose a strong radicalistic potential’ and consist of ‘rather few moral qualities’ who ‘are intruding into the village,’ ‘building its nest,’ and exercising ‘group terror.’ ”33 Haack’s successor, Dr. Wolfgang Behnk, has been carrying out similar work since 1991. It is alleged that he periodically spreads rumors that members of Universal Life could and would commit suicide in large numbers. When a religious group in Waco, Texas, took their lives in 1993, Behnk warned the public that mass suicide could one day also happen to the members of Universal Life. One media report coined his expressions as “Waco in Lower Franken.” These assertions were repeated in March 1997 when 50 members of a new religious movement took their lives in San Diego, California. Allegations asserted that the church intentionally attempted to link Universal Life with Satanism, psycho-cults and other dangerous developments. Massimo Introvigne, director of the Center for Study on New Religions (CESNUR), offered another example in a recent press conference in Washington, D.C., on December 1, 1997. He explained: The Evangelical Pentecostal Church of Besanc¸on (a town in northeast France) is an example of how a group whose theology is clearly mainline

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is marginalized after an encounter with an anti-cult movement. French anti-cultists have labeled this church and many other evangelical churches with concerted theology as cults because they do not belong to the World Council of Churches (WCC). The Belgium parliamentary report takes quite literally the anti-cult recommendation to talk to every Christian group not endorsed by the WCC. Its list includes Seventh Day Adventists, Amish, Assemblies of God, Calvary Christian Center, Plymouth Brethren, the ‘Charismatic Renewal,’ in general, and number of small independent Pentecostal churches.34 In 1993, the Vatican issued a 125-page document entitled “The Interpretation of the Bible in the Church.” The document was prepared by the Pontifical Biblical Commission, a group of scholars who assist the Pope in the study of Scriptures. Beginning with a clear statement that the interpretation of all Scripture is “openly subject to the judgment of the Church,”35 the Commission strongly criticized fundamentalism as “anti-Church” giving little weight to the creeds, the doctrines, and the liturgical practices, which have become part of the Church tradition, as well as the teaching function of the Church itself. The Commission concluded pointedly that “the fundamentalists’ approach is dangerous. . . . Fundamentalism actually invites people to a kind of intellectual suicide.”36 Who are these dangerous fundamentalists criticized by the Catholic Church? Reference is made directly to Jehovah’s Witnesses37 and to “any religious group who believes that the Bible, being the Word of God [is] inspired and free from error, [and] should be read and interpreted literally in all its details.”38 Although the “Interpretation of the Bible and the Church” may be viewed as a theological discussion on the role of the Bible and the Church, should it be seen as evidence of active concern by a major church that new religions are reducing their share of parishioners? Jesuit F. Cavalli explained in the Catholic journal La Civilta` Cattolica: The Catholic Church is convinced of her divine right, as the one true church, to claim freedom of action for herself alone, so that this privilege be reserved exclusively for truth and be denied to error. As for other religions, the Church will never take up the literal sword against them but she will make use of legitimate channels and worthy means to see that they are not allowed to spread their false doctrines. Consequently, in a predominantly Catholic State, the Church will insist that erroneous beliefs be denied legal recognition and that, if certain religious minorities persist, they should be allowed a mere de facto existence and be denied the possibility of spreading their beliefs. In cases where existing circumstances render a stringent application of this principle impossible, either due to government hostility or the numerical consistency of dissident

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groups, the Church will try to obtain the greatest concessions for herself and will tolerate the lawful existence of other cults as a lesser evil. In some countries, Catholics will themselves be forced to sustain the absolute right to freedom of religion and resign themselves to coexistence with other cults where they alone should have the right to thrive.39 On one occasion, Professor Guido Verucci, a professor of contemporary history, observed that the Catholic Church took a “bitterly intolerant stance toward small non-Catholic minorities, particularly Pentecostals and Jehovah’s Witnesses [which] . . . led to a series of oppressive and persecutory actions on the part of the Police.”40 The influence of the larger churches on European government functions and politics is well documented and a significant factor in the Enquete process.

V. ROLE OF FORMER MEMBERS OF RELIGIOUS MOVEMENTS IN THE ENQUETE PROCESS The German Enquete Commission Interim Report appeared to accept the testimony of disgruntled former members of new religious movements as credible evidence. It appears from the reports, however, that very little investigation was done into the individual backgrounds of these former members and so the credibility of their presentations should be questioned. Even the Green Party’s comments note that these former members are hardly a reliable source of objective input. In contrast, the Ontario Report investigated the backgrounds of former members who were interviewed in its study. Of the former members interviewed, 25 percent had been in the organization less than six months, and none had remained with the organization for more than three years. These important facts no doubt helped the Commission to put their comments in an accurate perspective. It is no surprise, then, that sociologist Bryan R. Wilson warned: The disaffected and the apostate are in particular informants whose evidence has to be used with circumspection. The apostate is generally in need of self-justification. He seeks to reconstruct his own past to excuse his former affiliations, and to blame those who were formerly his closest associates. Not uncommonly the apostate learns to rehearse an ‘atrocity story’ to explain how, by manipulation, trickery, coercion, or deceit he was induced to join or to remain within an organization that he now forswears and condemns. Apostates, sensationalized by the press, have sometimes sought to make a profit from accounts of their experiences in

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stories sold to newspapers or produced as books (sometimes written by ‘ghost’ writers).41 More recently Professor Massimo Introvigne, in his essay “Religious Liberty in Europe” observed: Currently in Western Europe anti-cult movements (particularly the French Association for the Defense of the Family and the Individual (ADFI), whose offices also serve as European headquarters for FECRIS, a Europe-wide federation of anti-cult movements) experience a degree of institutional support unknown in the United States. These well-organized anti-cult movements—particularly in France, Germany and Belgium— have successfully introduced the mind control model to the press and to political bodies unfamiliar with the fact that this model has been discredited in the United States. When scholarly criticism of the mind control model is brought to bear against the anti-cult movements, it is dismissed on the basis of the testimony of ‘former members.’ In some countries, including France, anti-cult movements have considerable resources and operate with the help of taxpayers’ money. They are responsible for spreading misleading information about a number of religious minorities.42 One form of an “anti-cult” crusade is illustrated by the actions of Mrs. Jutta Birlenberg, who is the founder of the German association “Kids e. V.,” which translates as “Children in Destructive Cults.” For some time she set out to actively fight against Jehovah’s Witnesses by approaching politicians and governmental offices and making false accusations about the teachings and beliefs of Jehovah’s Witnesses. In some child custody cases involving Jehovah’s Witnesses, she provided slanderous information to the attorney representing the non-Witness parent in an effort to make the Witness parent appear to be unfit simply because he or she was one of Jehovah’s Witnesses. In a live broadcast on May 2, 1997, Mrs. Birlenberg appeared on “Guten Abend” (Good Evening), a program on RTL West Live, in which she alleged that the WachtturmGesellschaft (Watch Tower Society) directed Witness mothers to accuse nonWitness fathers of sexually abusing their children as a strategy in getting custody of the child in a divorce proceeding. In response the Wachtturm-Gesellschaft sought the retraction of the slanderous and deliberately incorrect accusation through a civil action as well as through the public prosecutor’s office. The public prosecutor declined prosecution. The civil case proceeded. The trial court, after considering these and several other slanderous allegations, concluded that Mrs. Birlenberg would be

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liable for a fine of $10,100 DM if she were ever to make such allegations against either the Jehovah’s Witnesses or Wachtturm-Gesellschaft. Mrs. Birlenberg accepted the offer made by the trial judge.43 Anti-cult experts also had a significant voice in the French hearings. The French Parliamentary Report notes that the National Union for the Association for the Defense of the Family and the Individual (UN-ADFI), as well as the Center for Documentation, Education and Actions Against Mental Manipulation (CCMM), have significant involvement in the Enquete proceedings.44 It is no secret that the CCMM’s major participator, Roger Ikor, believes that his young son died as a result of being a victim of a sect. Massimo Introvigne, director of CESNUR, spoke at a news conference in Washington, D.C., on December 1, 1997. At that time he indicated that a primary concern is the public sponsorship enjoyed by private anti-cult movements in Belgium, France, and Germany. He explained: “It is abundantly clear that these movements are responsible for spreading misleading and often simply false information about religious minorities, and an intolerant worldview. . . . They need to be exposed as pseudoscience.”45

VI. ENQU ETE C OMM ISSION FINDINGS The French Parliamentary Report on the Commission of Investigation on Sects was published on December 22, 1995. The French Report’s conclusion included a list of “dangerous” sects and cults. On May 7, 1997, the Belgium Chamber of Representatives approved twenty-eight pages of the conclusions and recommendations from the 670-page Belgian Parliamentary Report. The German Interim Report appeared on June 26, 1997, and a final report was presented on June 18, 1998. All four reports opened with a recognition that each country’s constitution protects free exercise of religion. All agreed that the phenomenon of new religions and cults is difficult to define or quantify. The German report, in particular, specifically disapproved of the term “sect” maintaining that such a term did not appropriately characterize religious groups and drew attention to potential conflicts. The German Commission preferred the term “new religious movements” (NRM) and applied this expression in a collective sense to include non-religious psycho-groups.46 The size of the individual organizations examined ranged from less than 50 to more than 100,000. All of the reports share similar findings and conclude that: 1)

There is not enough information available to make any hard rules or conclusions about sects and psycho-groups, and more information is needed;

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2) 3) 4) 5)

Some groups appear to be benign while other groups appear to be potentially dangerous; Existing laws may be sufficient to protect the community from the danger; The government is justified in categorizing some new religions for closer observation and scrutiny; and Increased governmental vigilance including infiltration is justified.

The Belgium Report included a list of 189 religious organizations and explained that the presence of an organization on the list did not mean that it was a sect or was dangerous. Four Catholic groups were included on the list (Opus Dei, l’Oeuvre, Sint Egedius Gemeenschap, Ster Van David) and this caused a strong objection from the Catholic Church. The debate has broadened to include the Church of Scientology and others. The Belgium Report noted that Belgium Security had already organized an international seminar in Brussels on December 11–13, 1996, to coordinate the information services from twelve Western European countries concerning harmful sectarian organizations.47 The German Report focused on the application of existing laws and suggested that modifications in association law and tax law should be considered as a means of controlling religious associations and nonprofit associations.48 The responses to these commissions’ findings have been direct and condemnatory. Richard Singelenberg, a social anthropologist at the University of Uttrecht, responded to the Belgium Report thus: Aside from these bizarre statements, the report bulges with suggestive utterances such as ‘there have presumably been fatal casualties, scandalous sex has presumably been perpetrated, leaders have presumably been involved in sale of weapons.’ Two decades of religious sociological research, which for the most part has demythologized fancied sectarian atrocities, was declared null and void by the committee by half a page of argument. This discipline allegedly concentrated itself only on the ‘doctrines’ of the movements but stayed clear of the excesses. This ridiculous sketch gives rise to the query as to whether the members of this committee ever went so far as to probe at least skin-deep into this field of study. Were that the case then they might have become aware of findings indicating that joining a religious group is much less a result of manipulation techniques of sinister gurus, but is likely much more so a principal indication of family or marriage problems. Or could it be that the present religious systems are viewed by a hosts of young people as being petrified strongholds which do not possess the ability to provide adequate answers to

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pressing life’s questions. In the light of this new religions are more of a challenge than a threat.49 In these public hearings a variety of experts were summoned to participate. Just as there are questions concerning the expertise of the commission members themselves, reviewing a list of the experts raises similar questions concerning their scholastic and professional credibility. For example, the public hearing on March 13, 1997, on pedagogical and psychological questions related to child rearing included Kurt-Helmuth Eimuth, author of Children of Sects. Richard Singelenberg has published a review on Mr. Eimuth’s book and offered these comments: The popular literature on the subject of ‘religious movements’ (or evaluated as ‘sects’ or ‘cults’) is full of negative ideas and cliche´s of social stigmas. Often, these groups are accused of overstepping social-cultural norms, which is thought to have a disadvantageous effect on the wellbeing of the concerned individuals. This type of writing is characterized in summary by the term ‘anti-cult’ literature. . . . The book Children of Sects clearly belongs in the classification of the so-called ‘anti-cult’ literature.50 Eimuth quotes extensively from anti-cult sources. Regarding this, Richard Singelenberg concludes that Eimuth has written a book that ignores scientific analysis and a body of scientific research on these subjects. The book Children of Sects has its other critics. The corporate agency of Jehovah’s Witnesses in Germany, Wachtturm-Gesellschaft, filed a successful suit for libel against Eimuth for statements he made in Children of Sects.51 Although Eimuth has agreed to withdraw the statements in subsequent publications and desist from making these false statements in public, members of the Commission, such as Renate Rennebach, continue to quote from Eimuth as an authority on the lifestyles of children in new religions and of Jehovah’s Witnesses in particular.52

VII. GOVERNMENT RESPONSE TO THE ENQU ETE C OMMISSION On September 11, 1997, Maria Berger, Rapporteur of the Committee on Civil Liberties and Internal Affairs, issued a “draft report on cults in the European Union,” that “regards the existence and the activities of cults as insignificant or unproblematic, and regards the present legal instruments as sufficient and rejects specific anti-cult legislation.” In the draft report, Berger recommended that no further action be taken to categorize organizations and that no for-

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mal list of cults should be prepared or distributed. Her opinion has been challenged by several European and anti-cult groups. Viviane Reding and Michele Lindeperg suggested two separate amendments indicating that cults do not represent a significant danger to democratic institutions and asking for the establishment of a European Union information office on cults so that better rules could be promulgated to “protect consumers of services offered on the psychological services market.”53 Of the European countries represented in the European Parliament, only Austria has an active law that stratifies churches into acceptable and probationary groups. Prior to 1997, official recognition of a religion was granted according to an 1874 law, but in the past 120 years only eight churches and religious communities had been legally recognized under this.54 On December 3, 1997, the Austrian Parliament enacted a new law entitled “Federal Law about Legal Personality for Religious Confessional Communities.”55 Closely resembling the recent Russian legislation, in essence this new law provides for a two-tier classification of religions. The legislation imposes new requirements for recognition according to the law of 1874. However it also permits religions to be granted provisional recognition as a religious confessional community, which allows the religious community to function within the country of Austria. The legislation creates a ten-year provisional recognition period, after which the organization may apply for full recognition. Broadly speaking, the provisions of the new legislation recognize established mainstream religions and require new religious movements to pursue a course of registration if they establish that they have been active, in existence, and recognized in the country for the prior fifteen years. In Russia, similar legislation establishes a fifteen-year probation period for those religious associations which cannot submit proof of their existence on Russian territory for fifteen years.56 In this period the religious association is in legal limbo, during which time it can be subject to scrutiny and severe regulation. Various European governments have used the findings of their Enquete commissions to justify monitoring new religious movements. The French government has formed a watchdog body to scrutinize the activities of new religions within its borders, and the police intelligence branch has added cult specialists to its ranks. The Bavarian and Belgian Governments have decided to deny Church of Scientology members civil service positions. The City of Brussels has publicly considered refusing to rent out council premises to associations listed as cults by the French Parliamentary Commission. Carine Vyghen, Deputy Mayor of Social Affairs and Personnel of the City of Brussels, investigated the possibility that the city could include a clause in the contract for each new civil servant declaring that the new servant had no connection with a sect.57 The French Parliamentary Commission concluded that, lacking sufficient information, they would authorize the establishment of a multidisciplinary

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commission that would focus on fact-finding and additional observation with direct communication links to the Prime Minister. In addition, the Ministry of National Education would focus on educating children with a view toward preventing increased membership in sects and minority religions from young people. The German Commission reported that sects and psycho-groups do not represent any danger to the democratic state, and rejected any global or generalized judgment about groups. It also reported that only a small number of groups could be considered “problematic” and that existing laws adequately addressed any real problems and requested the establishment of a federal foundation to collect data on new religious movements and to stimulate scientific research work.58

V II I. MEDIA AND THE ENQUETE COMMISSION The media’s coverage of new minority religions is more likely to be negative or sensational than positive. This has occurred for several reasons. Sociologist Bryan R. Wilson offers one reason: “Sects are news only when they are objects of opprobrium. . . . Sects and new religious movements make news only when there is supposed scandal or sensation to report, in the ‘human stories’ of apostates or the anguish of parents about children exposed to sectarian influence (whether as converts or as offspring).”59 The hostility of the media in Germany was reported on by the ad hoc committee to investigate discrimination against religious and ethnic minorities in Germany. Germany’s Interim Report noted that only “three religions are allowed to advertise on German broadcast media.”60 To advertise, it is necessary to possess the personality of a corporation at public law. These three religions, Lutherans, Catholics, and Jews, are stateendorsed religion and as such have been granted this status. Thus, new religions are prohibited from access to the media. The report concluded that “the German media coverage of the minority issue has all the hallmarks of a classic disinformation campaign.”61 For example, in Bavaria, the government has provided compulsory educational material to indoctrinate school children against minority religions and its members. Germany’s Interim Report also concluded that the media are not acting alone, but rather in concert, and points to an October 1996 conference, supported by the CDU and the Lutheran Church, to coordinate political and media harassment of religious minorities. Further, the Committee described a network of anti-sect priests, pastors, and government commissioners who also work in harmony to target religious minorities.62 In particular, in the fall of 1997, the editor of the Hannoversche Allgemeine Zeitung decided to cease reporting news about Jehovah’s Witnesses on the grounds that they should be placed on the “same level as Scientology.” A local gazette in Sasbach informed the Wachtturm-Gesellschaft that they would no longer publish the times,

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events, and places of worship for Jehovah’s Witnesses as they do for other religious associations because of the negative media attention directed toward Jehovah’s Witnesses. In Greece, a 1993 report, officially associated with the National Intelligence Service, recommended the restriction of media access for sects and parareligious groups and at the same time advocated greater access for the Orthodox Church.63 Controversy arose when the report first reached media attention in the summer of 1993 and the Greek Minister of Interior denied the validity of the report. It was suggested that the author was a Greek Orthodox theologian attempting to consolidate the status and influence of the Orthodox Church. Antonios Alevizopoulos, the “Sect Commissioner” of the Greek Orthodox Church, has been linked in this respect.64

IX. C ONC LU SION History shows that religions, like other institutions, have a life cycle. It is interesting to note that the Ontario Report concluded that membership in new religions generally was of brief duration, usually no more than one year and frequently much shorter.65 New religions are always emerging and fading, and established religions are always in opposition to the emergence of smaller religions. It is in the nature of individuals to seek companionship in their worship and to examine the spiritual and metaphysical in search for answers to practical, day-to-day questions. This is humanity’s history from time immemorial. The French Parliamentary Report included the comments of a medical doctor who was heard by the Commission. His statements aptly summarize the findings of many commentators: You find the best and the worst in the sects. Sometimes, by means of the sects, people find themselves inside a warm group, others once again give meaning to their lives, still others give structure to their lives. Among my patients, some became involved in sects. Under no condition do I wish that they leave these sects, which serve them temporarily as a support. Of course this has not legitimized the whole of the phenomenon, but there are very positive aspects. If you don’t understand that, you will not understand the success of the sects either. Our contemporaries are not idiots. If hundreds of thousands of them rush into these movements, it is because they have good reasons and above all because they find answers there.66 Europe has not always enjoyed the freedoms of democracy and, in particular, the notion of religious freedom inherent in that form of government. If Europe intends to maintain a democratic system of government, however, it must carefully monitor and impose the necessary self-restraint to protect the religious

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liberty and freedom of conscience of its people. Justice Brandeis of the United States Supreme Court explained years ago: Those who won our independence believed . . . that public discussion is a political duty and that this should be a fundamental principle of the American government . . . that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. . . . Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.67 While libertarians are in favor of a broad definition of religion providing absolute protection for religious beliefs in a secularized state where government has the authority to evaluate religion, there is a danger that psychiatrists and other mental healthcare professionals will become arbitrators of what constitutes a healthy, normal, or acceptable belief. This authority gives the mental healthcare professional considerable status and power in government and places religion in a vulnerable position. The challenge to government has been to define cults, sects and “new religious movements” more specifically than to define religions. Opinions of professionals differ as to the definition and characterization of these organizations. Even the nomenclature is open to debate. Concerning the term “cult” Professor James T. Richardson commented: The term cult should also be disallowed in legal proceedings where involvement in an exotic religious group is an issue. Those defending in actions against new religions popularly referred to as cults should consider making pre-trial motions to suppress the use of that term in the court room. The term simply carries too much baggage to allow its casual use in proceedings designed to have rational judgments made about important issues.68 Stratification of religious organizations is a dangerous inroad into the liberties presently identified in European democratic societies as fundamental freedoms. When religious freedom can be denied on the grounds of popularity or a majoritarian opinion of normalcy, then liberties may eventually be legally denied based on characteristics such as color, race, or national origin. Those who convey stories of extremes and experiences of disgruntled former members

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would do well to remember that the democracy that allows them to complain about these minority organizations similarly provides laws, both penal and civil, to provide adequate protection for the ordinary prudent and reasonable adult. In a democratic system, when the state takes on the responsibility to provide greater protections, the price of protection is extremely high for individual liberty. Rather than creating an environment where there can be a free democratic exchange of ideas, the state becomes the controller of individual wills, an assertion now being leveled against many minority religions as dangerous and unacceptable behavior. In a democratic society, the solution for any problem presented by minority religions must fit the framework for democratic society. For example, the conclusion of the Ontario Report suggested that the solution lies in public education focused on the free dissemination of objective information, together with encouragement of greater tolerance and respect, thus allowing people to make their own choices in an informed and mature manner. That panel agreed that legislation already in place adequately protects citizens and any further legislation directed toward the proscription of minority religions would be too great a price to pay in a democratic society. The Ontario Report suggested that nothing more could be done by governments to “protect” citizens from the influence of new religions. It made this acknowledgement in recognition of the fact that free exercise of religion demands freedom for popular and mainstream religions as well as for emerging and new religions. The findings of the European Enquete Commissions have laid a groundwork for classification of religions by designating some religions as acceptable targets for intense government scrutiny and infiltration and by creating governmental agencies designed to accomplish this scrutiny. These two events having been accomplished, it is easy to foresee that certain new religions will be denied the full range of activity open to the unchallenged mainstream religions. In effect, a second-class citizenship of religious organizations could emerge in the European framework, and the stigma of second-class citizenship will begin to attach to its adherents. Not only will this have a chilling effect on the propagation of new religions, but it will also take the marginalization process a step further. Systematic exclusion of adherents from economic or social life sets the stage for legalized marginalization of members of new religious movements. No one can close his or her eyes to the history of the religious wars in Europe. If we are to learn from that senseless brutality, then it is essential that the law protecting religious freedom remain in place and intact as it has been traditionally applied to all religious adherents and to all religious groups, regardless of their popularity and the dimension of their influence.

endnotes 1. Albania Const. ch. VII (“Fundamental Freedoms and Human Rights”), Art. 2; Andorra Const. ch. I (General Principles), Art. 6 § 1, Art. 11 § 1; Austria Const.

384 ca roly n w a h Art. 14.1(2), Art. 15, StGG (Austrian Constitution provides that those eight churches legally recognized as churches or religious communities have a right to exercise their religion publicly and together), Art. 16, StGG (whereas their adherents are not legally recognized religious confessions, are allowed to exercise their religion in houses only), Art. 63.2 StVst.Germain (however, all inhabitants of Austria have the right to exercise publicly and privately any kind of religious profession freely as far as exercising it would not contradict the public order or moral good); Belgium Const. Title II (Belgians and Their Rights), Art. 19, Art. 20; Bulgaria Const. (1991) Art. 37.1(2)(Freedom of Religion and Belief); Croatia Const. ch. III, pt. 1, Art. 14.2, Art. 38, Art. 40, Art. 41; Cyprus Const. pt. I (General Provisions), Art. 2.3, Art. 18; Czech Republic Const. ch. II (Human Rights and Fundamental Freedoms), pt. I, Art. 15, Art. 16; Denmark Const. pt VII, §§ 66–70; Estonia Const. ch. II (Fundamental Rights, Liberties and Duties), Art. 40, Art. 41; Finland Const. pt. II (Fundamental Rights, 17 July 1995/969), § 5, § 9; France Const. Title XII (On the Community), Art. 77; Federal Republic of Germany Const. Art. 4, pt. I, II, § GG (guarantees all religious communities the same individual, corporate religious freedom), Art. 140, § GG with Art. 137, pt. I, § WRV (separation from the state), Art. 140, § GG with Art. 137, pt. III, § WRV (The Right to Church Self-Determination); Greece Const. pt. II (Individual and Social Rights), Art. 13, §§ 1–5; Hungary Const. ch. XII, Art. 60, §§ 1–4, Art. 61, §§ 1–4; Iceland Const. ch. 6, Art. 62, Art. 63, Art. 64; Ireland Const. Art. 44 (Religion); Italy Const. (Italian Constitution, 1948) Art. 8 (Religion), Art. 19 (Freedom of Religion), Art. 20 (Religious Institutions); Latvia Const. ch. IV (Rights and Obligations of a Person), Art. 12, Art. 30, Art. 35; Liechtenstein Const. ch. IV (General Rights and Obligations of Citizens of the Principality), Art. 37; Lithuanian Const. ch. 2, Art. 26, Art. 27; Luxumberg. Const. ch. II, Art. 19, Art. 20; Macedonia Const. ch. II, pt. 1 (Civil and Political Freedoms and Rights), Art. 9; Malta Const. ch. IV (Fundamental Rights and Freedoms of the Individual), pt. 40.1(2); Moldova Const. ch. II (Fundamental Rights and Freedoms), Art. 31.2; Netherlands Const. ch. I (Fundamental Rights), Art. 6; Norway Const. pt. A (Form of Government and Religion), Art. 2; Pol. Const. Art. 25, Art. 53; Portugal Const. (Third Revision, 1992) pt. I, title 1, Art. 13, § 2, Art. 41; Romania Const. (1991) Title I, Art. 29 (Freedom of Conscience); Russia Const. ch 2 (Rights and Liberties of Man and Citizen), Art. 28; Slovakia Const. ch. 2, § II (Basic Human Rights and Freedoms), Art. 24; Slovn. Const. Art. 7, Art. 41 (Freedom of Conscience); Spain Const. ch. II, § 1 (Basic Rights and Public Liberties), Art. 16; Sweden Const. ch. 2, Art. 1; Switzerland Const. Art. 49.1(2), Art. 50; Turkey Const. (1982) ch. IV (Freedom of Religion and Conscience), Art. 24; Ukraine Const. ch. II (Human and Citizens’ Rights, Freedoms, and Duties), Art. 34, Art. 35; United Kingdom Const. pt. 6, § 18 (Freedom of Religion). 2. European Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, Euopean Treaty Series, No. 5, Opened for signature by the Council of Europe on November 4, 1959, Entered into force on September 3, 1953, Section I, Art. 9 (Rome, 4.XI.1950): Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to

European Parliamentary Enquete Commissions 385 manifest one’s religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 3. Rapporteur’s Report on Behalf of the Committee on Youth, Culture, Education, Information and Sport on the Activity of Certain New Religious Movements Within the European Community, Eur. Parl. Doc. (1–47/84) (1984). 4. Motion for a Resolution on Distress Caused by Sun Myung Moon’s Unification Church, Eur. Parl. Doc. (1–109/82) (1982); Motion for a Resolution on the Activities of the Sun Myung Moon’s Unification Church, Eur. Parl. Doc. (1–2/82) (1982). 5. Ibid. (hereinafter referred to as the “Cottrell Report.”) 6. Louis Jolyon West, Persuasive Techniques in Contemporary Cults: A Public Health Approach in Marc Galanter (ed.), Cults and New Religious Movements 168 (Washington, DC: American Psychiatric Association, 1989). Meetings convened to discuss the issue include a national conference in West Germany in 1981 and a 1982 meeting of the American Parents and Teachers Association (TA). In 1984 there was a televised national debate in Spain and in 1985 the international Wingspread conference on cults met at the Johnson Foundation Wingspread Center in Racine, Wisconsin. The Vatican prepared a report in 1986 and in 1987 an interministerial report was published by Israel. 7. Daniel T. Hill (Special Advisor), Study of Mind Development Groups, Sects and Cults in Ontario, A Report to the Ontario Government (1980) (the “Ontario Report.”) See also Information Meeting on the Cult Phenomenon in the United States, Transcript of Proceedings, Washington, D.C., February 5, 1979. 8. Cottrell Report, above n. 5. 9. Ibid. 10. Ibid. 2(a)–(k). 11. Ibid. 3.1 (Conclusions). 12. Ibid. 13. Under the Fourteenth Amendment of the United States Constitution, a list of rights and privileges have been afforded to citizens in both civil and criminal proceedings. The most fundamental of these is the right to receive notice of the proceeding and an opportunity to be heard in the process. “Notice” in this context means informing the participant of the possible outcome of the proceeding. Notice given by parliamentary Enquete commissions made no reference to potential classifications as “dangerous sects or cults,” the possibility of targeting by government surveillance or infiltration or screening and exclusion from civil service. 14. See, e.g., Ku¨rschners Volkshandbuch Deutscher Bundestag, 13: Wahlperiode 1994, edition 76, 131, 145, 175, 203, 227, 229 (March 10, 1996), which offers the following information about the background of some of the German Enquete Commission members: Helmut Jawurek (CSU, Christian Social Union)—studied political science and industrial management; president of the local tourist association. Brigit SchnieberJastram (CDU, Christian Democratic Union)—editor at a specialized publishing house; member of the board of the German Red Cross in Hamburg. Angelika Mertens

386 ca roly n wa h (SD, Social Democratic Party)—studied at College for Business and Politics in Hamburg; economist. Renate Rennebach (SD)—high school graduate (“Realschule”); apprenticeship as a hairdresser; honorary social and labor court judge. Gisela Schro¨ter (SD)—teacher, director of a “Sonderschule” (special education for handicapped or mentally retarded children). Roland Kohn (FD, Free Democratic Party)—studied philosophy and political science; publicist. 15. Jehovah’s Witnesses were first incorporated in Magdeberg, Germany in 1921, although the Watchtower magazine first appeared in the German language in 1897; in France, the Watchtower magazine has been published in French since 1891; in Austria, preaching work began under the Austrian-Hungarian monarchy and a legal association was formed on May 24, 1930; and in Belgium, preaching work began in 1902 and the branch organization published its statutes in the Belgium Monitor of May 7, 1932, under No. 680. All were legally restricted or banned under the Third Reich and resumed legal operations after World War II. Recent statistics from the 1998 Yearbook of Jehovah’s Witnesses indicate that the four countries mentioned have a combined meeting attendance of over 589,626 with more than 342,792 active members. 16. France and Belgium have declared Jehovah’s Witnesses to be “dangerous.” The Interim Report of the German Enquete Commission is silent on this issue. 17. See the initial proposal by Mr. Duqesne, Parl. Doc., House Re., 1995–96, No. 313–1, and the report on that proposal by Mr. Borin on behalf of the Commission for Justice, Parl. Doc., House Re., 1995–1996, No. 313–5. 18. Press information, Enquete Commission “So-Called Sects and Psychological Groups,” German Federal Parliament, March 13, 1997. 19. On May 9, 1996, the Bundestag passed a resolution to set up an Enquete Commission on the subject “so-called sects and psycho-groups.” The first meeting (a press conference) of this Enquete Commission took place on June 12, 1996. 20. See Final Report, Section 1.2, 15–6. The Enquete Commission had invited the following groups to non-public hearings: Old Mystic Order Rosae Crucis (Rosicrucian), Bruno Gro¨ning Friends Circle, Community on the Way, Society for Transcendental Meditation, International Society for Krishna Consciousness, Church of Christ of the Latter-Day Saints (Mormons), Landmark Education, New Akropolis, Scientology, Soka Gakkai, Universal Life, Association for the Furtherance of Psychological Knowledge of Human Nature (UM), Unification Church, and Jehovah’s Witnesses. Former members from the following groups were heard by the Commission: Ananda Marga, European Labor Party (now: Civic Rights Movement Solidarity), Community on the Way, Society for Transcendental Psychology (I.I.), Kaizen, Landmark Education, Sant Thakar Singh, Scientogy, Soka Gakkai, Universal Life, Association for the Furtherance of Psychological Knowledge of Human Nature, Unification Church, and Jehovah’s Witnesses. 21. Press conference, April 14, 1997, comments of chairwoman Ortrun Scha¨tzle (CDU). 22. Press release of CDU/CSU Party and the German Parliament of July 10, 1997, comment by Roland Pofalla (CDU). 23. See the German Final Report, Section 1.2, 15–6. 24. Report by Messrs. Duquesne and Willems on behalf of the Commission of Enquiry, Parl. Doc., House Re., 1995–96, Nos. 313–7 (Part I) and 313–8 (Part II).

European Parliamentary Enquete Commissions 387 25. Willy Fautre´, Anti-Cult Movements Threaten Religious Liberty in Europe– Analysis, Compass Direct (Santa Ana, California), December 19, 1997. “The growing influence of anti-cult movements could endanger the rights of religious minorities in Europe, including some Protestant groups.” See also Willy Fautre´, chapter 13 in this volume. 26. Liliane Voye´, Sous le regard du sociologue: le rapport de la commission d’enqueˆte parlementaire franc¸aise sur les sectes in Massimo Introvigne and J. Gordon Melton (eds.), Pour en Finir avec les Sectes 105 (Paris: Dervy, 1996). 27. Hill, above n. 7, 238. 28. Marat S. Shterin, New Religions, Cults and Sects in Russia: A Critique and Brief Account of the Problems, at http://web.tin.it/cesnur.org/ Shterin.htm. 29. Ibid. 30. Ibid. 31. Ibid. 32. Application to the Ministry of Education, Culture, Science, and Craft. 80333, Mu¨nchen, August 26, 1997. 33. Ibid. 32. 34. Fautre´, above n. 25. 35. The Pontifical Biblical Commission, The Interpretation of the Bible in the Church 21 (Vatican: Libreria Editrice Vaticana, 1993). 36. Ibid. 75. 37. Ibid. 120. 38. Ibid. 72. Although Jehovah’s Witnesses are specifically criticized in this document, Jehovah’s Witnesses are not fundamentalists according to the definition offered by the Pontifical Biblical Commission. See e.g., The Watchtower, March 1, 1997, at 6, emphasizing that Jehovah’s Witnesses “maintain strict neutrality in political controversies” and although they have strong convictions, do not categorize themselves as fundamentalists. 39. F. Cavalli, La Civilta` Cattolica (Rome), April 3, 1948, at 33. 40. Guido Verucci, La Chiesa nella societa` contemporanea. Dal primo dopoguerra al Concilio Vaticano II 231 (1988). 41. Bryan R. Wilson, The Social Dimensions of Sectarianism: Sects and New Religious Movements in Contemporary Society 19 (New York: Oxford University Press, 1990). 42. Massimo Introvigne, Religious Liberty in Europe 5 (Center for Studies on New Religions, 1997). (hereafter “CESNUR”). 43. Loudgericht koln Az.:280 342/97. 44. Report of the French Parliament Commission of Investigation on Sects, Les Sects en France, Assemble´e Nationale, No. 2468, Paris 1995. 45. Introvigne, above n. 42, 15–16. 46. See the German Final Report, 17–22. 47. Enqueˆte Parlamentaire visant a` e´laborer une politique en vue de lutter contre les pratiques ille´gales des sectes et le danger qu’elles repre´sentent pour les personnes, particulie`rement les mineurs d’aˆge, Chambre des Repre´sentants de Belgique, Session ordinaire 1996–97, Bruxelles 1997.

388 ca roly n wa h 48. See the German Final Report, 132–3. 49. Richard Singelenberg, Scandalous Sex was Presumably Perpetrated, Trouw (Netherlands), November 7, 1997. 50. Richard Singelenberg, Book Review of Die Sekten-Kinder by Kurt-Helmuth Eimuth, 13 J. of Contemporary Religion 110, 111 (1998). 51. Letter from Attorney Armin Pikl to Kurt-Helmuth Eimuth, dated January 20, 1997 (on file with the author.) 52. Letter from Renate Rennebach to Hermann Reuter (overseer of Accounting Office, Wachtturm-Gesellschaft) (May 28, 1996) (on file with the author.) 53. Fautre´, above n. 25. 54. These are: Old Catholic Church (1877); Herrenhuter Brothers Church (1880); Methodist Church (1951); Mormons, Church of the Latter-Day Saints; Armenian Apostolic Church (1973); New Apostolic Church (1975); Buddhist Religious Community (1983); Syrian Orthodox Church (1988). 55. Federal Law about Legal Personality for Religious Confessional Communities, passed December, 1997, effective January 1, 1998 (NR:GP XX RV 938 AB 1013 S.102. BR: AB 5596 S.634.) See Federal Law Gazette for the Austrian Republic, Part I, 1998. 56. Russian Federation Federal Law on the Freedom of Conscience and on Religious Associations, 125 FZ, September 26, 1997. 57. La scientologie au ban, en Allemagne et a` Bruxelles?, Le Soir (Belgium), August 13, 1996. 58. See the German Final Report, 17–22, 116–50. 59. Wilson, above n. 41, 66. 60. Lord Hylton, Lord McNair, Professor Antony Flew, Dr. Dennis O’Keeffe, David Rosser-Owen, The First Report of the Ad Hoc Committee to Investigate Discrimination Against Religious and Ethnic Minorities in Germany 1 (Council for Human Rights and Religious Freedom, 1997). 61. Ibid. 2. 62. Ibid. 3. 63. Greek Intelligence Service (KYP) Report on Modern Sects and Parareligious Groups in Greece (English Summary), 111 (January 1993). 64. Ibid. 65. Hill, above n. 7, 548. 66. Report of the French Parliament Commission of Investigation on Sects, December 22, 1995, 43. 67. Whitney v. People of the State of California, 47 S.Ct. 641, 648, 274 U.S. 357, 376 (1927) (Justice Brandeis concurring). 68. James T. Richardson, Definitions of Cult: From Sociological-Technical to Popular-Negative, 34 Review of Religious Research 348, 355 (June 1993).

Chapter 12 t h e c o n t e m p or a r y f or m o f t h e r e l a t i o n s h i p b e t we en r e l i gi ou s m i nor i t i e s a n d t h e s t a t e i n sp a i n Rosa Marı´a Martı´nez de Codes

I. THE EU ROPEAN FRAMEWORK Within the European Union, there is traditionally considered to be a tripartite system of church-state relations: a distinction is drawn between countries with state churches (“rational church systems”), those with separation between Church and State (“separation systems”), and others that recognize a system of agreements between both Church and State (“concordation systems”). In the first case, one can observe close and involved relations between the State and the life of the Church. Countries like England, Denmark, Sweden, Finland, and Greece illustrate this category. There are also systems that tend toward strict separation, as is the case with France (except for the three departments of the east in which the Napoleonic Concordat is still in force) and Holland. Ireland could be considered to fall into this category, though with some reservations. And finally, there is the so-called system of agreements: these start from a situation in which both church and state are independent and recognize multiple common undertakings in which the actions of both are interrelated. Germany, Spain, Italy, Belgium, Austria, and Portugal are examples of countries with such agreements.1 At first glance, this formal classification appears to be very useful for understanding the treatment that the different denominations receive from the Eu-

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ropean Union member states. But it does not shed much light on the social relevance that religion can have above and beyond strictly constitutional requirements. In spite of the variations among these systems, however, the abovementioned classification does allow us to detect certain similar characteristics that make it possible to sketch an outline of a common pattern of church-state relations in Western Europe. In the first place, religious freedom as an individual right is, without exception, fully recognized. In the European context, the first global covenant on human rights, the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in Article 9, section 1, protects individual religious liberty in the following terms: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.2 In accordance with this statement, the majority of Western European constitutions contain similar provisions and expressly prohibit religious discrimination as well.3 In the second place, one can observe a general tendency to recognize and protect the internal corporate autonomy of the religious denominations so that they can legally administer and regulate their own affairs.4 This right to autonomy as a legally recognized entity may include on occasion only those institutions that have a close relationship with the church in terms of its ecclesiastical activities, or it may also affect the denominations’ management structure in the widest sense. In some cases the right of acting autonomously as a legally recognized entity is limited to the official representation of the church and to similar institutions. Third, there is a clear tendency on the part of governments to give preferential treatment to the so-called external activities of the different religious organizations. States are inclined to manage general public needs in the context of considering religion as an integral part of social life. There are several European constitutions that provide for favorable treatment of the denominations’ educational and social activities,5 although the largest number of these provisions are embodied in laws which are derived from but are not actually part of the Constitutions.6 Finally, they set limits to the exercise of the universal right of religious freedom. These limits are related to morality, public order, health, security, and third-party rights.7 The purpose of emphasizing the characteristics held in common among the

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existing models in the EU is not to simplify the complexities of the different legal systems, but instead to progress toward the development of a common standard containing the underlying principles of the EU’s treatment of religion and religious communities, while at the same time enabling the various national systems to be seen as integral parts of their respective national identities. The Treaty of the European Union (TEU) expressly included the ECHR in Community law, thus obligating the Union to respect and treat as general principles of Community law the fundamental rights guaranteed by the Covenant and by the constitutional traditions held in common among the other member states.8 In accordance with this, a new section obligates the Union to respect “the national identity of its member states.”9 According to the aforementioned Article 6, Title 1 of the TEU, in order to guarantee the protection of member states’ culture and national identity, special consideration must be given to those institutions regulated by state ecclesiastic law (churches and legally recognized religious institutions) that exist in the different member states. Following these guidelines, the new Treaty of Amsterdam includes in its final declaration: “The European Union respects without prejudice the statutes recognized by member states’ national law relating to churches and religious associations or communities established therein.”10 Any observer of religious plurality in Europe and its expression through jurisprudence in member states will not fail to note how deeply the churches and church-state relations have affected member states’ national identities through their history, culture, and traditions. European unity, as it evolves inevitably from the roots of its members’ shared culture, traditions, and history, must take into account the existence of the churches, without either depriving them of their autonomy and independence or searching for formulas to unilaterally make them legally equivalent. That does not mean, however, that formulas to safeguard the principles shared by the diverse systems of church-state relations should not be sought for the European Community. As we will see further below, these varying forms of church-state relations may possibly serve as an example to the emerging Eastern European countries.

II. THE AGREEMENT PERSPECTIVE Today, the existence of agreements between the state and religious denominations is one of the determining characteristics of the model of state ecclesiastic law currently in effect in many European countries.11 European states have reached numerous agreements, not only with the majority religious denominations (Catholic, Evangelical, and Jewish) but also with many other religious communities that are not as widely spread in the respective countries. This system of agreements derived from state ecclesiastic law has a long

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tradition which, in the case of Germany, goes back more than 150 years,12 and has shown itself to be an effective instrument for providing for the specific needs of each religious community as well as for those of the overall society. There are many authors who believe that the best way to regulate relations between the state and the religious communities is by way of a system of agreements.13 In the opinion of Von Campenhausen, the importance of the contractual aspects of state ecclesiastic law lies in the fact that, in these agreements, the contracting parties (church-state) jointly regulate, within the framework of the constitution, a part of their own constitutional lives. Furthermore, these agreements, set out in more detail than constitutional texts, limit the possibilities of different state or church interpretations.14 Hollerbach insists that the agreements arising from state ecclesiastic law function as a key element within the constitutional framework, enabling the state and the religious communities to create jointly the legislation that will regulate their relations.15 German contractual law is the result of a major effort on the part of that country’s legal experts to establish a system of relations between the state and church that is compatible with the principles of tolerance, neutrality, and equality which are the basis of the state ecclesiastic laws now in effect.16 This body of laws is closely related to the constitution and state ecclesiastic law and adopts the legal form of leges contractus. Most of these agreements not only repeat the constitutional principles but also corroborate them, thus guaranteeing that they will be complied with.17 Two factors, Germany’s federal structure and the historically deep-rootedness of two of its large churches (Evangelical and Catholic) have made possible the development of a system of church-state relations which are distinct from those of countries like Italy, Spain, or France. German state ecclesiastic law is unique in that it provides different ways for establishing relations with the religious denominations. The different constitutional texts that exist, be they the Constitutional Law of Bonn18 or the constitutions of the La¨nder,19 clearly stipulate that any coordination which may be necessary between the government and the religious communities must be either through laws enacted unilaterally by the government or through agreements between both parties. Both the federal government as well as the different federal states employ unilateral legislation to specifically regulate affairs related to state ecclesiastic law. Among the types of legislative mechanisms used, mention should be made of the laws (signed by the religious communities) that develop the agreements derived from state ecclesiastic law; special provisions that establish a particular regulation for the said communities; those laws which do not regulate any ecclesiastic matter, but which might affect the religious communities in some way; laws protecting religion that exempt the communities from some obliga-

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tion; and, finally, the regulations agreed on between the law makers and those groups affected. Unilateral regulation by the state, although making possible the principle of cooperation between the state and the church, sometimes gives rise to a situation in which society’s needs may be ignored. In fact, laws may even be passed that are contrary to the will of the religious communities.20 In order to avoid these difficulties, German legal experts have created an instrument that enables the permanent differences between state authorities and religious communities to be reconciled through a system of agreements. This complex, permanently evolving judicial field called contractual law offers several different possibilities in the case of Germany. The agreements may be signed by the Federal state (Bund) or by the La¨nder as well. In both cases it is observed that laws of distinct value are established within the hierarchic system of laws (concordats, agreements, covenants, administrative agreements) in function of the matter they regulate or the process by which they were created.21 The process of the unification of Germany and its termination in October 3, 1990 meant that new La¨nder were included in the Federal Republic of Germany.22 The treatment of religion by the constitutions of the new La¨nder shows clearly that the model of state ecclesiastic law established by the Weimar Constitution in 1919 has not fallen into disuse.23 The Constitutional Law of Bonn, passed in 1943 and modified in 1994, incorporates, through Article 140, the aforementioned Weimar constitution’s Articles 136 to 141 in which the missions of the churches, religious and ideological communities are recognized while the principle of separation between state and church is corroborated. The majority of the La¨nder, even those that had constitutional texts before World War II and had signed agreements of state ecclesiastic law, invoke Article 140 of the Constitutional Law of Bonn, which enables them to establish other new agreements with the religious denominations. 24 The system of church-state agreements that the Weimar Constitution established encouraged the state to enter into agreements with Germany’s religious denominations, and made possible the signing of concordats between the Holy See and the Land of Bavaria (March 29, 1924), of Prussia (June 14, 1929), and of Baden (October 12, 1932). Although these concordats were signed with governmental entities that today no longer exist as such in the Federal Republic of Germany, they are still in effect and are in force in those territories that were previously under the jurisdiction of those entities; they function in perfect harmony with the agreements signed by the La¨nder with their corresponding Evangelic churches and, recently, with the Jewish communities.25 In my opinion, the German example completely dispels the mistaken notion that the signing of a Concordat implies confessionality on the part of the state

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that has signed it, or that it provides greater protection to the churches than that provided by the state laws, by virtue of it being an international agreement as recognized by legal experts.26 If we accept as accurate the international character of the Catholic Church and the highly specific content of the Concordat as a source and basis of legal obligations for the contracting parties, the difference between the Concordat on the one hand, and the agreements with the rest of the religious denominations on the other hand, may merely be a question of form. If we leave aside discussion about the judicial nature of the possible agreements between the states and the non-Catholic religious denominations, the only reservation that we might make in this respect is that the guarantees granted to the Catholic Church through an international agreement may possibly be more effective in comparison with those conceded to the rest of the religious denominations within the framework of a national legal system. Historical experience shows, however, that in Concordat law, the only real guarantees that the church enjoys are the good will of the state along with whatever means the church may have at its disposal to apply pressure on the state. These are the same guarantees that are available to any other church or religious community that has established an agreement with the state through national law. In the opinion of Alberto de la Hera, The church does not ask for its relations with the state to be formalized through a Concordat as a way of obtaining guarantees—with respect to this there is no reason for it to receive treatment which is different from any other religious society. Instead, the Concordat is deemed necessary so that the church can be coherent with its own claim of having an international character, derived from the thesis of the perfect judicial society in the scope of public ecclesiastic law, and even from the thesis of the primary judicial regulations of Italian dogma.27 At present, the signing of a Concordat does not seem to be the defining element of a state’s attitude toward the Catholic Church. The case of Belgium bears this out: There, the relations between the Catholic Church and the state are not governed by any concordat; although in point of fact the church in this case enjoys a position that can be considered to be more advantageous than its position in other countries where there is a Concordat.28 Among the countries with a tradition of Concordats, Italy is very probably the one that has evolved the most in the last few decades in terms of legislation and legal expertise. Years ago, Italian ecclesiastic law ceased to be considered as merely a body of laws which regulate the relations between state laws and

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church regulations. Instead, today it embodies the constitutional aspects of religious freedom and its legal development.29 In the 1980s, the principles of religious freedom and equality present in the 1948 Italian Constitution inspired the reform of Italian state ecclesiastic laws and the revision of the Concordat regulations/stipulations.30 According to Article 7 of the Constitution, “The state and the Catholic Church are both sovereign and independent in their own areas. Their relations are regulated in the Lateranense Pacts. The modification of these pacts, when accepted by both parties, does not require that the constitution be revised.” In 1984, the Villa Madama Agreement was signed between Italy and the Catholic Church. This agreement has substituted for the Lateranense Concordat of 192931 and has opened the way toward the signing of other specific covenants in relation to the discipline of Catholic institutions and property (1984); the teaching of Catholicism in public schools; religious holidays (1985); and religious assistance to the police (1990).32 The Italian system of state ecclesiastic law revolves around two axes. On the one hand, it aims to guarantee religious liberty and equality to all individuals in line with the principles contained in the majority of the constitutions of Western countries. On the other hand, it guarantees a system of cooperation between the state and religious denominations. Article 8.1 of the Constitution states that “legally, all religious denominations are equally free” and, following this, guarantees that all religious denominations shall have a substantial degree of autonomy in the management of their internal affairs. It also establishes that the state can only regulate its relations with a denomination by way of an agreement: Those religious denominations which are not Catholic have the right to organize themselves according to their own statutes, as long as these do not contradict Italian state law. Their relations with the state shall be regulated by law, based on an agreement with the corresponding representative (called concordat or intesa.)33 Once such an agreement has been concluded, any future modification can be made only through a new agreement between the state and the denomination. Furthermore, both parties must be present and in no case may the state modify an agreement unilaterally (except in the case of a revision and modification of Articles 7 and 8 of the Constitution). The six religious entities that have become signatories to an intesa with Italy in the last 15 years are not subject to law number 1159 of 1929 that regulates the practices of those religions accepted there,34 but instead are subject to the stipulations and conditions set forth in their particular intesa, which are far more favorable.

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The agreements reached with the Mesa Valdense (1984), the Seventh Day Adventists (1986), the Pentecostal Assemblies of God (1986), the Union of Jewish Communities (1987), the Baptist Christian Evangelical Union (1993), and the Lutheran Church (1993) introduce among the different religious denominations elements of differentiation. This, in fact, is compatible with the constitutional precept which does not speak of the equality of religious denominations, but rather “equal liberty.” At this stage the question is on what basis legitimate differentation between religious communities are to be made. This complex issue is raised by Silvio Ferrari when he says that “The correct relationship between liberty that makes possible specific treatment for each denomination and equality that entails a common right and duty platform for all citizens, seems to be the main problem of the Italian ecclesiastical law in force.”35 The search for judicial formulas tailored to regulate religions and their multifarious manifestations (sociocultural, economic, legal, etc.) has allowed the state to reach a degree of understanding with different religious groups. The state’s treatment of the different religious communities established in the country must be understood in the context of the existence of a body of national laws that require the same degree of legal protection of individual religious liberties. But this need not necessarily imply the same legal formulas to connect the interests of the state with those of the church. The religious groups’ own organizational structure will probably determine the choice of the most appropriate formula, although in reality, the Italian and Spanish experience with these kinds of agreements shows the influence that history and culture wield on the legal situation preferred by the Catholic church.

II I. THE EXAMPLE OF SPAIN: THE PRACTICAL IMPLIC ATIONS OF A SYSTEM OF COOPERATION WITH RELIGU OU S MINORITIES Like the German and Italian models, the Spanish model of relations between the state and religious minorities, based on the signing of bilateral agreements, is ultimately derived from the Concordat tradition existing in Europe.36 Those agreements, with the exception of certain idiosyncrasies of each of the denominations signatory to them, regulate matters that are very similar to those which are covered by the covenants signed by the Holy See with Spain and contemplated also in the Italian intese and the so-called German Staatskirchenvertra¨ge. Although the Spanish system is not unique, it does present a series of particular characteristics that make it an interesting, attractive, and controversial point of reference. The essential difference resides not in the subjects or questions dealt with in these texts, but rather in the wide scope of judicial protection that the Span-

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ish agreements grant to a large number of churches, religious communities, and and organizations as well as in the decisionmaking power of the religious federations. The Spanish system derives from an important political choice: that of expanding the judicial protection given to minorities, a protection that fits within the framework of the 1978 Constitution. It is necessary to describe briefly the characteristics of Spain’s present legal code’s provisions on religious freedom, in order to clarify the theoretical framework and the evolution that these agreements between the state and religious minorities have undergone. Up until the proclamation of the 1978 Constitution, the Catholic character of the Spanish state permitted the Catholic Church to enjoy privileged treatment in accordance with the 1953 Concordat in force until that time.37 During the last twenty years, Spain has evolved from a Catholic religious system to a democratic and pluralist system designed by the 1978 Constitution.38 This Constitution defines the state as non-confessional, within a context implying a positive definition: as required by the principle of equality and fair treatment regardless of religious beliefs (Article 16), the state does not differentiate between believers and nonbelievers; in the eyes of the state, everyone is equal and equally free. The rights of equality and religious freedom, originally conceived of as individual rights for all citizens, also apply to the religions or communities to which these individuals belong, for the communal fulfillment of their religious objectives, without the need for previous authorization or registration in any public registry. At the same time, and also as mandated by the Constitution (Article 16.3), the state is obliged, as far as the religious beliefs of Spanish society demand, to maintain relations of cooperation with the different religious denominations for the purpose of making the right of religious freedom for its citizens something real and effective. This may be done in different ways with the denominations inscribed in the Registry of Religious Organizations.39 One means of cooperation, neither unique nor absolutely necessary and therefore not obligatory, is set out in the Organic Law of Religious Freedom of July 5, 1980 (LOLR), which in Article 7 establishes the possibility of the state specifying its cooperation with religious confessions by means of entering into agreements or covenants of cooperation once these religious denominations, duly inscribed in the Registry of Religious Organizations, have clearly become deeply rooted within Spanish society.40 It is necessary to remember that, for centuries, the Spanish state had not previously maintained institutionalized relations of cooperation with any other religious community other than the Catholic Church. This cooperation was carried out by means of successive agreements with the Holy See. Only after the enactment of the 1978 Constitution did it become possible to undertake similar relationships with other denominations that, although currently in the

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minority, have always been present in Spain. I refer here to the Protestant, Islamic, and Jewish religions. Jews and Muslims have been part of the historic reality of Spain for many centuries; they have left important marks on its culture, language, art, and traditions, so much so that is difficult to try to understand Spanish history without taking into account their contribution. Apart from the incidental number of followers that these religions may have in Spain at any given time, Judaism and Islam are clearly deep-rooted here. With respect to the evangelical denominations, despite their lesser presence in the history of Spain and their having made a lesser mark on the culture and social reality of our country, they have nonetheless shared, with the Catholicism predominant in Spain, the name of Christians and their faith in Christ, and they have carried out an important role in furthering religious freedom. Today in Spain, of all the different minority denominations, these have the greatest presence and incidence. Given that the Protestant, Islamic, and Jewish religions in Spain satisfy the requirement of being deeply rooted in accordance with the terms of the Organic Law of Religious Freedom, the state is required to reach agreements with their respective representatives. These agreements, however, have not been signed with the churches, confessions, and religious communities, as stated in Article 7 of the LOLR, but with the federations associated with these Churches, confessions, and religious communities, grouped together around a belief that has been declared to be clearly deep-rooted. This is precisely the peculiarity and novelty of the Spanish situation. In effect, there are currently four religious confessions that have signed these agreements of cooperation: the Catholic Church, which currently has in force several agreements with the Spanish State,41 the Federation of Evangelical Religious Entities of Spain (FEREDE), the Federation of Israeli Communities of Spain (FCIE) and the Spanish Islamic Commission (CIE).42 Almost all of the different evangelical churches, as well as the Jewish communities inscribed in the Register of Religious Organizations, constituted the two federations mentioned above as their representative agents to the Spain for the negotiation, signing, and later follow-up of the Agreements, which were adopted in 1992. For their part, and for identical purposes, the different Islamic communities making up the two existing federations that have been registered—the Spanish Federation of Islamic Religious Organizations and the Union of Islamic Communities in Spain—constituted the Spanish Islamic Commission by mutual consent, which acts as the representative agent of the Muslims in Spain to the Spanish state. The result of this integrating effort on the part of Protestants, Jews, and Muslims has made it possible for the state to extend the benefits of the agreements of cooperation to many churches and communities that, had they acted alone, would have had difficulties in obtain-

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ing recognition on the ground of their being “clearly deep-rooted.” Consequently, the obtaining of the respective agreements with their representatives would also have been difficult. However, the agreement system with federations allows these to reject smaller newer religions, such as Jehovah’s Witnesses or Mormons, within the federations structures based on religious criteria. On the other hand, considering new proposals on this issue is left to the administration’s discretion. This aspect of the Spanish ecclesiastical law may be judged unfavorably. For the sake of religious freedom, equality, and pluralism in Spanish society, the contents of the agreements signed with minority religions had to reflect the substance of the agreements signed previously with the Holy See. The fact that these earlier agreements were entered into prior to the 1980 LOLR, however, meant that the different partial agreements signed with the Holy See had a different thematic treatment as well as a distinct legal and political basis. At the beginning of the political transition, the partial agreements signed with the Holy See in January 1979 dealt with legal, economic, educational, and cultural affairs; although they were written in the spirit of the 1978 Constitution, they nonetheless perpetuated the revision of the 1953 Concordat.43 For their part, the agreements signed in 1992 with the three religious federations previously mentioned respond fully to the principles that serve as the basis for church-state relations based on freedom, religious equality, and state cooperation. These relations were requested by the respective religions for the purpose of regulating their situation and obtaining recognition of a series of rights, as well as equalizing their status with the Catholic Church under state law. With respect to the contents of these agreements, their texts are very similar, regulating such important concerns as: the status of ministers and legal protection for places of worship; Evangelical, Muslim or Jewish religious teaching in educational centers; the fiscal system to be applied to the assets and activities of these religions; religious services in public centers; maintenance and promotion of Islamic or Jewish historical and artistic patrimony, etc. Given the uniformity of the subjects and their treatment, in a certain sense we can say that, having read one of these agreements, we have read them all. It is difficult to determine to what degree the option chosen constitutes the correct one, or if it would have been better to emphasize the distinctive features rather than the common ones. The breadth of this system of agreements, even covering matters that could be regulated through state laws, inclines one to think that there must be other solutions worth trying whose results might be more satisfactory with respect to the principle of equality. A state law that regulated, for all the religious denominations legally recognized as such, those problems lending themselves to a uniform solution—chan-

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nels of finance, religious assistance, access to schools, etc.—and left as the exclusive competence of the agreements questions specific to each denomination, as well as the possibility of carrying them out differently, would perhaps be more respectful in terms of the ideal balance between liberty and equality that is mandated by state ecclesiastic law. In theory, having a state law that regulated issues common to all legally recognized religious denominations (aforementioned) would bring positive effects to the principle of equality. This new legal perspective is being worked on in a Portuguese draft law on religious organizations that is now under parliamentary consideration. The agreements signed with the religious minorities, however, are intended to satisfy the specific requirements of each religion in consonance with their identities. For this reason certain sensitive issues, such as legal and civil recognition of marriages celebrated in religious ceremonies, the celebration of religious holidays, and even compliance with religious requirements in the preparation of certain foods, have been taken into account.44 In any case, the acceptance of the system on the part of these denominations guarantees that for them it is better than no system at all. Before concluding, it is worth looking at two relevant aspects of the Spanish system: on the one hand, the scope of application or the organizations included in the agreements and, on the other hand, the legal protection that these agreements grant associations and institutions created by the Evangelic and Jewish Federations and the Spanish Islamic Commission for the fulfillment of their objectives. The agreements are applied to those churches and communities that are members of the three federated religions, as long as these are inscribed in the Registry of Religious Organizations and as long as they are currently members of, or will become members of, the FEREDE, the FCI, or the CIE.45 In fact, the agreement is conditional on the existence of the federation. The state makes an agreement with the Federation of Churches or Communities with a particular religious belief, not with each particular church or community. Therefore, if the church or community is not a member, has withdrawn, or has been excluded from the federation, it is automatically excluded from the agreement. This gives the federations broad authority and discretion in the future evolution of the agreements, since these agreements act as a gateway for those religious groups requesting the agreed-on benefits. In the same way, the associated religious organizations that wish to obtain legal and civil recognition and that therefore decide to register must present proof of their religious objectives; this proof may be obtained from the highest organizational authority in Spain of the respective churches and/or federations. Article 1.3 of the agreements defines who is the highest organizational authority that can certify the “religious aims” of these associated organizations; the ad-

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ministration is limited to verifying the religious aims by means of the documentation presented.46 The state does not intend to control the religious activities of individuals and their associations. If they wish to obtain legal recognition as religious organizations and have their rights publicly recognized as such, however, the administration, once aware of the existence of these groups, must evaluate their characteristics—that is, their religious aims—before allowing them eligibility for inscription in the Register.47 A final question: in the end, how should we rate the Spanish system? Can it be considered an optimal model suitable for imitation elsewhere or, on the other hand, does it create great difficulties? Obviously, every system of agreements requires negotiation between the parties and the most appropriate level of consensus is not always achieved. In the case of Spain, consensus among the parties was achieved and this has allowed, until now, the development of specific legislation making real and effective the exercise of the right to religious freedom for participating organizations. It is appropriate, however, to take a critical look at this system, pointing out the positive aspects as well as the weaker ones. Perhaps it would be best to start with the positive ones: 1.

2.

3.

The system implies recognition on the part of the state of the social value of religion and allows a model of cooperation between the churches and the state that benefits society. The system works as an efficient platform of effective pluralism, tolerance, and openness inasmuch as it permits the integration of various different religious communities. The system tests new paths of cooperation for the future.

The weaker aspects of the system should also be noted: 1.

2.

3.

From the point of view of the state, the system implies an institutionalized view. Once an Agreement of Cooperation has been signed, it is difficult to renounce it and take away from the churches or communities those rights granted, even though there might be good reasons to do so. The system could endanger the principle of equality among religious groups, since only federated groups benefit from the agreements. Finally, the state’s capacity to recognize or not to recognize religious denominations is limited. The decision as to whether to accept or reject the churches or denominations requesting this recognition is left to the federations based on religious criteria.

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Today, the outcome of this analysis of favorable and unfavorable points is, in general, positive. A quick look back in time allows us to understand that these agreements close the book on the pages of intolerance recorded in our history.48 With the advent of the system of bilateral agreements, denominations that had not previously enjoyed long periods of peaceful and fruitful cohabitation have now recaptured the freedom and equality previously lost. Another question is whether the Spanish system can contribute to the definition of a common European legal standard that respects the characteristics of the existing church-state legal systems. Today, the systems of church-state relations in Eastern Europe are undergoing a deep process of transformation. It is difficult to predict what the final result will be. The main difficulties with a common European legal framework (in matters related to religious freedom and church-state relations) based on the requirements of ECHR and on constitutional principles, derive from Islam. Article 24 of the Cairo Declaration on Human Rights according to Islam (1990)49 is incompatible with the Western European model of church-state relations. Be that as it may, in the search for ways to integrate the Islamic communities into Europe, the existence of the above system of agreements increases the possibility of fraternal relations between Islamic and European civilization. Today, individual religious freedom has to be guaranteed and concretized by the states and so does collective religious freedom. Collective religious freedom as well as church and state relationships based upon it and combined with it can include concordats between the state and the Holy See, as well as other churches and religions’ agreements with the state. In a way, this is reasonable since guaranteeing religious freedom remains one of the tasks of civil authorities. New tendencies appear in religious law. Agreements between religions and the state and among religions play an increasing role in contemporary society. Religious movements feel that they can improve the position of religion as a whole by joining their efforts to conclude agreements. The question is: will this regulative approach of secular governments reduce painful and expensive conflicts? We shall have to wait several years to see if new laws on religions by agreement can adopt different shapes and function on different levels.

endnotes 1. Gerhard Robbers (ed.), Estado e Iglesia en la Union Europea 15–36, 57– 72, 93–117, 173–94, 231–81 (Baden-Baden: Nomos, 1996). 2. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature by the Council of Europe on November 4, 1950, Art. 9.1 (entered into force 1953) (ECHR). 3. See, e.g., Art. 14 of the ECHR; Arts. 3.1 and 4 of the Constitutional Law of the

Spain 403 Federal Republic of Germany; Art. 3 of the Italian Constitution; Art. 2 of the French Constitution; Art. 14 of the Spanish Constitution. 4. See, e.g., Art. 140 of the German Constitution; Art. 8 of the Italian Constitution; Art. 44 of the Irish Constitution. Although in the case of state churches the final decision-making authority is in the hands of the state, even with respect to strictly religious questions, there is a general tendency toward less state involvement in the state churches. 5. See, e.g., Art. 7 of the Constitutional Law of the Federal Republic of Germany; Art. 127 of the Belgium Constitution. 6. See Spanish Organic Law of Religious Freedom (LOLR); Official State Gazette 177 (1980) (BOE). 7. See, e.g., ECHR, above n. 2, Art. 9.2: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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.” See also, Art. 5 of the Italian Constitution. See Danchin and Forman, chapter 5 of this volume, regarding the way that the limitations in Art. 9 have been interpreted by the European Court of Human Rights. 8. European Union Treaty, opened for signature February 7, 1992, 68 Biblioteca de Legislacio´n Civitas, Title I, Art. F (entered into force 1992) (EUT). 9. Art. 1 of the Treaty of Amsterdam, by which are modified the Treaty of the European Union, the constitutive treaties of the European communities and particular related acts, signed on October 2, 1997. Amsterdam re-numbers all the Articles removing the alphabetic presentation in favor of the numeric one. The Articles A to F belonging to title 1 in the version of Maastricht are included with certain modifications in Art. 1 of the Treaty of Amsterdam: 133 Library of Civil Legislation, Art. 1.8. 10. Declaration about the Statute of the Churches and of Non Confessional Organizations, n. 11, Amsterdam Treaty, above n. 9. 11. Robbers, above n. 1. 12. Joseph Listl, Konkordate und Kirchenvertra¨ge in Joseph Listl (ed.), Die Konkordate und Kirchenvertra¨ ge in der Bundesrepublick Deutschland, Vol. I (Berlin: Duncker & Humblot, 1987). 13. Axel Freiherr von Campenhausen, Staatskirchenrecht 106–7 (Munich: Beck, 1983); Alexander Hollerbach, Die vertragsrechtlichen Grundlagen des Staatskirchenrechts in Joseph Listl and Dietrich Pirson (eds.), Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland, Vol. I, 270 (Berlin: Duncker & Humblot 1994); Paul Mikat, Staat, Kirchen und Religionsgemeinschaften in Ernst Brenda, Werner Maihofer and Hans-Jochen Vogel (eds.), Handbuch des Verfassungsrechts, Vol. II, 1441 (1995). 14. Campenhausen, above n. 13, 107. 15. Alexander Hollerbach, Vertra¨ ge Zwischen Staat und Kirche in der Bundesrepublik Deutschland 127–8 (1965). 16. Gerhard Robbers, Staat und kirche in der Bundesrepublik Deutschland in Gerhard Robbers (ed.), Staat und Kirche in der Europa¨ ischen Union 64 (BadenBaden: Nomos, 1995).

404 r o sa ma rı´ a martı´ nez de codes 17. Hollerbach, above n. 15, 274. 18. The Constitutional Law of Bonn was passed on May 23, 1943, the last modification was on November 15, 1994. 19. Jaime Rossell Granados, Los Acuerdos del estado con las Iglesias en Alemania [Agreements between Churches and State in Germany] 38–44 (Madrid: Centro de Estudios Constitucionales, 1997). 20. Jo¨rg Mu¨ller-Volbehr, Das Staatskirchenrecht als Gegenstand der einfachen Gesetzgebung in Bund und La¨nder in Listl and Pirson, above n. 13, Vol. I, 293. 21. Hollerbach, above n. 15, 255–65. 22. Germany is now divided into 16 La¨nder: Baden-Wu¨rttemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, SaxonyAnhalt, Schleswig-Holstein, and Thuringia. 23. All of these constitutions, except that of Brandenburg (August 20, 1992), cite Arts. 136 to 141 of the Weimar Constitution or mention Art. 140 of the Constitution of the Federal Republic of Germany (May 23, 1949), that includes the mentioned Articles from the Weimar Constitution. 24. See North Rhine-Westphalia Constitution, June 28, 1950, Art. 23 and BadenWu¨rttemberg Constitution, November 11, 1953, Arts. 7 and 8. 25. The following La¨nder have signed an agreement (Vertra¨ge) with the Jewish Community: Lower Saxony, Berlin, Hamburg, Hesse, North Rhine-Westfalia, SaxonyAnhalt, Thuringia: See Joseph Listl, above n. 12. 26. Alberto de la Hera, La autonomı´a dida´ctica y cientı´fica del Derecho Concordatario, III IVS Canonicvm 9–63 (1963); Rafael Navarro Valls, Convergencia concordataria e internacionalista en el “accord-normatif,” V IVS Canonicvm 141–52 (1965); Gaetano Catalano, Problematica Giuridica dei Concordati (Milano: Giuffre, 1963); A. Prieto, Problema´tica contempora´nea de la institucio´n concordataria in La Institucion Concordataria en la Actualidad 157–98 (Salamanca 1971). 27. Alberto de la Hera, Pluralismo y Libertad religiosa in Anales de la Universidad Hispalense (Sevilla, 1971). 28. Rik Torfs, Estado e Iglesia en Be´lgica, in Robbers, above n. 1, 19–20. 29. Gaetano Catalano, Il Diritto Di Liberata´ Religiosa (1957); F. Finocchiaro, Uguaglianza Giuridca e Fattore Religioso (1958); Anna Rava, Contributo allo Studio dei Diritti Individuali e Collettivi di Liberta´ Religiosa nella Costituzione Italiana (1959); Pio Fedele, La Liberta´ Religiosa (1963). 30. The reform of state ecclesiastic law has taken place after a significant process of secularization transformed Italian society. The introduction of divorce (1970) and the legalization of abortion (1978) are expressions of this process in the legal field. 31. The Lateranenses Pacts (1929) made possible a solution to the so-called “Rome question,” by way of the creation of the State of Vatican City and the returning to the Church of some privileges in matrimonial and economic matters, in the field of religious teaching in public schools, etc. 32. Silvio Ferrari, Estado e Iglesia en Italia, in Robbers, above n. 1, 175.

Spain 405 33. Italian Constitution (1948) Art. 8, para. 2. 34. Ferrari, Estado e Iglesia en Italia, above n. 32, 179–80. 35. Ibid. 176–8. 36. Carlos Corral and Jose Gime´nez Martı´nez de Carvajal, Concordatos Vigentes, Vol. 2 (1981). 37. I. Martı´nez Martı´n, Texto del Concordato Entre la Santa sede y espan˜ a de 27 de agosto de 1953 y Documentos Anejos (Madrid, 1961); Carlos Corral, El Concordato espan˜ol ante los concordatos vigentes in Jose Gime´nez M. De Carvajal and Carlos Corral, Relaciones entre la Iglesia y el Estado 235–75 (1976); Jose Gime´nez y Martı´nez de Carvajal, El Concordato espan˜ol de 1953 in Iglesia, Estado y Sociedad en Espan˜ a, 1930–1982 137–55 (1984). 38. See J. Amoro´s, La Libertad Religiosa en la constitucio´ n Espan˜ a [Religious freedom in the Spanish Constitution] 166–97 (1984); J. Gime´nez M. de Carvajal, Principios informadores del actual re´gimen espan˜ol de relaciones entre la Iglesia y el Estado [Formative Principles of Current Church-State Relations] in Iglesia y Estado en Espan˜ a [Church and State in Spain] 3–51 (1980); L. Echevarrı´a, La nueva Constitucio´n ante el hecho religioso [The Religion Act and the New Constitution], in El Hecho Religiosa en la Nueva Constitucio´ n Espan˜ ola [The Religion Act in the New Spanish Constitution] 43–75 (Salamanca, 1979); D. Llamazares & G. Sua´rez Pertierra, El feno´meno religioso en la nueva Constitucio´n. Bases de su tratamiento jurı´dico [The Religious Phenomenon in the New Constitution: Foundation for Judicial Interpretation], 61 Revista de la Facultad de Derecho de la Universidad Complutense 9–34 (1980); A. Molina, La cuestio´n religiosa y la Constitucio´n espan˜ola de 1978 [The Church and the Spanish Constitution of 1978], in Anales Valentinos VI/12 385–438 (1980); A. Mostaza, El nuevo re´gimen de relaciones Iglesia- Estado segu´n la Constitucio´n espan˜ola de 1978 y calificacio´n jurı´dica del mismo [The New Regime of Church State Relations Following Judicial Approval of the Spanish Constitution of 1978], in Aspectos Jurı´ dos de lo Religioso en Una Sociedad Plural [Judicial Aspects Concerning Religion in a Pluralistic society] 211 (1987); L. Prieto Sanchis, Las Relaciones Iglesia-Estado a la luz de la nueva Constitucio´n: problemas fundamentales [ChurchState Relations in Light of the New Constitution: Fundamental Problems], in La Constitucio´ n Espan˜ ola de 1978 [The Spanish Constitution of 1978] 319–74 (1981); P.J. Viladrich, Los principios informadores del Derecho Eclesia´stico Espan˜ol [Formative Principles of Spanish Ecclesiastical Law], in Derecho Eclesia´ stico del Estado Espan˜ ol [Journal of State Ecclesiastical Law] 169–262 (1983). 39. See Real Decreto1 42/1981 [RD], sobre organizacio´n y funcionamiento del Registro de Entidades Religiosas [Royal Decree 142/1981, Concerning the Registration and Function of the Registry of Religious Entities (BOE, 1981, 27); Provisio´n de 11 de mayo de 1984 sobre publicidad del Registro de entidades Religiosas [Provision of May 11, 1984 concerning Publicity of the Registry of Religious Entities] (BOE 1984, 125). See also a selected bibliography on the Registry in ME Olmos, El Registro de Entidades Religiosas [The Registry of Religious Entities] in Revista Espan˜ ola de Derecho 97–121 (1998).

406 r o s a ma rı´ a martı´ nez de codes 40. See Art. 7.1 of the LOLR. Concerning the academic debate on “notorio arraigo,” see J. Leguido, Dos cuestiones en torno a la libertad religiosa: control administrativo y concepto de notorio arraigo [Two Questions Relating to Religious Freedom: Administrative Control and the Concept of “Notorio Arraigo”], 44 Revista Espan˜ ola de Derecho Administrativo 683–8 (1984); M.J. Villa, Reflexiones en torno al concepto de notorio arraigo en el artı´culo 7 de la Ley Orga´nica de Libertad Religiosa [Reflections on the Concept of “Notorio Arraigo” in Art. 7 of The Organic Act on Religious Freedom], Anuario de Derecho Eclesia´ stico del Estado 143–84 (1985). 41. See Instrumentos de Ratificacio´n de 4 de diciembre de 1979 de los Acuerdos de 3 de enero de 1979, entre el Estado espan˜ol y la Santa Sede, sobre asuntos jurı´dicos; sobre ensen˜anza y asuntos culturales; sobre la asistencia religiosa a las Fuerzas Armadas y servicio militar de cle´rigos y religiosos; y sobre asuntos econo´micos [December 3, 1979 Instrument of Ratification of the Accords of January 3, 1979 Between the Spanish State and the Holy See, Concerning Judicial Matters; Teaching; Cultural Matters; Religious Participation in the Armed Forces and Military Service of Clergy; and Concerning Economic Matters] (BOE 1979, 300). There are two preconstitutional Agreements still in force: Instrumento de ratificacio´n de 29 de mayo de 1962, del Convenio de 5 de Abril de 1962 entre el Estado espan˜ol y la Santa Sede, sobre reconocimiento a efectos civiles, de estudios no eclesia´sticos, realizados en Universidades de la Iglesia [Ratification Instrument of May 29, 1962 of the Agreement of April 5, 1962 between the Spanish State and the Holy See Concerning Recognition of the Civil Effect of Ecclesiastical Studies Realized in Church-Sponsored Universities] (BOE, 1962, 173); Instrumento de ratificacio´n de 19 de agosto de 1976 al Acuerdo de 28 de julio de 1976, entre la Santa Sede y el Estado espan˜ol [Ratification Instruments of August 19, 1976 of July 28, 1976 Accord between the Holy See and the Spanish State] (BOE 1976, 230). 42. Act 24/1992, 25/1992 and 26/1992, (BOE 1992, 272). See also P. Lombardı´a, Los acuerdos entre el Estado y las Confesiones religiosas en el nuevo Derecho eclesia´stico espan˜ol [The Accords Between the State and Religious Denominations in the New Spanish Ecclesiastical Law], in Nuove Prospective per la Legislazione Ecclesiastica [New Perspectives on Ecclesiastical Legislation] (1981); D. Llamazares, Acuerdos del Estado con las Confesiones Religiosas (Ferede y FCI) [State Agreements with the Religious Denominations] (1990); J.A. Souto Paz, Derecho Eclesia´ stico del Estado [Ecclesiatical Law of the State] (1992). 43. Instrumentos de ratificacio´n, above n. 41. 44. See Arts. 7 and 12 of Act 24/1992; Arts. 7, 12 and 14 of Act 25/1992; Arts. 7, 12 and 14 of Act 26/1992 (BOE 1992, 272). 45. See Art. 1.1 and 2 of Act 24/1992, 25/1992 and 26/1992 (BOE 1992, 272). 46. See Art 1.3 of Act 24/1992; 25/1992 and 26/1992. 47. For a study of administrative resolutions, see M.J. Roca, Aproximacio´n al concepto de fines religiosos [Approximation of the Concept of Religious Ends], 132 Revista de Administracio´ n Pu´ blica 453–60 (1993). 48. See, e.g., N.B. Cooper, Catholicism and the Franco regime (1975); G. Hermet, Les Catoliques dans l’Espagne Franquiste 2 vols. (1981); S. Giner,

Spain 407 L. Flaquer and L. Moreno, Espan˜a en la encrucijada in Salvador Giner (ed.), Espan˜ a: Sociedad y Politica 19–74 (1990). 49. The Cairo Declaration on Human Rights in Islam, adopted and issued at the Nineteenth Islamic Conference of Foreign Ministers in Cairo on August 5, 1990, Art. 24: “All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari’a.”

Chapter 13 t h e p r ot e ct i on of r e l i g i o u s m i n o r i t i e s i n b e l gi u m : a w e s t e r n e u r o p e a n p e r s p e c t i v e Willy Fautre´

Belgium is a multicultural, multilingual, and multireligious federal state with about ten million inhabitants. Since its creation in 1830, the Catholic Church has enjoyed a privileged status as a two-tiered system that distinguishes between recognized and nonrecognized religions. Minority religions are to be found in both categories but no specific law defines their rights and obligations. This essay analyzes the general constitutional guarantees relating to freedom of religion and belief; the historical process of state recognition of the majority religion and a number of minority religions; and the financing of recognized religions by the state. It also scrutinizes how minority religions have been treated by the Belgian parliamentary commission on cults and how the commission has taken into account their major concerns and claims. Belgium’s two-tiered system and the pattern of religious inequalities and discrimination deriving from it is typical of most countries within the European Union. The challenge now is to construct a new model of the relationship between the state and its citizens, whatever their religious or philosophical beliefs, not only for Belgium but also for the entire European continent.

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I. CONSTITU TIONAL GU ARANTEES RELATING TO FREEDOM OF RELIGION AND BELIEF Belgium obtained its first constitution on February 7, 1831, shortly after gaining independence. This constitution was a model and a source of inspiration for other states in Europe in the nineteenth century: for example, Spain, Greece, the Netherlands, Luxembourg, and Romania. It guaranteed basic freedoms: freedom of the press, education, association, and religion. Since then, it has been regularly amended to reflect the evolution of accepted societal values and norms in Belgium. The last fundamental revision took place in 1994, establishing Belgium as a federal state with three communities: the French, Flemish, and Germanspeaking communities; three regions: the Wallonian, Flemish, and Brussels regions; and four linguistic regions: the French-speaking, Flemish-speaking, and German-speaking regions as well as the bilingual region of Brussels. The new constitution comprises 198 articles and transitional provisions. This constitution, which can be called the second constitution of Belgium, was signed and promulgated by King Albert II on February 17, 1994. Very few articles deal with religious freedom, directly or indirectly. Those that do are concentrated under Title II “About the Belgians and Their Rights.” Article 11: Enjoyment of the rights and freedoms recognized for Belgians should be ensured without discrimination. To this end, laws and decrees guarantee notably the rights and freedoms of ideological and philosophical minorities. Article 19: Freedom of worship, public practice of the latter, as well as freedom to demonstrate one’s opinions on all matters, are guaranteed, except for the repression of offences committed when using this freedom. Article 20: No one can be obliged to contribute in any way whatsoever to the acts and ceremonies of a religion, nor to observe the religious days of rest. Article 21: The State does not have the right to intervene either in the nomination or in the installation of ministers of any religion whatsoever, nor to forbid these ministers from corresponding with their superiors, from publishing their acts, except, in the latter case, taking into consideration normal responsibilities in matters of press and publication. A civil wedding must always precede nuptial benediction except in cases established by law, should this be necessary. Article 24 § 1: Education is free; any preventative measure is forbidden; the repression of offences is only governed by law or decree.

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• •

•

The community offers free choice to parents. The community organizes neutral education. Neutrality implies notably the respect of the philosophical, ideological or religious conceptions of parents and pupils. The schools organized by the public authorities offer, until the end of obligatory schooling, the choice between the teaching of one of the recognized religions and non-denominational moral teaching.

§ 3: Everyone has the right to education with the respect of fundamental rights and freedoms. • Access to education is free until the end of obligatory schooling. • All pupils under compulsory schooling have the right to moral or religious education at the community’s expense. § 4: All pupils or students, parents, teaching staff or institutions are equal before the law or decree. The law and decree take into account objective differences, notably the characteristics of each organizing authority, that justify appropriate treatment. Art. 181 § 1: The State awards remuneration and pensions to religious ministers; those amounts required are included in the budget on an annual basis. § 2: The State awards remuneration and pensions to representatives of organizations recognized by the law as providing moral assistance according to a non-denominational philosophical concept; those amounts required are included in the budget on an annual basis. Given the unique character of these provisions, some commentary and clarification is required. Article 11, which provides for the rights of “ideological and philosophical minorities,” can be interpreted as a safeguard of the rights of religious minorities.1 Article 19 does not explicitly guarantee “religious freedom” or “freedom of religion” in the broad sense of those expressions but “freedom of religious practices” or “freedom of worship” (liberte´ des cultes). This approach reflects the fact that in 1830 the Constitutional Assembly was more interested in protecting the external manifestations of religious life than in the contents of certain faiths or belief systems and their sources of inspiration. Because the Belgian juridical system has expressed no common opinion about the concept of “culte,” therefore a clearly established definition of it does not exist. Constitutionalists currently agree, however, on a wide interpretation of the word “culte,” which is supposed to comprise all religious and philosophical beliefs.2

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This freedom includes the right to have a belief and to change it.3 This definition is critical because a “culte” can enjoy exemption from taxes on land and property. The expression “religious freedom” is never used in the Belgian constitution. The wording that is used recurrently to express this idea is liberte´ de(s) culte(s), which is a source of misunderstanding. “Culte” has nothing to do with the English word “cult,” a synonym of “sect.” It cannot be translated into English, and according to the context, several approximate formulations must be used, such as “religious practices,” “worship,” or “religion.” The last part of Article 19 somewhat limits the public practice of the freedom of worship and the freedom of expression on all matters inasmuch as these rights are no longer guaranteed when offenses are committed. These restrictions are determined by general penal laws and by two specific articles of the Penal Code concerning the conduct of religious ministers in the practice of their pastoral duties. Article 267 provides for a fine if a religious minister performs a religious marriage (called nuptial benediction in the Constitution and the Penal Code) before a civil wedding and for an imprisonment of eight days to three months in the event of the repetition of the offense. Article 268 provides that: “An imprisonment of eight days to three months and a fine will be imposed on religious ministers who, in the practice of their pastoral duties, have directly attacked the government, a law, a royal decree, or any other act of the public authorities through speeches held before public assemblies.” The first restriction dates back to the beginning of the nineteenth century when Belgian territories were under French and Dutch rule. Catholic priests in the countryside failed to have religious marriages registered by civil authorities. Consequently, this strictly religious act remained without civil effect and was therefore detrimental to children. The aim of the law on the anteriority of civil wedding was to guarantee their rights. The second restriction is controversial. According to a prominent commentator, O. Orban, this law contravenes the principle of equality of all Belgians before the law, now enshrined in Article 10 of the Constitution.4 Before the bill on abortion was adopted by the parliament, Belgian Archbishop Danneels reminded Catholics that abortion was not compatible with the Church’s teachings. His publicly voiced stance was perceived as a criticism of the law and morally condemned by socialist and liberal parties as an intrusion into the political debate. In the 1960s and 1970s, a number of priests involved in social struggles criticized some governmental policies from their pulpits. They were criticized by their hierarchy and the conservative parties but they were never sued. The Catholic priests, called preˆtres-ouvriers, were also working in factories, coal-mines etc. The separation between church and state and the prohibition of any state

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interference in the internal matters of a religion are basic principles that are clearly enshrined in Article 21. The latter, however, does forbid the performance of a nuptial benediction by a “religious minister” before a civil marriage.5 Article 24, which deals with school education, consists of five paragraphs. This is not surprising for those who know how sensitive this issue has always been throughout the entire history of the country. The Belgian state subsidizes a network of Catholic schools which has always been more extensive than the network of public schools. Catholic religious education classes are conducted in the Catholic schools. There are also some Jewish and some Protestant schools that include their own religious classes in their curriculum. In public schools that are under the authority of one of the three communities (French-speaking, Flemish-speaking, and German-speaking) or the authority of the provinces and municipalities, a free choice of religious classes is offered to the pupils insofar as it is related to a recognized religion. Article 181 makes the state liable for the wages and retirement pensions of the clergy of the six religious denominations (cultes) recognized by the state and for those of the moral secular advisers appointed by a nonreligious philosophical movement (Conseil Central Laı¨que, or “Secular Central Council). Apart from these constitutional guarantees, it is also worth mentioning that Belgium ratified the Charter of the United Nations (June 25, 1945), the European Convention of Human Rights (June 14, 1955), the International Covenant on Civil and Political Rights (May 15, 1981), and the European Union Treaty of Amsterdam (February 19, 1999). The provisions of these instruments have been incorporated in domestic law through laws adopted by the parliament when it was necessary. Belgium also signed a number of international instruments guaranteeing freedom of religion and belief: The Final Act of the Conference on Security and Cooperation in Europe (August 1, 1975), The Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief (November 25, 1981), the Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the Conference on Security and Cooperation in Europe, Held on the Basis of the Provisions of the Final Act Relating to the Follow-up to the Conference (January 15, 1989), the Document of the Copenhagen Meeting (June 1990), and the Charter of Paris for a New Europe (November 1990).

II. THE HISTORIC AL PROCESS OF STATE REC OGNITION OF RELIGIONS When Belgium became an independent state in 1830, the laws, decrees, orders, and regulations preceding the Belgian Constitution remained in force, inasmuch as these provisions were not replaced or abolished by the new constitu-

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tion. Therefore, Catholicism (since 1802 under French rule), Protestantism (since 1802), and Judaism (since March 17, 1808) enjoyed the de facto status and financial advantages of state recognition. After the promulgation of the constitution, other religions (cultes) were recognized by a law or by royal decree. Anglicanism was recognized by two royal decrees (April 18 and 24, 1835). Catholicism, Protestantism, Judaism, and Anglicanism were again explicitly recognized by a law on the temporal needs of the religion (culte) released on March 4, 1870. More than a century later, they were followed by Islam (law of July 19, 1974 amending the law of March 4, 1870) and finally Orthodoxy (law of April 17, 1985 amending the same law of 1870). Moreover, secular humanism (laı¨cite´) has indirectly enjoyed state recognition since the last revision of the constitution. Article 181§2 of the new constitution states that the wages and retirement pensions of the moral secular advisers providing moral assistance are to be paid by the state. The inclusion of Article 181§2 was not legally necessary6 because the state budget already allotted an annual subsidy to the organization officially representing secular humanism, and the salaries and the pensions of the moral secular advisers in the army were allotted in the law of February 18, 1991. It cannot be denied, however, that the inclusion of Article 181 grants a certain constitutional recognition to secularism, which is not without psychological impact even outside Belgium. It is indeed striking that through the Declaration on the Status of Churches and Nonconfessional Organizations accompanying the Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (October 2, 1997), the statesmen of the European Union also decided to stress the importance of nonreligious thinking. As can be seen from this short historical overview, very few groups have been granted recognition since 1870, although a number of minority religions have applied for this status. Except for the phrase “utility for society,” there are no official criteria for granting state recognition. In 1985, Jean Gol, the then Minister of Justice (and a member of the Liberal Party PRL and of the Jewish community) tried to establish some criteria for the recognition of a religion: Its membership (several tens of thousands, even though in 1830, Judaism enjoyed de facto recognition with only 1,000 members), its historicity, and its utility to society. He felt that the worldwide dimension of a religion was not a sufficient criterion. His considerations were never enshrined in a law, however, and the basic problem of defining a culte still remains. The Belgian recognition system has always been based in a de facto manner on the monolithic structure and the functioning of the dominant Roman Catholic Church, an ecclesiastical structure with a clear hierarchy and clear territorial divisions. It is exceptional, however, for a religion to be monolithic. There is a wide range of Protestant denominations, of Orthodox churches, of schools

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in Islam (Shi’ites and Sunnis), in Buddhism, in Hinduism, and in other groups. Some religions have no hierarchy or no clergy. In an increasingly multireligious society, this variety is a challenge to the Belgian system, which now seems outdated and quite inappropriate. Failing to find a clearly identifiable interlocutor, the Belgian state is consequently not only unable—but also without the political will—to recognize more religions (i.e., Buddhism and Hinduism); or else it recognizes only some parts of religious communities. Orthodoxy is recognized only through the Greek and Russian Orthodox Churches. The United Protestant Church of Belgium (EPUB),7 which is the legal heir of Protestantism recognized by the state in the nineteenth century,8 now represents less than half of the Protestant population.9 About fifty percent of the Belgian Protestants adhere to unrecognized Evangelical, Pentecostal, Adventist, and other related churches, which are united in an umbrella organization called “Federal Synod of Protestant and Evangelical Churches in Belgium.” Islam is recognized but has failed until now to fulfill a number of conditions such as an administrative umbrella organization reflecting its various components in Belgium.10 Secular humanism (la laı¨cite´), the symbol of which is the torch, is not monolithic either. Only a portion of the secular humanists, free thinkers, agnostics, and atheists identify themselves with the Central Secular Council (Conseil Central Laı¨que), which the state considers as the administrative body representing secular humanism. Recognition entails several material benefits that are described extensively under the heading “State Financing of Recognized Religions,” but following is a list of a number of these. Clerics get (modest) wages from the state and appropriate housing from the municipalities or the provinces. Legal personality is attributed to the fabriques d’e´glises, or ecclesiastical administrations responsible for the temporal needs of a recognized religion. Free public radio and TV broadcasting time is put at their disposal. They can appoint army and prison chaplains, whose salaries are paid by the state. They are entitled to provide religious instruction in public schools. This general overview clearly highlights two categories of minority religions. A number of them are recognized by the state and enjoy, to some extent and with the exception of Islam (about 250,000 members), the financial and material advantages described briefly above. They are Judaism (about 40,000), United Protestant Church of Belgium (about 40,000), Orthodoxy (about 40,000), and Anglicanism (about 6,000). Nonrecognized minority religions do not enjoy any of the advantages linked to the status of state recognition. They include: Protestantism, represented by the “Federal Synod of Protestant and Evangelical Churches in Belgium” (about 50,000 members) and by independent congregations (about 10,000 members), Jehovah’s Witnesses (about 25,000 members and 50,000 churchgoers), the Church of Scientology (claiming about 5,000), Mormons (about 3,000–4,000), and Buddhists (about 3,000). Smaller,

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unrecognized groups, numbering some hundreds of members, are Baha’is, Hare Krishna, Sahaja Yoga, Sukyoˆ Mahikari, and the Rae¨lian movement. Groups with fewer than 150 believers include The Family, Soka Gakkai, Unification Church, Nouvelle Acropole, Fraternite´ Blanche Universelle, Human and Universe Energy, Igreja Universal do Reino de Deus, Church of Christ of Brussels, Ogyen Kunzang Choˆling, Le Mouvement, Institut Gnostique d’Anthropologie, Ecoovie, and Antoinism.11 The Federal Synod of Protestant and Evangelical Churches in Belgium has asked for state recognition independently from the EPUB but to no avail. Jehovah’s Witnesses, which have a monolithic structure and a clear leadership like the Roman Catholic Church, have also unsuccessfully applied for state recognition. Their request for recognition did not include any request for financial advantages; rather, it was in order to be able to bring spiritual assistance to their members in hospitals and detention places for asylum-seekers, etc. Other smaller religious groups have also asked for state recognition but with the same negative outcome. This quest by religions for state recognition provides evidence that the religions feel the need for state legitimacy, but ruling on this issue is not the role of the state, and such a trend should not be encouraged. It contradicts the basic constitutional principles of separation between church and state, and it might, in the long term, trigger a dangerous process of state interference in the religious sphere.

III. STATE FINANCING OF REC OGNIZED RELIGIONS The state financing of recognized religions was enshrined in Article 117 of the 1831 Constitution, and became Article 181 in the 1994 Constitution. However, the Catholic Church was not originally in favor of such a system. In 1824, when the current Belgian territory was part of the United Kingdom of the Netherlands, the representative of the pope, Msgr. Nasalli, was opposed to a system of church financing based upon the payment of wages and retirement pensions of its religious ministers by the state because he did not want the Catholic clergy to be treated as civil servants. He proposed a donation of real estate, which could help the church develop its own financial policy.12 After Belgian independence, this issue became irrelevant. Most politicians, both Catholics and liberals, agreed to the payment of wages to religious ministers. The only issue was the legal basis to be given to such a financing system. Msgr. De Me´an, archbishop of Malines, claimed such payments as a legitimate compensation for church property confiscated during French rule (1795–1814). In the debates in the National Congress, however, liberal members proposed extending state wages to Protestant clergy and Jewish rabbis as well, on the

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grounds that they all rendered a valuable social service to the country. On the basis of their “social utility,” a concept which remains undefined by the state, more (minority) religions and secular humanism have since been financed by the state.

a. institutions involved in state financing Eight federal ministries, the ministries of the three communities, the ministries of the Flemish, Walloon, and Brussels regions, and the administrations of the ten provinces and the municipalities are involved in the financing of the recognized religions and secular humanism. The Ministry of Justice covers the wages, allowances, and bonuses of religious ministers and moral secular advisers; the wages of chaplains working for the Office for Youth Protection; and the wages, allowances, traveling expenses, and worship material of prison chaplains. The Ministry of Finance pays the retirement pensions and grants tax exemptions on religious property. The Ministry of National Defense pays the wages of army chaplains, of Catholic nuns in military hospitals, and of military organists and choir leaders, and it pays for the religious material in military chapels. The Ministry of Interior, the Ministry of Communications and the Ministry of Public Health respectively pay the wages of the gendarmerie (national police), of naval and air force chaplains, and of hospital chaplains. The Foreign Ministry pays the wages of missionaries, their medical expenses, and their traveling expenses. The Ministry of Public Works finances the rehabilitation of places of worship to be preserved in Brussels and the repair of war damage to places of worship. The three communities pay the wages of chaplains for immigrants. They also grant subsidies to students in Catholic theology, to the Institute of Judaism, to the faculty of Protestant theology, and to Protestant social services, and they finance the radio and television religious broadcasts, including masses and religious offices. The Flemish and Walloon regions cover expenses for renovating places of worship to be preserved and grant tax exemptions on religious property. According to Article 37 of the Imperial Decree of December 30, 1809, the municipalities and provinces have to pay the balance of payments deficits and the extraordinary expenses of the ecclesiastical administrations responsible for the temporal needs (fabriques d’e´glises) without really being allowed to check their income or expenses. This substantial part of the budget represents about half of the total financing of the recognized religions. Tax exemptions are also granted on religious property. The six recognized religions and secular humanism are financed by all the taxpayers, including those (about 130,000) who do not belong to them but are members of unrecognized minority religions, which cannot benefit from all the aforementioned advantages subsidized by the relevant ministries.

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b. budget for recognized religions There are no official statistics about the contribution of the federal ministries, the communities, the regions, the provinces, and the municipalities to the financing of the recognized religions. According to research work carried out in 1990 by the Centre d’Action Laı¨que,13 however, the total financing of religions could be estimated at 10,064,500,000 BEF (about $26,485,526) in 1987 and at 12,720,270,000 BEF (about $33,474,394) in 1990 for 10 million inhabitants. Since then, no similar study has been carried out by any institution to update these figures. An extrapolation for 1998 would yield a figure of about 20,000,000,000 BEF for 10 million inhabitants. The criteria selected to determine the number of ministers to be paid are not the same for all recognized religions. With regard to minority religions, the number of their faithful is taken into consideration although any religious census is forbidden by law. Moreover, no budget is available for Islam, but this point will be analyzed later in this essay. For the Catholic Church, the criterion is the number of inhabitants of a certain place or area, regardless of whether all are Catholics or not. Such double standards are clearly discriminatory. The situation of the clergy of the six recognized religions to be subsidized is shown in table 13.1:14 A brief analysis of this table reveals two striking elements: first, the gap between the framework and the ministers effectively paid in the Roman Catholic Church, a topic to which I return below, and second, the absence of any payments to ministers in Islam, which will also be discussed below. Until recently, the state required that religious ministers be priests or, since 1982, priests or deacons. However, a vocational crisis in the Catholic Church as a result of the decreasing attractiveness of the priesthood has led to a much lower number of available clerics. Rik Torfs, Professor of Canon Law at the University of Louvain, has analyzed the reasons for this situation: 15 For a long time, an important discussion issue in the Belgian church was whether lay people should or could serve as religious ministers. There was no legal or canonical reason why they could not: The notion ‘religious minister’ is unknown in the Code of Canon Law of 1983. It only exists in state law. Consequently, there can be no theological or canonical reason for not including lay people. Yet, church authorities hesitated for a long time to plead in their favour and to ask state authorities for the payment of their wages. In general, two reasons could explain their reluctance: (a) Some pressure from Roman authorities fearing some confusion between the tasks of lay people and clerics in the church; (b) Some more personal concerns of Belgian bishops who feared that lay people might be intellectually more independent than clerics and would, in the

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table 13.1 Statistics About the Clergy: 2000 Religion Roman Catholicism Protestantism Anglicanism Orthodoxy Judaism Islam Total

Frameworka

Ministers effectively paid

6,918 108 12 45 34 — 7,117

4,849 97 10 43 31 — 5,030

a. Framework is a technical administrative word encompassing the number of religious ministers that the state agrees to pay.

long run, be legally protected by labour contracts limiting the discretionary power of the bishops. After many years of internal church discussions, the bishops made the decision to start negotiations with the state. The outcome of these negotiations was not a complete success for the church. A new system started on 1 January 1997, allowing payment for the year 1997 of forty lay people but only in functions in which they immediately replaced a cleric. In other words, lay people can occupy one of the 5,052 effectively occupied places, but the 1,359 unoccupied places can only be taken by clerics and these are definitely not available, so that the framework of 6,411 people is only theoretical. Another negative point: The salaries of lay people working as religious ministers are the same as the clerics’ salaries, which means low. In any case, they are not generous enough to raise a family, which may not be an issue for a priest but may be for a lay person. The theoretical framework is one thing, its practical implementation is another. Skillful negotiation with the authorities is quite important. In this regard, the Central Secular Council was more successful than the Catholic Church. From 1997 to 2000, its budget was progressively increased from 122.4 million BEF (about $3,221,052) to 313,5 million BEF (about $8,250,000).16 For 2000, it was more than twice the budget of Protestantism, Anglicanism, Orthodoxy, and Judaism put together, although its membership is quite unknown and impossible to calculate. This reflects both the power of secular humanism in Belgium and the discriminatory character of the state financing system. Secular humanism and Islam receive a global subsidy because they have no clergy and cannot therefore fall into the category of other recognized religions. For 2000, Islam received 20,000,000 BEF ($526,315) and secular humanism 313,500,00 BEF ($8,250,00).17 The initial budget of the Federal state to finance the clergy of recognized

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table 13.2. Disparities Between Recognized Minority Religions Religion

Clergymen

Total

effectively paid

amount (BEF)

%

5,240 — 85 40 26 11

3,275,563,527 — 77,965,198 32,984,010 19,238,696 7,999,608 122,400,000 3,536,151,039

92.63 — 2.20 0.93 0.55 0.23 3.46 100a

Roman Catholicism Islam Protestantism Orthodoxy Judaism Anglicanism Secular Humanism Total a. This is about 99,000,000 USD.

religions for 2000 was 3,396,300,000 BEF ($ 89,376,315), split as follows: Roman Catholicism, 2.74%; Anglicanism, 0.23%; Orthodoxy, 1.03%; Judaism, 0.68%.18 The current financing system is based on the number of clerics, but if it were based on the number of members, the percentages would look very different: Judaism, recognized Protestant, and Orthodox churches have a similar membership. Some scholars claim that church attendance should be the major criterion to be used for the financing of religions. Table 13.219 clearly shows the discriminatory disparities existing between the recognized minority religions with regard to their membership.

c. catholic church attendance since 1980 Considering the part of the budget granted to the Catholic Church, it is appropriate to mention some statistics about the evolution of Catholic Church attendance, the number of baptisms, marriages, and funerals since 1980.20 This information is found in table 13.3. Some complain that the yearly budget of the Catholic Church is increasing steadily while the temporal needs (number of clerics, and places of worship) of its faithful are diminishing and ask for a reduction of state financing. They propose to use the same criterion as for minority religions (the number of faithful) as a norm.

IV. PARL IAMENTARY C OMMISSION ON CULTS AND MINORITY REL IGIONS After the gas attack in Tokyo’s subway by the Aum Shin and the homicidesuicides of the Order of the Solar Temple, Belgium was the first European

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table 13.3. Evolution of Church Attendance (%) Year

Baptismsa

Marriagesb

Funeralsc

Sunday Massd

Wallonia 1980 1990 1995

82.3 74.2 70.4

73.4 58.1 55.1

78.2 76.8 75.1

21.5 14.6 11.2

Flanders 1980 1990 1995

89.0 83.1 79.1

81.5 64.5 54.5

90.7 88.8 86.0

32.2 21.3 15.2

Brussels 1980 1990 1995

44.9 34.4 29.7

44.7 28.1 24.3

64.2 60.4 51.7

12.0 8.8 7.4

Belgium 1980 1990 1995

82.4 75.0 70.9

75.7 59.1 52.0

83.0 81.4 78.6

26.7 17.9 13.1

a. In comparison to the total number of children born in Belgium in the same year b. In comparison to the total number of civilian marriages celebrated in the same year c. In comparison to the total number of deaths in the same year d. In comparison to the total number of people having reached the age of compulsory Sunday Mass attendance.

country after France to set up a parliamentary commission on cults. Until then, the relationships between the Belgian state and its minority religions had always been peaceful and harmonious. Things began to change when the Commission started its work on April 25, 1996, and released its report on April 28, 1997. The reported listed 189 “movements.” Almost all were non-recognized minority religions and a number of their satellite organizations. Among them were the Soka Gakkai, a Buddhist movement of about 15 million members, and more than twenty Protestant movements: Pentecostal Evangelical Action, SeventhDay Adventists, Amish, Assemblies of God, Calvary Christian Center, Celestian Church of Christ, Christian Church, Bethel Pentecostal Church, Christ’s Church in Brussels, Evangelical Free Church, International Church of Christ, Universal Church of God, Universal Church of the Kingdom of God, Flemish Evangelical, Reformed Evangelism Center Essen, Darbyst Brothers’ Assemblies, Religious Fellowship of Friends (Quakers), Charismatic Revival, Association of Flemish Pentecostal Assemblies, Flemish Free Evangelical Pentecostal

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Assemblies, Youth With a Mission, Operation Mobilization, and Young Women’s Christian Association (YWCA), but not, for some mysterious reasons, the Young Men’s Christian Association (YMCA). And finally, the Satmar, a Jewish community, which has become an important test case for religious freedom and freedom of education in the U.S.21 Another curious fact is that some organizations belonging to the Catholic Church were also targeted by the Belgian Commission: The Charismatic Renewal, Opus Dei, The Work (recognized in twenty European dioceses and with its headquarters in Rome), the community of San Egidio, and the small Opstal community led by Jesuit fathers (which was mistakenly mentioned in the list of 189 controversial movements). It is also curious to note that no Muslim congregation or organization was put on the list of cults. Finally, the most striking recommendation of the Sect Report was the draft law that the Parliamentary Commission proposed to introduce into the Belgian Penal Code and that provides for a sentence of two to five years in prison and/ or a fine for those among cults, that is to say minority religions, who use beatings, violence, threats, or psychological manipulation to persuade an individual of the existence of false undertakings, imaginary powers, or imminent fantastic events. This unusual and mass-scale targeting of minority religions is unique in Belgian history and can be explained—but not justified—by the anticlerical and atheist forces that were represented at the highest level of the Parliamentary Commission on Cults.

a. those called as witnesses Some of the methodology chosen by the Parliamentary Commission helps to explain the deviation in the results of its work. The Belgian Commission did not invite witnesses representing some of the religious movements but heard them “at their request,” while representatives of anti-cult associations were duly invited. When hearing the testimony of those defending the minority religions, the Commission did not seem to be interested in learning about the specific characteristics of each group or movement. On the contrary, it accused the witnesses coming from so-called cults of violations of specific laws or of unsubstantiated assertions based either on newspaper articles or, frequently, on publications of anti-cult movements. Among the thousands of ex-members of new religious movements, the Commission chose to hear about fifty, most of whom had adopted a militant attitude toward the groups that they had left. Almost all repeated the anti-cult accusation of “mental manipulation.” The Commission did not examine any statistical study on the opinions of ex-members in general. Nor did the Commission grant a hearing to representatives of the international community of psychiatry who reject the model of “mental manipulation.”

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b. conflicts between the accounts With regard to minority religions, different and even opposing accounts were provided by current members, ex-members (who were hostile, indifferent, or even still favorable toward the group that they had left), anti-cult associations, academic specialists, major churches, and the media. It is difficult—especially for a non-specialist—to determine which account is closest to reality. The method used by a parliamentary commission should be at least that of a “par condicio” (condition of parity) between the different sources. Following the example of the French Commission, the Belgian Commission opted for different methods. First, an anti-religious bias, which has profound roots in the history of secularism and anticlericalism in Belgium, was often displayed in the interventions of the President of the Commission and in his dialogue with the witnesses. For this reason, a source of information about the movements under examination was ignored, namely, the official representatives of the majority churches. Unfortunately, they were deliberately ignored. It would have been more instructive to know what the Catholic Church thinks of the indictment of The Work, the Charismatic Renewal, or Opus Dei. As compensation, the views of a marginal Catholic priest, Rick Deville´, were given extensive coverage. This priest is the author of a defamatory publication about The Work, in which he questions whether the Catholic Church has not become a “sect” under the pontificate of Pope John Paul II. Second, in the category of “authors,” six witnesses were given a hearing: the author of a study on the Internet and five authors of virulently anti-cult books. The choice of such writers is questionable, as academic literature about new religious movements is abundant.22 That non-Belgian authors were invited to the hearing shows that it would have been easy to find dozens of authors with diverse and more balanced opinions among journalists, psychiatrists, and clinical psychologists. Additionally, among the representatives of associations who were invited, four belonged to Belgian anti-cult associations. The fact that the minutes of their hearings have been publicized is a positive aspect of these hearings. The minutes reveal the inconsistency and the cultural bias of the anticult associations’ comments. These comments ignore the scientific literature on new religious movements and are based on the anti-sect movement’s own texts or on newspaper clippings. It is surprising that the Belgian Commission did not invite representatives of organizations that take an alternative approach to the problem, such as INFORM (Information Network Focus on Religious Movements), which is based at the London School of Economics in Great Britain and which is consulted by the government and supported by major churches. It is also surprising that important associations of sociology and history of religion, which often deal with these problems, were ignored. For example, the current chairperson of

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SISR (The International Society of Sociology of Religion), Professor Liliane Voye´, is Belgian. Even so, ex-members of forty-nine movements received a hearing following the request of the Commission, obviously at the recommendation of the anticult movements. Ten of the attacked movements requested and received a hearing. (An eleventh, the Sahaya Yoga, explained by letter the reasons why it preferred not to be present). All these elements show that the Commission preferred to listen almost exclusively to anti-cult accounts. This methodology helps to explain why minority religions were so heavily targeted and why they suffered from so much latent intolerance after publication of the report.

c. factual errors The Belgian Sect Report contains a number of paradoxical and serious errors. Several of the incriminated movements, including those that were not given sufficient time to prepare a statement of defense or those that were not even aware that they had been targeted until after the release of the report, requested that the Commission correct those mistakes, but they were told that the report had been published and that it was too late to make amendments. The following are several examples of these gross errors: (a) The Bahais were said to be “first and foremost a group having financial and political interests which, like Scientology, wants to establish a new world order, a new nation with only one master.”23 (b) Suˆkyoˆ Mahikari24, “one of the most dangerous sectarian organizations in our country ,” is allegedly “ an extreme right group, using symbols such as the swastika.” It was also stated that the group’s main aim was collecting money. One statement seems to ignore the fact that the use of the swastika as a religious symbol in Asia predates the National Socialists by at least 2,000 years. The other accusations are without foundation. (c) Jehovah’s Witnesses25 seemingly prefer boys, as “little girls are systematically depreciated as compared with the male members of the family; they are beaten and subjected to continuous physical violence.” This very grave accusation (which is false) is reported in the synthesis of the testimonies without any verification or evidence. (d) The Satmar community26 (for which the Commission prefers the spelling “Szatmar), which is a part of Hasidic Judaism and which is widely known in Antwerp, is described as being “close to the centre of the diamond industry,” and as having “considerable economic impact.” It is also portrayed as having “rather difficult relations with the judiciary” because it is said to apply the “principle that a Jew does not denounce another Jew—even a criminal—to a non-Jew.” In the United States, the judges are said to “close their eyes to certain

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things for fear of seeing this electoral block (Satmar) turn against them when their mandate is again at stake.” “Finally, cases of kidnapping children and harbouring them in the international branches of the movement would not be isolated practices.” Contrary to the observations of the Belgian Commission, the Satmar community has been extensively studied by specialists, particularly—but not exclusively—in the United States. The accusation of “kidnapping children” who would then be “harboured” was influenced, in Belgium, by a well-known case—that of Mrs. Patsy Heymans, whose former husband, a Satmar, took away their three children, despite a contrary decision issued by a Belgian tribunal. But aside from specific reference to the Heymans case, the accusation appears to derive from the ideological headquarters of the worst antiSemitic propaganda. According to the Federation of Flemish Pentecostal Churches, the information about their churches included in the report is often inaccurate and muddled.27 For example, the number of churches, which the report provides for the whole of Belgium, is in fact the number for Flanders only; the quoted figure for world-wide Pentecostal membership is in fact the membership of one single Pentecostal denomination (The Assemblies of God); names of some organizations are misspelled, while others no longer exist or have never belonged to the Pentecostal movement. Most of these “facts” were included in the report on the testimony of a single witness, who left the movement many years previously. No further checks were carried out. The charges against the Pentecostal Churches are also unusual; rather than being accused of any illegal activity, they are accused because of their teachings on moral issues. These teachings are, incidentally, similar to the teachings of the Vatican, i.e., prohibiting premarital sex or remarriage after divorce. Forbidding the former, may, according to the sect report, “cause anorexia, bulimia, psychiatric treatments and suicide.” At a press conference held at the European Parliament on May 20, 1998 by the Belgian citizens’ Forum Against Religious Intolerance, Discrimination and Inequalities, under the authority of David Hallam, a member of the European Parliament (UK/ Labour), several witnesses exposed errors in the “facts” and methodology of the Belgian Sect Report. In addition, Henri Van der Veken, the representative of the 75-year-old Belgian Adventist Church, and Jean-Pierre Laperches, the chairman of the Baha’is (which has a fifty-year presence in Europe), talked about the unexpected difficulty of renting a public hall because their movements were on the black list. Laperches was also indignant about the Religious Department of the Ministry of Justice, which turned down his request for a meeting by stating that “the Ministry of Justice only deals with recognized religions.” This in effect means that the Belgian state refuses to talk with representatives of about 130,000 of its citizens because they belong to a nonrecognized minority religion. Rabbi Abraham Malinsky, inspector of Jewish

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religious classes in public schools, complained that “Belgium was the first European State since the end of World War II to publish such hostile and unsubstantiated statements against a prominent group of Orthodox Jewry.” Pastor Raymond Vandeput highlighted a divorce case in which a mother tried to deprive her former husband, an Evangelical Protestant, of his right to keep their children on weekends because he was taking them to the religious offices of a so-called sect on Sundays. In other divorce cases involving Jehovah’s Witnesses, members of the Sahaja Yoga, and others, similar accusations were made by one of the parties involved.

d. conclusions Although only nineteen of the 660 pages of the report (the conclusions and recommendations), were accepted by the Parliament, it chose to publish the whole report, including the unsubstantiated and unchecked accusations made by only one or a few former members of new religious movements. Certainly, the Catholic parties that have been in power since the independence of Belgium did not want Catholic organizations to be linked to the “sects.” However, the President of the Commission, Serge Moureaux (a socialist and secular humanist), declared in an interview that the vote of the Parliament did not mean that the Parliament had disapproved of the rest of the report. A number of minority religions considered going to court on the grounds of defamation or to have their names removed from the list of sects suspected to be harmful but were told by their attorneys that the Parliamentary Commission was covered by parliamentary immunity. A group of psychotherapists called “Vibration Coeur” (Vibrating Heart), which was listed as a sect, is trying to sue the Belgian state but for almost two years, the state has systematically avoided making an answer before a court. By the beginning of 2000, it had not been possible to hold a single court session. On November 26, 1998, the Belgian state, represented by the House of Representatives and the Ministries of the Interior and of Justice, failed to present its conclusions within the required period and once more the session was postponed. The Anthroposophic Society is also involved in a lawsuit against the Belgian state at the Court of Arbitration. The Society made a request to totally or partially annul the law of June 2, 1998 which established an Information and Advisory Center Regarding Harmful Sectarian Organizations and an Administrative Coordination Cell Regarding the Fight Against Harmful Sectarian Organizations. This Observatory of sects was one of the recommendations made by the Parliamentary Commission on Sects. The case is pending.

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V. SOME C LAIMS FROM MINORITY RELIGIONS Most nonrecognized minority religions with a substantial membership are anxious to receive state recognition so that they may receive the necessary degree of legitimacy and acceptence within the Belgium State, even ignoring the financial advantages of this status. Such a claim is, however, dangerous and should be discouraged, as it would give the state the right to legitimize religions and, therefore, to interfere in the religious sphere.

a. jehovah’s witnesses Jehovah’s Witnesses have more specific claims.28 In public schools under the authority of the French-speaking community, their children have to attend philosophical classes or one of the religious classes (Catholic, Protestant, Orthodox, Jewish, or Muslim) although the Witnesses claim that the contents of the classes are contrary to their beliefs. Meanwhile, in the Flemish community, their children are exempt and may study (without a teacher) the material of their own religion. They also complain about religious intolerance at schools. For example, pedagogical newspapers containing reports on cults in which they were labeled as a “dangerous movement” are used as teaching material, and this generates various forms of intolerance, including mockery by teachers and classmates and beatings by other students.

b. the federal synod of protestant and evangelical churches in belgium The Synod, founded in 1998 as an umbrella organization for three existing Evangelical denominations, also has specific claims.29 It comprises more than 225 churches belonging to the French-speaking Evangelical Federation of Belgium (FEFB), the Evangelical Alliance of Flanders (EAV), and the Federation of Flemish Pentecostal Churches (VVP), with an estimated membership of about 50,000; several other denominations may join them in the future. The Federal Synod would like to share the official recognition of the Protestant religion with the (historical) United Protestant Church of Belgium (EPUB). The Federal Synod’s member churches complain about a number of situations, including problems in getting visas for foreign missionaries, no automatic tax exemptions on church buildings, no wages and no parsonages for their pastors, and no participation in such important issues as the choice of teachers and inspectors for religious classes in public schools, decisions about the curriculum of religious classes, the appointment of Protestant chaplains for hospitals and prisons, and Protestant programs on state radio and TV stations.

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c. islam Despite its recognition in 1974, Islam has not been financed by the state up to now. Until February 1999, the state had no legitimized interlocutor to negotiate and to conclude agreements with, but a process initiated in the last few years could open the way to solutions to a number of specific claims: the payment of the wages of the imams; the financing of the construction and the maintenance of the mosques; the training, the appointment, the inspection, and the payment of religious teachers in public schools; the recognition of a number of religious festivals; and the planning of specific areas in cemeteries.30 In November 1994, the Ministry of Justice recognized the leaders of the newly created Exe´cutif des Musulmans (The Executive Body of the Muslims) as the spokespeople of the Muslim community, but this body was not legitimized as the official ecclesiastical administration to which the state could grant an official budget (as a recognized religion, the Muslim community is entitled to receive an annual budget). In 1995, the state did allot the Executive Body of the Muslims a small budget to cover some general expenses: 2.4 million BEF ( about $63,158). In 1996, it was increased to 5 million BEF (about $131,580), in 1998 to 10.8 million BEF (about $284,210), in 1999 to 17 million BEF (about $447,368) and in 2000 to 20 million BEF (about $526,315). In 1997–1998, representatives of the Executive Body of the Muslims, of the Ministry of Justice and of the Centre pour l’Egalite´ des Chances (Center for Equal Access) discussed creating a Muslim representative body that could be recognized and legitimized as such by the state. An agreement was reached on the following points:31 First, the representative body recognized by the authorities would comprise seventeen members. It would be constituted from a wider assembly comprising fifty-one directly elected and seventeen appointed people. Among the latter, ten would be presented by the current Executive Body, and seven would be appointed by the sixty-one others (fifty-one and ten). The objectives of such a appointments would be to guarantee continuity with the current Executive Body, to assure the representation of internal minorities, and to obtain the support of competent personalities. Second, the right to vote would be granted to any Muslim having reached the age of eighteen years registered with a mosque or with the Executive Body. The Executive Body would centralize the enrollments, draw up the list of voters, and call them to the elections. Every voter would choose one candidate from among the names appearing in four categories: Moroccan, Turkish, Belgian, and other nationalities. The applications would have to be presented either by the mosques or directly to the Executive Body. Every mosque would be allowed to present from one to three candidates. Independent candidates would be

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recognized by the Executive Body. Rejection of applications would be based only on objective criteria. Finally, when the composition of the assembly was settled, its members would be allowed to apply for the seventeen seats of the Executive Body. The applications would have to be approved by the Minister of Justice. From the list approved by the Minister of Justice, every community would choose its delegates to the Executive Body. The twenty-eight elected Moroccans would choose seven delegates among their ranks, the seventeen Turks four, the twelve “other nationalities” three, and the eleven Belgians three. A group appointed by the Ministry of Justice, the Executive Body, and the Center for Equal Access would monitor the elections. On December 13, 1998, the Muslim community held elections in 100 mosques chosen by drawing lots and twenty public places. Out of the 300,000– 350,000 Muslims of Belgium (including minors of age), 72,000 had registered as potential voters but only 40,000–45,000 of them went to the polls. On the first fifty-one seats that were granted to the winners of the elections, there were four women. On twenty-five candidates known to be affiliated to extremist Islamic movements, no less than fifteen were elected.32 Seventeen more members of the assembly were co-opted. In February 1999, Minister of Justice Tony Van Parys announced in a press conference that he had admitted the list of sixteen administrators of the Muslim representative body that had been presented to his agreement by the Executive Body of the Muslims. In June 1999, parliamentary elections took place and a new government was formed several weeks later. A new Minister of Justice from a different party than the former one was appointed. By the beginning of 2000, no measures had been taken to improve the situation of the Muslim community.

d. financing of minority religions A general claim which originates with the nonrecognized minority religions, but which also concerns Islam (a recognized but nonfinanced minority religion) is that no taxpayer should be obliged to contribute to the financing of a religion to which he or she does not profess. However, this is what at least 380,000 Belgian citizens are required to do (about 130,000 adherents of unrecognized minority religions, such as Jehovah’s Witnesses, Mormons, the Federal Synod of Protestant and Evangelical Churches in Belgium, and about 250,000 Muslims). Article 20 of the Constitution states that “nobody can be compelled to take part in any way whatsoever in the activities and ceremonies of a religion.” This right is guaranteed in both theory and in practice. The Belgian state, however, obliges its citizens to finance activities and ceremonies of religions they do not

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adhere to, which is logically contradictory. It is for this reason that some religious leaders, and particularly secular humanists, claim the right for all citizens to nominate the religion or philosophical movement that they elect to receive the percentage of their income taxes fixed by the state for religious purposes.

V I. CONC LU SIONS: BELGIUM AS A TEST CASE FOR EU ROPE Belgium is typical of most European countries in which a two-tiered system of recognition of religions is in force. It might therefore be an ideal test case for seeking and experimenting with new forms of relationships between the state, its various religions, and their members. All over Europe, the two-tiered system results in complicated situations with various forms of religious discrimination and inequalities, not only between both categories but also within the category of recognized religions. In such a rigid framework inherited from the past, the state is required to make decisions on behalf of religions and their members although this is not properly the state’s role and, sometimes, not its intention. Nobody can ignore the weight of history and culture in the various European nation-states, when seeking to promote the implementation of international instruments regarding religious freedom. The UN, the multivarious NGO bodies, and the European institutions that monitor and protect religious liberty must always bear this in mind. Cultural history must be acknowledged if these institutions are to succeed in overcoming discrimination against minorities. In this regard, copying the system of religious liberty in the U.S., with its strategies inherited both from its own history and its own case-law, would be a major legal and cultural error. The image of the American free market of religions is portrayed rather negatively by the European media. Europe will have to work out its own forms of religious pluralism, from which inequalities and discrimination must be effectively eliminated.

a. recognition and state subsidies In the current two-tiered system, state recognition implies access to state financial support. This explains why most religions, whatever their historicity or their size, apply for state recognition. State subsidies are provided by all the taxpayers, however, including those who profess a nonrecognized religion or who profess no religion at all. Most scholars and human rights NGOs argue that it is not equitable for members of minority religions, atheists, or agnostics to pay for religions that do not tolerate them or are openly opposed to them. Such a system is no longer adequate for an ever expanding Europe without internal frontiers, nor for modern societies that are becoming more and more heterogeneous.

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This antiquated recognition system needs to be replaced by a new system with new rules, while at the same time taking into account the historical and cultural realities of the place of religions in European states. European nations have a long history as welfare states in most sectors of society, including the religious sphere. It is, therefore, more pragmatic to plead for reform of the system in a way that can best coordinate the various segments of civil society than for a radical change, such as putting a complete end to the state financing of religions. Such a change would trigger opposition from the religious establishment and would be unlikely to attract any political support.

b. income taxes and financing of religions Germany, Italy, and Spain have introduced a system that partially allows taxpayers to allocate a part of their income taxes to the religion of their choice.33 There are, however, big disparities between the systems of these countries; they will not be analyzed here but the philosophy behind those systems is that taxpayers should be allowed to finance the religion or the philosophical movement of their choice and should not have to contribute to the financing of religions to which they do not profess. These countries premised their systems upon the proposition that an individual has the right to equal access, whatever his or her religious or philosophical beliefs. Bearing in mind this prerequisite, Belgium or any other European country could work out its own system of financing its religions according to its own unique sociological composition and political landscape. No doubt, legal systems and constitutional provisions would have to be adapted or thoroughly revised, but this is a challenge for the beginning of this millennium. An open-minded and liberal solution to new forms of religious pluralism in Europe could permit a number of major steps to be taken: First, abolish the two-tiered system and replace it by a system in which all religions, whatever their historicity or their size, should apply for the juridical status of their choice. There is no danger in this approach because the rule of law requires that only law-abiding associations that do not threaten democracy, peace, or public order can gain such a status. Spain34 and Norway35 have already taken that path, registering hundreds of religious entities. Second, allow tax payers to allocate a part of their income taxes to one of the religions or philosophical movements enjoying such a juridical status36 (this proposal follows the Italian model, which is not detrimental to established churches, but goes beyond it).37 Third, grant tax exemption to citizens making donations to religions that enjoy a juridical status. Such a fundamental reform would put an end to the two-tiered system with two or more categories of religions and citizens, and it would render the cult issue in Europe legally marginal.

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endnotes 1. There exist mechanisms protecting other types of minorities, notably purely ideological minorities inasmuch as they are related to an opinion, whether it is political or religious. However, this protection remains passive: It does not include any positive actions toward such minorities and it does not exempt them from abiding by common law. Louis-Le´on Christians, La liberte´ d’opinion en droit europe´en: observations belges (I) – Le champ d’application des garanties, 57 Consc. Lib.Rev. 24, 1999. 2. F. Delpe´re´e, Droit Constitutionnel I nr 119 (1987); J. Dembour and Lewalle, Institutions de Droit Public 48 (1985); A. Mast and J. Dujardin, Overzicht van het Belgisch Grondwettelijk Recht 551 (Gent: Story-Scientiae, 1985). 3. Delpe´re´e, above n. 2, I, nr 120; Dembour and Lewalle, above n. 2, 48. 4. O. Orban, Le Droit Constitutionnel de la Belgique III, 599 (ParisLie`ge: Giard & Brie`re-Dessain 1911). 5. The precedence of civil marriage to religious marriage was introduced by a law dating back to the French occupation (April 8, 1802) which provided for very severe sentences. After the abolition of this principle in 1814, abuses were committed, mainly in the countryside where religious marriages failed to be registered as civil marriages. The Napoleonic law was restored in 1817 under the Dutch occupation. 6. G. Van Haegendoren and A. Alen, The Constitutional Relationship Between Church and State in A. Alen (ed.), Treatise on Belgian Constitutional Law 267 (Deventer: Kluwer Law and Taxation Publishers, 1992). 7. Once called the Union of Evangelical Protestant Churches and now the United Protestant Church of Belgium. Since 1979, it has successively integrated the Liberal Protestant Church, the Methodist Church, the Reformed Church, and the Gereformeerde Kerken. 8. For some time, the civil authorities did not know who was entitled to represent Protestantism (as it has now been the case in the last decades with the Muslim community) but fortunately for the state, in 1839, the subsidized Protestant churches managed to find a common representative. The question was raised, however, whether a Protestant congregation which was not under the authority of the Synod of the Union of Evangelical Protestant Churches could be recognized by a Royal Decree. On April 20, 1888, the Liberal Protestant Church was recognized by a Royal Decree. The Lutheran Churches, which left the Synod, were recognized separately and subsidized. Their recognition was based on the law of 18 germinal, year X, which also concerned the Churches of Augsburg Confession. In the last decades, all the remaining Lutheran congregations but one have fully joined the EPUB. 9. The EPUB numbers about 40,000 members and the unrecognized Churches about 50,000: Michel Dandoy, Le culte protestant, in L’Islam en Belgique 103–5 (Bruxelles: Editions Luc Pire, 1998). 10. On December 13, 1998, Muslims held nationwide elections for an assembly consisting of 51 persons representing numerous communities of the Muslim faith. The Muslim representative body to be recognized by the Government was to be composed of 17 administrators chosen within the elected assembly by itself and by the Muslim executive council. The Government approved the 16 candidates that were eventually

432 w il ly fa utre´ proposed: Teachers, doctors, a sociologist, a financial controller, a scientist and a translator. Most of them are Moroccan and Turkish; three are converted Belgians. The problem was how to select candidates that would be accepted not only by the Belgian criminal investigation department but also by the Muslim community who elected them in the first place. Therefore, the screening of the candidates was monitored by the election organizers, including the state-created but autonomous Centre for Equal Access (Centre pour l’egalite´ des chances), and not directly or openly by the state. However, a large part of the Belgian Muslim community overtly criticized the veiled intrusion of the state in the final appointment of the members of the Muslim representative body. This body will be allowed to negotiate with the state in specific matters concerning their religion. 11. P. Lemmens, New Religious Movements and the Law in Belgium, in Universita` degli Studi di Milano, Facolta` di Giurisprudenza, Pubblicazioni di Diritto Ecclesiastico (eds.), New Religious Movements and the Law in the European Union 90 (1999). 12. Christian Terlinden, Guillaume 1 e r , Roi des Pays-Bas, et L’Eglise Catholiques en Belgique (1814–1830) I 317–18 (1906). 13. Centre d’Action Laı¨que, Les Cultes en Belgiques et L’Argent des Pouvoirs Publics (1993). 14. Justification du budget ge´ne´ral des de´penses pour l’anne´e budge´taire 2000, in Documents Parlementaires de la Chambre des Representants (2000). 15. Rik Torfs, Financing of Churches and Religious Societies in Belgium, 10 Face to Face 6–8, published by the Bulgarian Helsinki Committee. 16. Ibid. 17. Ibid. 18. Ibid. 19. Torfs, above note 15, 10. 20. Les dernie`res statistiques de l’Eglise catholique, CIP (Brussels) (June 25, 1997) 1. 21. The Satmar community is a part of Hassidic Judaism. This group is conscious of its difference with regard to civil society and even to other streams of Judaism. For example, they are opposed to the current State of Israel and to Zionism. The Satmar became a symbol of the threats to which religious minorities are exposed, especially in the sensitive realm of the freedom of education when in 1994, the U.S. Supreme Court (where a secular majority had prevailed for years) declared unconstitutional a decree of the State of New York, the Joel Kiryas judgment. This decree had created a special schooling district to allow Satmar children (particularly handicapped children) to be educated in the spiritual environment of their community without having to attend public schools which are unfamiliar to their culture. The judgment was pronounced in spite of the violent opposition of three Supreme Court judges—Chief Justice William Rehnquist, Clarence Thomas, and Antonin Scalia—and was heavily criticized, even in Catholic circles. 22. Dick Anthony, Brainwashing and Totalitarian Influence: An Exploration of Admissibility Criteria for testimony in Brainwashing Trials (Berkeley, 1996); Eileen Barker, The Making of a Moonie (Oxford: Basil Blackwell, 1984); Newton Malony, Brainwashing Coercive Persuasion Undue In-

Belgium 433 fluence Mind Control: A Psychologist’s Point of View (Pasadena, California: Integration Press, 1998). James T. Richardson, Cult/Brainwashing Cases and the Freedom Of Religion, 33 J.C.S Rev. 55–74 (1991); James T. Richardson and Massimo Introvigne, ‘Brainwashing’ Theories in European Parliamentary and Administrative Reports on ‘Cults and Sects’. Presented at 13th CESNUR Conference, Bryn Athyn, PA (June 1999) and at the SISR biannual Conference, Louvain, Belgium (July 1999). 23. Enqueˆte parlementaire visant a` e´laborer une politique en vue de lutter contre les pratiques ille´gales des sectes et le danger qu’elles repre´sentent pour la socie´te´ et pour les personnes, particulie`rement les mineurs d’aˆge. Rapport fait au nom de la Commission d’Enqueˆte par MM Duquesne et Willems, Partie I 352, Chambre des Representants de Belgique Ordinary Session (April 28, 1997). 24. Ibid. 153. 25. Ibid. 359–60. 26. Ibid. 358. 27. Ibid. 341–3. 28. Information material collected by the author on May 5, 1998 during an interview with Mr. Marcel Gillet, president of the Belgian branch of the Watch Tower. 29. Information material collected by the author on July 7, 1997 during an interview with pastor John van der Dussen, president of the Federal Synod of Protestant and Evangelical Churches in Belgium. 30. Rapport annuel 1997 du centre pour l’egalite des chances et la lutte contre le racisme 147–52 (1998). 31. Rapport annuel 1997 du centre pour l’egalite des chances et la lutte contre le racisme 146–7 (1998). 32. M. Vdm, Inquie´tudes A Propos Des Elections Musulmanes, Le Soir (Brussels) December 20, 1998, 8. 33. Ju¨rgen Warnke, The Financing of the Churches in the Federal Republic of Germany, in Modely Ekonomickeho Zabezpecenia Cirkvi a Nabozenskych Spolocnosti 108–17 (1997); Silvio Ferrari, The Financing of Religious Societies in Italy in Modely Ekonomickeho Zabezpecenia Cirkvi a Nabozenskych Spolocnosti 126–31 (1997); Gloria M. Moran, Legal Status of Minority Churches and Religious Communities in Spain in Universita` degli Studi di Milano, Facolta` di Giurisprudenza, Pubblicazioni di Diritto Ecclesiastico (eds.), The Legal Status of Religious Minorities in the Countries of the European Union 251– 76 (1994). 34. By January 1998, 899 non-Catholic religious entities had been registered and enjoyed a juridical status. From Direccion General de Asuntos Religiosos, Guia de Entidades Religiosas de Espana 21 (1998). 35. Religious communities can choose whether they wish to be registered or not. Any religious association may practice its religion or belief without registering. The government does not pass any judgment on the belief of any person or group of people, but it does seek to make sure that a registered religious community really has some sort of teaching that is aimed at influencing its members’ daily lives. When a religious community applies to register as such, the law stipulates that any religion or belief can be registered if it does not offend law and decency. The rules are applied liberally.

434 w il ly fa utre´ The state does not seek to define whether a religious community is a business or not. A registered religious association is obliged to register its members and to report to the state concerning its financial affairs. Almost all religious communities in Norway have chosen to register and thereby receive financial support. The Church of Jesus Christ of Latter-day Saints (Mormons) is the only religious association that has chosen not to register for financial support. Mormons are however allowed to practice and to try to increase their membership. (Source: website of Human Rights without Frontiers, http://hrwf.net/html/norway99e.htm. Relations between State and Religions in Norway: An Interesting Model for European Countries). 36. In Norway, the state’s financial support to all registered religious and philosophical associations with a juridical status, including the Lutheran Church of Norway, is calculated according to the number of registered members. They are also taxexempt in the same way as NGOs. In 1997, the combined central and local government support granted to registered religious associations in Oslo was NOK 324 per member (approx $ 41). Both central and local governmental financial support is available to all registered religious associations. The governmental financial support granted to small religious communities is not enough to cover their basic expenses but on the other hand can be a considerable source of income for larger communities. Much more so than the state church therefore, minority religions are more dependent on their members’ generosity to finance both their infrastructure and their projects. (Source: Website of Human Rights Without Frontiers http://hrwf.net/html/norway99e.htm. Relations between State and Religions in Norway: An Interesting Model for European Countries) 37. In Italy, each tax payer must devote 0.8% of their taxes either to a religious body or to the national public charity system by ticking the preferred institution’s box on the tax form. Unlike Germany, if the tax payer fails to tick a box, he or she does not keep the money, but it is divided between the different religious bodies according to their national percentages scores. For example, if a tax payer does not tick any box and the Catholic Church’s box is ticked by 90% of the tax payers, and the Baptist Church by 2%, 90% of 0.8% of taxes paid by that person will go to the Catholic Church, 2% of 0.8 to the Baptist Church, etc. The percentage to the state charity which has been plagued by scandals, remains minimal. Participating churches and religions include, so far, the Catholic Church (from 1984 onwards), Walsensians and Methodists (1984), Seventh-Day Adventists (1986), Assemblies of God (1986), the Jewish Communities (1987), Baptists (1993), Lutherans (1993) and Buddhists (1999). Negotiations with Jehovah’s Witnesses and Islam are pending. Source: CESNUR’s Website http://www.cesnur.org/testi/UBI.htm. The proposal made in this essay to extend this possibility to any religion or philosophical movement enjoying a juridical status goes beyond the Italian model as it is not limited to a small number of religious communities.

part 4 Non-Legal Approaches

Chapter 14 t h e d e v e l op m e nt of p ol i s h c i v i l s o c i e t y a n d t h e e x p e r i e nce of t h e g r e e k c a t h o l i c m i nor i t y i n e a st er n e u r o p e Christopher Hann

The Polish situation is speciÞc. Poland is a one-nation country within the borders designated by Stalin; a country whose euphoria experienced after the defeat of communism is clouded by the deep crisis of its economic structure. In Poland one can see most clearly what the ÒBlack HundredsÓ is aboutÑit is not, after all, about struggling with ethnic minorities, which are not threatening anybody with anything. It is about the shape of Poland itself, the nation and its culture, the state and its guiding principles. It is a dispute neither between the right and the left, nor between Christian democracy and social democracy. None of these designations makes much sense today. It is a dispute between two ideas of nation and state: between the idea of a civil society and an open nation on the one hand and, on the other, the idea of a ÒCatholic State of the Polish NationÓ and intolerance toward those who are different. The former uses the language of democratic debate; the latter, the language of insinuation and hatred. For the former, the nation is a community of culture; for the latter, a community of blood.1 —Adam Michnik, 1995

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I. INTRODUCTION Catholics a minority in Poland? Surely there is some mistake here. Everybody knows that the Catholic Church has long played a leading role in Polish national life. Since the redrawing of frontiers and the migrations, mostly forced, of many millions of people in the 1940s, well over ninety percent of the population has belonged to the Roman Catholic Church. This gave the Church its unique strength in the struggle against communism, when it seemed to represent the whole of Polish society against an illegitimate state. I say “seemed” because my fieldwork during and immediately prior to the Solidarity period suggested that things were not in fact quite so simple. Certainly the ability of the dominant Church to project itself as a force for both national unity and democratization has weakened in the post-communist years. Rather than leading the struggle for a new, open “civil society,” the Church is frequently in tension with such an agenda. This change and the new tensions between society and its dominant Church expose more fundamental ambiguities in the concept of civil society. After considering how to define and use this term, I shall turn to ethnographic and historical materials and show why it has proved difficult to establish a more civil society in the area of southeast Poland where my research has been based. The Greek Catholics have been the main victims of a continuing lack of civility here. However this is not just a local or a regional problem, nor is it just a religious problem: it is tied up with a more general anti-Ukrainian prejudice that is widespread throughout Polish society. My argument is that, while it is relatively easy to formulate general theories of civil society which guarantee individual rights, including basic religious rights, this may not help very much in situations where one religion is dominant, where religious identities are strongly identified with secular ethno-national identities, and where other sources of collective security have been seriously, perhaps irrevocably, weakened. In these circumstances more specific safeguards are necessary if a multifaith, multicultural civil society is to flourish. At the end of the essay I briefly consider some of the steps that might be taken toward such a goal.

II. C IVIL SOC IETY AND RELIGION First it is necessary to define civil society. I tend to agree with Ernest Gellner’s view that this term is an incoherent “muddle.”2 Yet despite this conclusion, Gellner joined many other social scientists in finding the term useful in the positive and normative analysis of contemporary societies, preferable to still vaguer terms such as “democratization.” Ju¨rgen Kocka has recently characterized civil society as a coherent utopian project of Enlightenment Europe. Its main features are described as follows:

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[A] modern, secularized society of free and self-reliant individuals who would manage their relations with one another in a peaceful and reasonable way, through individual competition as well as through voluntary cooperation and association, without too much social inequality and without the tutelage of an authoritarian state. For that purpose certain institutional arrangements were needed: the guarantee of individual rights, the protection of the family, markets, an arena for public debate, the nation state, due process of law, constitutional government and parliamentary representation. These demands were intrinsically linked to a new conception of social relations: work, achievement and success—not birth and privilege—should determine the distribution of wealth, status and power. Education should be of the utmost importance. The public use of reason should replace legitimation by tradition. Private and public life should be clearly distinguished.3 The renewed vitality of the concept of civil society owes much to its deployment in the later years of communism in Eastern Europe, where it was contrasted sharply with the presence of an authoritarian state. While Kocka implies the need for a certain liberal variant of the state in order to guarantee the “institutional arrangements” of civil society, some popular usages have pitted civil society against the state in any form, an understandable reaction when communism still prevailed.4 Some formulations restrict civil society to the realm of associations, to nongovernmental organizations, or to the voluntary or “third” sector. I shall emphasize the role of associations when I come to ethnographic materials below, but in the absence of any general agreement on how to use the concept, I favor retaining the breadth of Kocka’s ideal type. Indeed I am inclined to broaden it further by suggesting that a civil society must be one in which the free individual citizens can also express their collective identities in conditions of tolerance and civility. Where does religion fit in to such an approach? Ju¨rgen Kocka starts out by specifying a “secularized society of free and self-reliant individuals.” However, other historical accounts have pointed out that it is precisely in certain new religious currents that the foundations of the modern individual may be located.5 Many accounts resolve the issue by utilizing the distinction introduced by Kocka at the end of the above quotation. Religion is considered as a facet of the individual’s private identity. As such it enjoys state protection, in much the same way as the family is protected. The rights of an individual who belongs to a small religious minority should not in principle be any different from the rights of those who belong to a dominant religious tradition. European countries vary enormously in the ways in which they implement these ideals. For example, France endeavors to maintain a sharp line between the public and private, so that Muslim women who wish to wear a headscarf

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in the public domain have encountered the same criticism here that they have encountered in Turkey (where Islam is the dominant tradition, but the state is resolutely secular and seeks to maintain a sharp public/private distinction). In comparison to France, Muslims in Britain and Germany may feel they have fewer rights in the eyes of the state than the mainstream Catholic and Protestant churches. Germany has been draconian in its policies toward the Church of Scientology. Britain meanwhile retains its established Anglican Church but, in the eyes of many observers, pursues more liberal policies toward religious minorities than do Germany or France. Religion, in the form of the Roman Catholic Church, continues to play a more prominent role in Poland than in any of these Western countries. The Polish People’s Republic did its best to undermine the power of the Church, but it failed. It did not try to eliminate religion altogether. Instead, rather like the Kemalist regime in Turkey, it tried to confine it to the private sphere. One of the side effects of attempts to weaken the Roman Catholic Church was a willingness on the part of communists to cooperate with smaller churches that posed little threat. Hence the Orthodox Church was able to expand in the communist period, and hence the apprehension I noticed among some members of this minority during the Solidarity period and later.6 They were worried that a Poland governed by a strong movement claiming to represent all the Polish people and closely attached to the Roman Catholic Church would provide a less hospitable environment for ethnic and religious minorities. In general these fears have not been born out in the aftermath of communism. Successive Polish governments have paid more attention to the protection of minorities, which clearly is specified in Article 35 of the new Constitution as adopted by the National Assembly on April 2, 1997. However, from the point of view of broad definitions of civil society it is not self-evident that the postcommunist state is a major improvement on its predecessor. Certainly the state has become more constitutional and some representative institutions work more effectively. However, under the influence of the dominant church it has adopted new policies in areas previously regarded as matters of private sphere, notably in the curtailing of abortion. In the villages and small towns of Poland, which is where most people live, it is difficult today, just as it was in the communist period, to live as an atheist.7 To point this out is not to deny that in certain respects Polish society has become highly secularized, and this has increased in the post-communist years with greater exposure to Western media and consumer goods. Yet Poland, having thrown off the unwanted collectivity of communism, continues to exhibit two extremely powerful and congruent forms of collective identification, with the Roman Catholic Church and with the Polish nation, which rather fly in the face of the “modern, secularized society of free and self-reliant individuals.” In the remainder of this chapter I shall show how this situation poses special problems for people who, though

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very committed Catholics, constitute a religious minority that is also highly correlated with an ethno-national group.

I II. THE DEC LINE OF POLYETHNICITY The region which is now the southeast corner of Poland has a tangled history which is not untypical of Eastern Europe as a whole.8 It is a polyethnic history in which linguistic boundaries showed a high degree of congruence with religious boundaries. Three main traditions dominated the medieval and early modern periods. The Roman Catholics mostly spoke Western Slavic dialects, the Orthodox Eastern Slavic dialects, while Jews had their own, more clearly marked linguistic and religious boundaries. Politically this region was under Eastern Slavic control until its incorporation into the Polish state by Casimir the Great in 1341. In the following centuries Poland (later the Polish-Lithuanian Commonwealth) remained a state of many languages and religions. This is not to say that all had equal status. On the contrary, agrarian empires were typically hierarchical. In this case Western Slavic cultural elements were more highly valued, such that an upwardly mobile Eastern Slavic would be likely to assume the languages of the West (Latin and French, as well as Polish) and the Roman Catholic religion. Poles were often more numerous in the towns, while Ruthenians had the stronger rural base.9 In some areas to be a Pole meant to be a nobleman and a landlord, while the peasants were entirely Ruthenian. But there were also many Roman Catholic peasants who spoke dialects of Polish. Following migration processes some people changed their language and religion, giving rise to new combinations of Western Slavic speakers following the Eastern strand of Christianity and vice versa. Meanwhile Jews maintained their distinctive economic niches, both in towns and in villages, and were subject to different laws and administration. This polyethnic agrarian state was far removed from the enlightenment ideal of civil society. It did nonetheless seem to provide a political framework for peaceful coexistence and extensive cultural as well as economic exchange, particularly between the two major Christian traditions. This is perhaps exemplified by the case of the Greek Catholic Church, which came into existence through the Union of Brest in 1596 and allowed Orthodox Christians to become Catholic without having to give up their Eastern rite, or what I have elsewhere termed their “practical religion.”10 Polyethnicity remained the norm until the middle of the twentieth century but the process of dissolution began under the region’s last imperial rulers, the Austrian Habsburgs, to whom Galicia was allocated following the first partition of Poland in 1772. The nineteenth century was the great age of national movements in Europe, each struggling to control a quite new form of state. Following Herder, intellectuals formulated a concept of collective secular belonging, based on a common language, which was increasingly standardized and puri-

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fied of foreign elements. It took some time to persuade peasant Western Slavic dialect speakers that they shared a common identity with their Polish landlords. In 1846 these peasants still showed more sympathy with the Austrian Emperor than with elites fighting for Polish national liberation, who were treated as the class enemy. Gradually, however, the abolition of feudal ties, constitutional and political reforms, increasing literacy, communications revolutions, and greater social and geographical mobility (including international migration) facilitated the dissemination of national consciousness. The same process unfolded more slowly among Eastern Slavs, in part because of weaker traditions of statehood and economic backwardness. In eastern Galicia there were tensions between those who struggled for the relatively novel ideal of a Ukrainian national identity and those who felt more attached to the term Rusyn and its cognates, and sympathized with the Russian Czar on panSlavic grounds. The new secular identities were very closely bound up with religions. Much of the most powerful imagery of the new Polish nation was Christian, the Roman Catholic Church presenting itself as the embodiment of the national identity in the absence of a Polish state. The Greek Catholic clergy played a vital role in the early expansion of the Ukrainian national movement, and this church has remained strongly identified with the Ukrainan cause throughout the present century. Wilsonian principles of national self-determination at the end of the First World War led to the creation of a new Polish state. However, approximately one-third of its citizens were not Polish in the ethnic sense and on this basis we can speak of the continuation of polyethnicity in the interwar decades. We may speak too of further gains for civil society, since the state proclaimed itself to be a republic and elections were held to new representative institutions. However this civil society did not function very well, particularly from the point of view of minorities. Polish farmers were resettled in eastern zones where Ukrainians were denied equal rights to acquire land. The promise to establish a Ukrainian-language university was broken. Perceptions of the role of the Greek Catholic Church in strengthening Ukrainian nationalism led to more defections to Orthodoxy and hence to the creation of a separate Apostolic Administration for those parts of the region where the Ukrainian cause was not yet well entrenched, by agreement between Warsaw and the Vatican.11 Economic depression and rising nationalist sentiment both contributed to increasing antiSemitism in the 1930s. The decisive rupture with polyethnicity came in the war years and the immediate aftermath. The region was split when Stalin and Hitler divided Poland between them. Alongside the conflict between the Nazis and the Red Army there was another violent struggle between Polish and Ukrainian partisans. After Stalin had settled new frontiers for Poland, large-scale population transfers were organized at the end of the war, Germans being expelled from western Poland,

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Poles moving westward to the lands obtained from Germany, and Ukrainians moving eastward. These movements were incomplete: some Poles remained in Ukraine and some Greek Catholic Ukrainians remained in southeast Poland. However, in the face of continuing sporadic guerrilla activities in the Carpathians, the authorities of the new People’s Republic of Poland decided to evacuate the entire remaining Ukrainian civilian population, about 150,000 people, to the former German lands, located at the other ends of the country. Operation Vistula in April 1947 was a crude form of what has come to be called “ethnic cleansing.” In the following decades high rates of geographical and social mobility and communist educational programs contributed to a homogenization of culture and high rates of assimilation among most minority groups. In contrast to all previous Polish states, communist Poland approximated to monoethnicity.12 The authorities made this a source of pride (paradoxically, playing the national card was one of the few ways in which these communists could attempt to demonstrate their own legitimacy).

I V. THE STATU S OF THE GREEK CATHOLICS DU RING AND AFTER COMMUNISM Given the links between ethnicity and religion, this transition to monoethnicity entailed for the Roman Catholic Church a dominant position in the society as never before. Even before Operation Vistula, following the forcible elimination of the Greek Catholic Church in the Ukraine in 1946, this Church had its property confiscated in Poland. Its bishops were deported to the USSR, where they died in camps. Some of the spoils were divided between Roman Catholics and Orthodox, though many fine buildings were destroyed or just left to disintegrate. As an institution, the Greek Catholic Church seemed to be defunct. However it refused to die. In Poland as in the Soviet Ukraine a few clergy managed to maintain the Greek Catholic tradition by holding services “underground,” in the diaspora created by Operation Vistula. Ecclesiastical responsibility for the Greek Catholic Church was vested by the Pope in the Roman Catholic Primate. With Roman Catholic support, after the political thaw of 1956 Greek Catholics were able to expand their pastoral activity over much of the country, holding their services in Roman Catholic churches and administering sacraments and life cycle rituals in the prescribed ways. From the point of view of civil society it is worth looking a little more carefully at the exact status of the Greek Catholic Church in these years. Few would see Operation Vistula and the various decrees that authorized massive property confiscation as legitimate actions of a law-governed state. Yet the communist authorities after 1956 treated these decrees as having full legal force and steadfastly refused to recognize the Greek Catholic Church as an “ecclesiastical legal person” in the way that other religious communities were officially rec-

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ognized by the state.13 Nor, however, did the authorities ban the Church and persecute its members in the way Greek Catholics were persecuted in Ukraine. Polish Greek Catholics had a lot of freedom, but only through the protection received from the dominant Church. This was a relationship that could work well, but it also gave rise to tensions and suspicions. Sometimes the Greek Catholics felt that their efforts to reestablish their own tradition met with obstruction from Roman Catholic priests and bishops who preferred to promote the religious variant of cultural assimilation, i.e. conversion of all Catholics to the Western, “Latin” rite.14 In 1971 and again in 1980 Greek Catholics signed mass petitions in which they pleaded for the independent recognition of their Church. The matter was referred to a commission, set up in 1980 to regulate relations between the state and the Catholic Church, which finally reported to parliament in May 1989, shortly before Poland became the first communist country to allow the holding of partially competitive free elections. The statute that followed was a disappointment to Greek Catholics as it still made no explicit mention of their church. While specific units of the Church could now obtain recognition as “legal persons,” the Greek Catholic Church was given no distinct identity apart from the encompassing identity of “the Catholic Church.” Another mass appeal (with 5,500 signatures) went to the (post-communist) parliament in December 1990, asserting that the omission of any reference to Greek Catholics seemed to be a sanctioning of their existence hitherto, outside of the law. By this time the matter of separate recognition was more urgent because, as communist power throughout the region collapsed, the prospects for regaining confiscated property suddenly improved. Much of this property had passed to the Roman Catholic Church, which was no longer in a position to say to Greek Catholics that it would really like to be able to do more to help them but that it could not countermand the dictates of the communist state. The post-communist state plainly preferred to leave these issues to the Catholic Church to negotiate internally, but this was where Greek Catholics felt vulnerable. A modification to the new Statute, approved in October 1991, declared that the “Catholic Church in Poland existed in all of its rites,” but this too fell short of the explicit institutional recognition sought by Greek Catholics. They had to endure further disappointment in 1992, this time at the hands of the Vatican, when a papal Bull attached the revived Greek Catholic diocese of Przemys´l to the Metropolitan of Warsaw, i.e. to the Roman Catholic Primate. Once again the Greek Catholics protested at treatment which seemed quite explicitly to them to subordinate the Eastern Catholic Church to the country’s dominant Roman Catholic tradition. These protests may have had some impact, for in 1993 the Pope elevated the Bishop of Przemys´l to the status of Metropolitan, giving him formally the same rights and status as the head of the country’s Roman Catholics. But since the latter community is at least three hundred times larger, and since the two Greek

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Catholic Bishops are of course heavily outnumbered by their Roman Catholic colleagues on the Polish Episcopate, the main executive body of the Catholic Church in Poland, Greek Catholic perceptions of inferiority and powerlessness have not gone away.15

V. POST-C OMMU NIST CIVIL SOCIETY IN PRZEMYS´ L The end of communism brought more dramatic changes in many fields, including the opportunities open to ethnic minorities. It soon became clear that many groups were much more numerous than had been admitted under communism. Like others, Ukrainians transformed the communist-controlled SocioCultural Association they had had since 1956, and a host of new secular organizations came into existence at national and local levels.16 Many of these had branches in the southeast, for in addition to those who had managed by one means or another to avoid deportation in 1947, from 1956 onward there was a steady trickle of return migration by Ukrainians. But of course the culturally dominant community also enjoyed new freedoms. It was possible to organize political parties to articulate nationalist viewpoints that had been banned from the public sphere under communism. In addition, it became possible at the local level to organize new associations for a great variety of purposes, some of them previously taboo. Such tendencies look like an unambiguous step forward for the cause of civil society, at least according to some definitions. It is only when one starts to look more closely at the activities of some of these new associations that doubts begin to creep in. Let me turn now to the anthropologist’s preferred, more close-up view.17 Przemys´l is located a mere ten kilometers from the Ukrainian border. Apart from 1000–2000 Ukrainians, this city of 70,000 has no other significant minority.18 The importance of religion for ethno-national identity is stressed by members of this group. The Greek Catholic parish is at least as important a focus for their community as the secular Dom Narodowy (“National House”). Through participating in weekly services (held entirely in Ukrainian), observing religious holidays, and ensuring the transmission of religion within the home, they maintain their Ukrainian culture. Most of the Greek Catholics interviewed emphasized that they had deliberately chosen to marry within their group; when pressed to specify the drawbacks of marrying outside, most emphasized clashing religious holidays. Following this logic, they agreed that there was no real problem in marrying a Ukrainian who was Orthodox and shared the same ritual calendar, though some were critical of the Orthodox Church’s close links with Russian national tradition. What repelled most members of the minority from the Roman Catholic Church was its very strong identification with Polishness. The minority has made significant gains in both religious and secular spheres

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since the collapse of communism. For example, Epiphany rituals on January 19 can now be celebrated in public once again. Perhaps the most significant secular gain has been the establishment of a new Ukrainian-language primary school in the city in 1991, extended to serve high school pupils in 1995. The initiative for this was taken locally but its success owed much to support from the Ministry of Education in Warsaw, which overruled the many objections raised by the local authorities. Religious instruction is given inside the school by Greek Catholic clergy. Indeed many of the activities of ostensibly secular associations are also influenced by the Church, so the distinction is not always a very useful one. This applies also to property compensation claims, where the most intractable issues have concerned ecclesiastical property (though ownership of the building which houses the secular Dom Narodowy is also contested). The minority has enjoyed only limited success in pursuing these claims. A seminary has been returned to the Greek Catholic Church, as has a church to the Basilian order (it served as the state archive for most of the communist period). The Greek Catholic Bishop’s Palace has served for many years as the County Museum and all requests for its return have been refused by the city and county level authorities.19 However, for the Greek Catholic minority one building had greater material and spiritual significance than any other. As soon as their new bishop was appointed in January 1991 they made formal representations for the return of the distinctive church which had served as their cathedral until its confiscation in 1946 and transfer to the Roman Catholic Carmelite order. This opened a chapter of major conflict in the city which has still not completely subsided.20 The ownership of this church was contested by the Roman Catholic Carmelites, its owners since 1946. It had been constructed for them in 1630 by a Polish nobleman, and then taken from them in an act of confiscation by the Habsburg Emperor Joseph II, as part of his “enlightened” campaign against Roman Catholic religious orders. Joseph allocated it to the Greek Catholics in 1781. If one hallmark of a civil society is respect for property rights, clearly the Carmelites had a case. But the case was weakened by the fact that it had not been made decades earlier, e.g., when the Habsburg Empire collapsed in 1918. At that time and later, all had accepted that the Greek Catholics were the rightful owners of this church. It could therefore be argued that, in seeking to hold onto it in the 1990s, they were in fact seeking to profit immorally from an act of communist confiscation in 1946. Given the delicacy of the issues the leaders of all the various parties—the Carmelites, the Roman Catholic hierarchy, and the Greek Catholic hierarchy—carefully negotiated a compromise. They agreed that the building should revert to the Greek Catholics for five years only, during which time they would begin, with Roman Catholic help, the construction of a new cathedral of their own. The Pope approved this solution and expressed his wish to join the Greek

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Catholics in worship in their former cathedral during his pilgrimage to Poland in June 1991. However, when news of these compromise proposals became public, a group of Poles formed a “Committee for the Defense of the Carmelite Church.” Most of its members were active in other associations that had sprung up in the city since the end of communism. They mostly had strongly nationalist agendas and were strongly anti-Ukrainian. The most influential figure in the church campaigns was President of the Association in Memory of the Young Eagles of Przemys´l (the Eagles were schoolchildren killed in fighting between Poles and Ukrainians in the city in 1918). Some activists had personal memories of wartime Ukrainian atrocities and of Siberian camps. For them, as for most members of the Ukrainian Greek Catholic minority, their Polish national identity was thoroughly entangled with their Roman Catholic religious identity. Following street protests, hunger strikes and sit-ins by these groups allowed the building to remain in the hands of the Carmelites. Instead, when the Pope visited Przemys´l he made a gift to the Greek Catholics of the city’s Jesuit church, the building in which they had been holding their services on an unofficial basis ever since 1956. But this was by no means the end of the matter. The most striking later conflicts have concerned the dome of the Carmelite Church, which was added to the building by the Greek Catholics in the late nineteenth century. The same Polish nationalist groupings which in 1991 campaigned to prevent this building from being restored to the Greek Catholics began in 1992 to press for the demolition of the dome, which to them was an unwelcome Ukrainian intrusion into their Polish skyline. After years of wrangling the dome came down in 1996—against the instructions of the Conservation authorities in Warsaw, but with the connivance of local officials, including an excommunist Conservation Officer appointed by a coalition of nationalists and post-communists.21 Nobody asked the Greek Catholics for their opinions; they were powerless, as was their state, to influence the course of events; several interviewees said they had cried when the huge dome was finally dismantled. All this happened in the year of the 400th anniversary of the Union of Brest. Though Przemys´l is the seat of the Metropolitan, no major anniversary celebrations were held in the city—possibly for fear of provoking further strong action from Polish nationalists. (The main focus for celebrations was the small town of Jaroslaw nearby, with only a tiny Greek Catholic community). The Greek Catholic Bishop accepted the gift of the former Jesuit church from the Pope, and substantial renovation has since been undertaken. However, difficulties remain: some Greek Catholics do not feel at home in this building, because it was built by Roman Catholics and they know that the nationalists still perceive it to be a Polish church. They have had difficulty in persuading the Conservation Officer to allow them to remove the Jesuit symbol and Latin inscription from the facade of the church and to replace them with a new text in Cyrillic (the Latin gives the former name of the church, the Sacred Heart

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of Jesus, a cult which has no place in the Eastern tradition; it was inscribed following renovation in 1906, but in this case, in contrast to the case of the Carmelite dome, the Conservation Officer is taking the view that a later alteration to a religious building must at all costs be respected). There is also disagreement over the building of a belltower. At every step the Greek Catholics feel they encounter obstruction based on anti-Ukrainian sentiment. They believe this to be prevalent in the Roman Catholic hierarchy as well as among the secular authorities. Polish nationalists have also used the new freedoms they enjoy in the public sphere to foment anti-Ukrainian sentiment in several other contexts. They have rebuilt the monument to their “Young Eagles,” while condemning efforts by Ukrainians to commemorate their dead as treasonable. These groups are only weakly represented on the city council in Przemys´l, yet they have exercised a baleful influence on the post-communist public sphere throughout the 1990s.22 For example, they have opposed the city’s participation in the Carpathian Euroregion, an initiative which has attracted support from Warsaw and from international sponsors, but which is unwelcome to the nationalists because it is perceived as a dilution of national sovereignty. Another initiative from Warsaw was to relocate the country’s Festival of Ukrainian Culture from the Baltic Coast, where it was inaccessible to Ukrainians, to a city where it really might serve to build more cultural bridges. But this logic was unwelcome to the city councilors, who opposed this festival strongly in 1995 and 1997. Young men plastered the city with anti-Ukrainian posters and there was a serious arson attack on the Ukrainian club. This is why I speak of a decline in civility in the post-communist years. There is one dimension of civil society in which the wishes of Warsaw elites have coincided with local preferences, and that is the loosening of previous controls over cross-border trade. Ukrainians have become very visible on the streets of Przemys´l and some claim that at its peak in the early 1990s the bazaar was the second largest in the country, after that of the capital. There is no doubt that this has brought benefits to many Poles; city officials in 1998 estimate that as much as one-third of the local economy is now directly or indirectly linked to trade with Ukraine. However, it has remained mostly very small-scale. While some dynamic entrepreneurial contacts may be developing, the more visible forms of economic contact are pathetic and sordid. Many of the Ukrainians who come to Przemys´l have to endure tough conditions to achieve very small rewards. The number of Poles who travel east is much smaller. Overall it must be doubted if these economic policies have contributed significantly to improved interethnic trust. It is possible that the new bazaars have only added another facet to the existing negative stereotype of a Ukrainian, a facet which, on the basis of his research in Przemys´l, the Rzeszo´w sociologist Jerzy Jestal has called “the dirty trader.”23 The nationalist right, while recognizing that this trade

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was a lifeline for many, including some of the new unemployed and the youths ready to paste up anti-Ukrainian posters, also calls for greater control to be exercised by the state, particularly over Ukrainians illegally selling their labor (usually for seasonal work on a daily basis.)

VI. SU MMARY AND C ONCLUSIONS I have used deliberately broad notions of civil society and civility to explore how the situation of the Greek Catholic minority in the region which is now southeast Poland has changed through time. For many centuries this was a typical zone of polyethnicity, showing very few of the characteristics of a civil society but allowing people of different languages and faiths to live in relative peace alongside each other. This harmony was destroyed by the growth of national movements in the century which separated the Springtime of Nations from Jewish genocide and Operation Vistula. This part of Eastern Europe seemed chronically unable to combine national community with civic institutions. The imposition of communism was a further setback for the latter, but at least the new, much more homogeneous state did bring more economic security, more cultural and social equality, and some respite from violence. As Adam Michnik notes in the article from which I have quoted at the beginning of this paper, many people had tremendously utopian hopes for what might follow communism and these were bound to be disappointed. Initially Greek Catholic Ukrainians had hopes that they too would receive compensation and justice, along with all the other victims of communism. In retrospect this was naive. The evidence that I have found in Przemys´l suggests that the fundamental problem of reconciling national identities with civic institutions has not been solved at all.24 Many members of the minority that I have been discussing would criticize Michnik’s formulation that Poland is a country of one nation. Certainly Michnik is on the side of those who wish to see an open civil society, but his use of the word culture in the singular is problematic. Ukrainians would argue that even within the Catholic Church in Poland there are two quite separate cultures. Too many commentators and advisers to Eastern European governments were also naive in assuming that passing better laws in Warsaw and the promotion of voluntary associations and strengthening local democracy at the expense of the discredited communist state would be conducive to a healthy civil society. In fact, even the old communist constitution was unexceptionable in its declarations concerning minority rights.25 The difficulty lay in ensuring that such principles were implemented. Poland’s post-communist constitution makes only brief reference to the protection of national, ethnic, and religious minorities (compared for example to the new Slovak and Czech Constitutions) though the establishment of a parliamentary Commission for Minority Affairs

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has led to many constructive initiatives in various parts of the country. However, this has not been enough to resolve tensions in places like Przemys´l, where a similarly titled commission established at municipal level never functioned at all. Certainly many voluntary associations flourished outside political structures, but most have been organized by a relatively small group of embittered antiUkrainians. They have taken advantage of new media freedoms to disseminate their highly emotive version of the past, which focuses on Ukrainian nationalists’ terrorist actions of the 1940s. The awkward fact is that, from some points of view, members of the minority were better off under the communist regime, which did not grant them legal recognition but did not tolerate the nationalist excesses which have caused a general decline in civility in recent years. That was also a regime which guaranteed its citizens security of employment. It is usual to identify civil society with individualism and market competition, but high unemployment and endemic economic insecurity can also contribute to a recession of civility. This can affect young people most strongly: there is disturbing evidence that antiUkrainian sentiment is by no means restricted to those old enough to remember the suffering of the 1940s, but is very strong among the young people of Przemys´l.26 Since nobody would argue for a return to communist order, the question arises as to how the minority can best be protected in the current post-communist conditions. This can be addressed institutionally at several levels, of which I shall mention just a few. The first is the level of local political institutions. Although Ukrainian, a widely respected doctor and a very active member of Solidarnos«c« was a member of the Przemys´l Citizens’ Committee in 1989 and then of the first post-communist council in the city; he was not reelected in 1994. Since then the Ukrainian minority has had no representation. It is scattered across the city, and it seems that no one expects Polish voters ever to elect another Ukrainian to the council. Therefore legislation to promote the development of a system of minority self-governments along the lines pioneered recently in Hungary would seem highly desirable.27 At the national level of politics, it would seem that state-periphery relations do not work effectively in post-communist conditions; the present Polish state does not have the resources to ensure that its writ will be effective in matters where, for civil society, it needs to be effective. The clearest example from Przemys´l is the way in which local Polish nationalists were able to flout the decisions of national Conservation Officers, claiming all the while that they were behaving as good democrats. It may be a hard lesson to learn in the aftermath of communism, but the fact is that central state institutions need strengthening in important areas if minorities are to be protected. Local transgressions need to be met with firm sanctions. The dramatic nature of Poland’s rupture with communist economic practice

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in 1990 (“shock therapy”) probably contributed further to social dislocation and endorsement of extremism in the name of the national community. It follows that a clear commitment to rebuilding the social democratic role of the state, not the old centrally planned and state-owned economy but the welfare and social security responsibilities that people valued highly from the communist period, is also desirable. So too would a clearer lead from the state in educational policy. History teaching in particular would benefit from approaches that were not focused so exclusively on the Polish nation, and that would convey to pupils at least some basic data about the culture and history of all of Poland’s immediate neighbors as well as her own minority groups. These points may seem extremely general and far removed from the subject of how best to protect the rights of religious minorities. However the present Constitution deals with religious minorities in the same article that it treats national and ethnic minorities.28 Since all Greek Catholics in Poland are Ukrainian, the national identity that has persistently evoked some of the most negative stereotypes among Poles, the conflation of religious and ethno-national identities seems particularly justified in this case.29 Many Poles still have difficulty in accepting Ukraine as a fully sovereign nation, with cultural traditions on a par with their own or with those of Russia. It is intensely paradoxical that the secular identity which poses such problems of recognition should be tied to a religious identity uniquely close to that of the majority—a sister Catholic Church. This is the precarious condition of the Greek Catholics, whose fate I have traced from premodern polyethnicity through their active role in the age of nationalism and their survival strategies under communism, down to contested reemergence in the 1990s. There is a danger that the pressures on the minority could increase further when Poland joins the European Union, if this is accompanied by renewed modernist attempts to make political and cultural units congruent, but now at a level higher than the nation state, i.e., to present the cultural boundaries of Europe as those of Latin Christianity. There is an alternative: to see in Greek Catholic traditions a source of creativity and cultural hybridity of the sort that Eastern Europe badly needs if it is to construct a more civil society out of the wreckage of communism and the legacies of malignant ethnic nationalism.

endnotes 1. Adam Michnik, Nationalism, Social Research 58 (4), 757–63; excerpted in Gerasimos Augustinos, The National Idea in Eastern Europe; The Politics of Ethnic and Civic Community 134–9 (Washington D C: Heath, 1995). As Gerasimos notes (138), “Black Hundreds was an antirevolutionary and anti-Semitic organization founded in Russia at the time of the 1905 revolution.” 2. Ernest Gellner, Conditions of Liberty; Civil Society and Its Rivals (London: Hamish Hamilton, 1994).

452 chris top he r ha nn 3. Ju¨rgen Kocka, The DifÞcult Rise of a Civil Society; Societal History of Modern Germany in Mary Fulbrook (ed.), German History Since 1800 493–511, 498–9 (London: Oxford University Press, 1997). 4. C.M. Hann, Introduction and Second Economy and Civil Society, in Hann (ed.), Market Economy and Civil Society in Hungary 1–44 (London: Frank Cass Publishers, 1990); Chris Hann, Political Society and Civil Anthropology in Chris Hann and Elizabeth Dunn (eds.), Civil Society; Challenging Western Models 1– 26 (London: Routledge, 1996). 5. Adam Seligman, The Idea of a Civil Society (Princeton, New Jersey: Princeton University Press, 1992). 6. C. M. Hann, A Village without Solidarity; Polish Peasants in Years of Crisis 197 (New Haven and London: Yale University Press, 1985); C.M. Hann, Ethnicity in the New Civil Society: Lemko-Ukrainians in Poland in Laszlo Kurti and Juliet Langman (eds.), Beyond Borders; Remaking Cultural Identities in the New East and Central Europe 17–38 (Boulder: Westview Press, 1997). 7. Janusz Mucha, The Status of Unbelievers as a Group in Polish Society, 20 (3) Journal of the Anthropological Society of Oxford, 209–18. 8. For further historical references in support of the outline sketched in this section see C. M. Hann, Postcommunist Nationalism; Rediscovering the Past in Southeast Poland (forthcoming). 9. I use the old term Ruthenian to describe this Eastern Slavic population because it is anachronistic to speak of Ukrainians before the emergence of this national identity in the nineteenth century. The principle self-designation, enduring well into the twentieth century and still preferred by some Eastern Slavics in Sub-Carpathian districts (outside the focus of this chapter) is Rusyn. 10. C. M. Hann, Christianty’s Internal Frontier, Anthropology Today 4, 3, 9– 13 (1988) 11. Paul J. Best, The Apostolic Administration of the Lemko Region, paper prepared for conference, The Catholic Church Unions in Central and Eastern Europe – Idea and reality, Krasiczyn, October 1996. 12. Jerzy J. Wiatr gave a figure for combined minorities of only 1.3%. See Jerzy J. Wiatr, Polish Society in Poland, A handbook, 126–45, 137 (Warsaw: Cluterpress, 1977). 13. The discussion in this and the following paragraph is based on Mirosław Czech. O Toz˙ samos´ ci Grekokatoliko´ w 7–27 (1992). 14. See the autobiography of Stefan Dziubina, Vicar-General of the Greek Catholics in Poland between 1977 and 1981: Stefan Dzuibina, I Stwierdi Dilo Ruk Naszich (1995). 15. Some Greek Catholics in Poland would prefer an arrangement which placed them within the jurisdiction of the Greek Catholic Cardinal in L’viv, Ukraine. This is ruled out by the Catholic Church’s preference in recent times for linking its own hierarchy to that of sovereign nation states. 16. A full listing of secular and religious Ukrainian organizations (including some which prefer the “regional” designation Lemko to the national designation Ukrainian) can be found in Ukraincy W Polsce 1989–1993, 290–304 (1993).

Polish Civil Society 453 17. This research has been undertaken as part of a project funded by the Economic and Social Research Council of Great Britain, the Politics of Religious Identity; The Greek Catholics of Central Europe (R000236071). I am particularly grateful to my main partner in this research, Dr. Stanisław Ste˛pien´, Director of the Południowo-Wschodni Instytut Naukowy in Przemys´l. 18. No official figures are available. Most people base their estimates on the numbers of people attending Greek Catholic services; some speak of “400 families.” The number of residents who have concealed a Ukrainian identity in the last half century is certainly considerable, but these have generally continued the concealment in the post-communist years. There has been an Orthodox parish in the city since 1984, but this is attended mainly by recent migrants who were brought up in that faith; the great majority of Przemys´l Ukrainians and of the recent return migrants have remained faithful to the Greek Catholic Church, which began functioning here again in 1956; see further discussion below. 19. Some Poles put forward the somewhat specious argument that since the Palace was constructed in 1905, when the city was part of Austrian Galicia, it cannot now be claimed by a body calling itself the Ukrainian Catholic Church. 20. I have outlined these events in more detail in C. M. Hann, Postsocialist Nationalism: Rediscovering the Past in Southeast Poland, 57(4) Slavic Review 840–63 (1998). 21. Some nationalists and Roman Catholics challenged the right of a government Minister in Warsaw to make decisions concerning ecclesiastical buildings on the basis of secular law. They advanced the claim that the external appearance of this church should be determined by the canon law of the Carmelites, which they alleged prohibited such a dome. (This claim was spurious—the Carmelites have no such law.) See Jagienka Wilczak, Spo«r w Rozbio«rce, Polityka, December 7, 1996, at 30–32. 22. For several years in the early 1990s the President of the city was a local lawyer who worked closely with nationalist groupings, e.g. in connection with the disputes over the Carmelite church. He protested in a newspaper interview (see Zycie Przemyskie, November 18, 1992, at 3) that this work did not conflict in any way with his council duties. 23. Jerzy Jestal, Stereotyp Ukrainca w s«wiadomos«ci mlodziezúy Polski Po·udniowowschodniej, Fraza 4, 5–6, 89–97 (1995). 24. For comparative materials on this theme from different parts of the excommunist world see Paul Latawski (ed.), Contemporary Nationalism in East Central Europe (Basingstoke: MacMillan, 1995); Anatoly Khazanov, After the USSR; Ethnicity, Nationalism and Politics in the Commonwealth of Independent States (Madison: University of Wisconsin Press, 1995). For a comprehensive survey see Leslie Holmes, Post-Communism: An Introduction (Cambridge, England: Polity Press, 1997). 25. Art. 81 read as follows: “1. Citizens of the People’s Republic of Poland irrespective of their nationality, race or creed have equal rights in all areas of the life of the state, of political and economic life as well as in social and cultural life. Contravention of this principle by any discrimination, direct or indirect, or restriction of rights according to national, racial or religious criteria, will be liable to punishment. 2. The spreading

454 chris top he r ha nn of hatred or contempt, the provocation of discord or the humiliation of a human being on the basis of differences in nationality, race or creed, is forbidden.” 26. Jestal, above n. 23. 27. For further information about the Hungarian system, see Self Government in Hungary; The Gypsy/Romani Experience and Prospects for the Future (Project on Ethnic Relations, 1998). 28. There seems to be no consistent distinction between these two versions of secular minority. Some sociologists have gone further and developed a more general concept of “cultural minority” to refer to any group or category outside the “dominant culture;” this can include the handicapped, homosexuals, women, and of course atheists. See Mucha, above n. 7. See also Mucha, Democratization and Cultural Minorities; the Polish Case of the 1980s/90s, 25(4) East European Quarterly, 463–82. 29. It should be pointed out that by no means all Ukrainians are Greek Catholic. In fact probably the majority are Orthodox, but that does not alter the argument here. On negative stereotypes of Ukraine see Klaus Bachmann, Na czym polega problem polsko-ukrainski, Rzeczpospolita, September 27–8, 1997. See also Hann, above n. 20.

Chapter 15 t h e c a t h ol i c c h u r c h i n p os t -c om m u ni st e u r o p e Timothy Byrnes

The Roman Catholic Church has the potential to play an inßuential role in the protection of ethnic and religious minorities in post-communist Europe. In the Þrst place, the Church is an important social and political institution in a number of individual European states, particularly in those located in what used to be called the communist bloc. In addition, and crucially, the Roman Catholic Church is also a highly centralized transnational institution, capable, in theory at least, of developing and in some sense enforcing a coherent and consistent policy of defending human rights and religious freedom across the continent. This chapter is an exploration of this proposition. It is an examination of the extent to which the Roman leadership of todayÕs Catholic Church is able to adopt any coherent and consistent response to the profound changes that took place in European politics in the last decade of the twentieth century. In a way, this chapter is a kind of a Òmost likelyÓ case study of the ability of transnational religion to play a constructive role in post-communist Europe. Robert GoeckelÕs chapter, which follows mine in this volume, deals with less centralized church structures and with what he calls religious NGIOs. I, however, address a church that is not only the most centralized transnational religious institution in the world, but is also among the most hierarchical transnational institutions of any kind active on the political stage. Moreover, the Catholic Church is also an institution whose central leadership (the Pope and

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the VaticanÕs curia) is quite publicly committed to the defense of human rights and whose authoritative teachings, since 1965 anyway, are explicitly supportive of religious freedom. If the Catholic Church is not able to organize itself to work effectively, transnationally, in the defense of minority rights, one would be tempted to conclude that other transnational religious movements are not likely to be very successful in that regard either. What I will be exploring here, then, is the relationship that currently pertains between the soaring rhetoric of unity and tolerance that emerges from the Vatican, and the role that the Church, in all its myriad institutional manifestations, actually plays in the conßicts and tensions currently bedeviling European politics. I will focus speciÞcally not on the ChurchÕs role in defending religious minorities, but on a much broader assessment of the degree to which it is even appropriate to think of The Church, in the sense of a single institutional entity, as capable of adopting, implementing, or enforcing any uniÞed vision for the future of European society. Once I have made that assessment, then I will be able to return to the question of religious freedom, and to the ways in which the Catholic ChurchÕs role might be different from, or complimentary to, that of the kind of the religious institutions Goeckel takes up.

I . THE C ATHOLIC C HU RCH AS AN INSTITUTION The Catholic Church can lay claim to the ability to participate in European politics simultaneously on at least three separate levels of political activity. The Church acts at the international level through the diplomatic activities of the Pope and the VaticanÕs curia; at the state level through national primates and the various state-based bishopsÕ conferences; and at the sub-state level through the numerous parishes, dioceses, and social service agencies that dot the Catholic landscape across Europe. The Pope receives the lionÕs share of the media attention, but analysis of the ChurchÕs role as a political actor must go well beyond the Pope to include these other levels of the ChurchÕs institutional structure. That is not to argue, of course, that Pope John Paul II is not a central Þgure in world Catholicism with substantial internal authority and external inßuence. To the contrary, he has staked out a prominent and inßuential place for himself on the stage of world politics. But just as clearly, the Pope and his diplomatic staff in Rome are not the ChurchÕs only participants in the post-communist politics of East Central Europe. National bishopsÕ conferences, for example, organize the Catholic hierarchy by state and protect and advance the ChurchÕs institutional and political interests both within each state and at times in interstate relations. We will see shortly, for example, that the Polish bishopsÕ conference is deeply involved in the domestic political debates inside the Republic of Poland. However, that same bishopsÕ conference has also taken an active role

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in the discussions surrounding PolandÕs membership in NATO and prospective membership in the European Union. Similarly, the Slovak and Hungarian bishopsÕ conferences have been active both in the domestic politics of their own homelands, and in the very troubling ethnic politics that have plagued relations between Slovaks and Hungarians since the arrival of Slovak independence in 1993. Even this expansion of focus to include national hierarchies, however, is not enough to capture the full texture of the Catholic ChurchÕs participation in contemporary politics. The Church is led by the Pope and the bishops. But according to the Vatican CouncilÕs ÒDogmatic Constitution on the Church,Ó the Church, in its truest sense, is the Òpeople of God,Ó the ordinary Catholics who make up such large percentages of the populations of the European continent. These Catholics, organized in dioceses, parishes, schools, universities, social service agencies, fraternal organizations, and national communities, are also central players in forging the future of post-communist Europe. Indeed, the Catholic people, the Church in this sense, are meant by the Pope to be both the foundation and the building blocks of a new, more uniÞed Europe. The Pope has articulated a vision of a new Europe, based not merely on intergovernmental political institutions and a single market, but also on the Christian heritage and cultural traditions that he believes once shaped and sustained European society. However, it is up to the bishops to implement and advance that vision in various political settings. And, perhaps most crucially, it is up to ordinary Catholics, the people of God, to embody that unity in their everyday interactions with each other, and with other citizens of Europe.

II . JOHN PAU L II AND THE DEFINITION OF A NEW EU R OPE When Karol Cardinal Wojty·a of Krako«w was elected to the papacy in October 1978 his hopes for Europe centered on the erasure of the Yalta divisions, and the creation of a single continental society, Òfrom the Atlantic to the Urals.Ó1 It is easy to forget now just how radical such a vision appeared in 1978. The Polish Pope was not going to be satisÞed with continuing Ostpolitik, Pope Paul VIÕs opening to Eastern Europe.2 Rather, John Paul II envisioned the end of the very concept of Eastern Europe, and the creation of a single, all-inclusive, continental identity. Always sensitive to the power of symbols, John Paul II emphasized his desire for a return of the East to its rightful place in European society through his designation of Saint Cyril and Saint Methodius as Òpatron saints of Europe.Ó This elevation of Òthe Apostles to the SlavsÓ was a clear signal of the PopeÕs grand geopolitical vision, and of his equally grand notion of his churchÕs role in bringing that vision to fruition. The roots set down by Cyril and Methodius,

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he said in an early encyclical, Òconstitute an extremely Þrm foundation that cannot be ignored in any serious attempt to recreate the unity of the continent in a new way, relevant to our times.Ó3 Over the last few years, a debate of sorts has taken place concerning the role that the Pope actually played in the radical transformation of European politics between 1989 and 1992. George Weigel weighed in with an early assessment when he argued in 1992 that Òwhat Lenin started at PetrogradÕs Finland Station on April 16, 1919, . . . Pope John Paul II began to dismantle at the Jasna Go«ra Monastery in Czeþ stochowa, the shrine of the Black Madonna, Queen of Poland, on 4 June 1979 [during his Þrst visit to his homeland].Ó4 More recently, Carl Bernstein and Marco Politi have generated attention and controversy through their claim that there was a ÒHoly AllianceÓ between the Vatican and the Reagan administration, created and carried out explicitly for the purpose of tearing down Soviet communism.5 Jonathan Kwitny, on the other hand, has denigrated Bernstein and PolitiÕs reporting and argued, in effect, that the Pope, KwitnyÕs Òman of the century,Ó accomplished the historic task himself, without President ReaganÕs help.6 I have no intention of adding my own voice to this debate. I will merely point out that John Paul IIÕs vision of a single Europe, from the Atlantic to the Urals, is much closer to reality today than it was when he was elected Pope. The Iron Curtain fell, the Berlin Wall crumbled, the Warsaw Pact dissolved, and Poland, Hungary, and the Czech Republic have joined NATO. I will leave it to others to assess the proper amount of credit that the Pope can take for all of this. I am much more interested at the moment in assessing the role he and the Catholic Church are going to play now, after the great transformation. Now that the PopeÕs new Europe is no longer a pipe dream, in other words, what role will the Church play in shaping its future? For his part, the Pope has been very clear that Christianity should form the basis of a uniÞed post-cold war European continent. This was a central theme, for example, of his visit to Poland in 1997: The foundations of the identity of Europe are built on Christianity. . . . [W]ithout Christ it is impossible to build lasting unity. It cannot be done by separating oneself from the roots from which the nations and cultures of Europe have grown. . . . How can a Òcommon houseÓ for all of Europe be built, if it is not built with the bricks of menÕs consciences, baked in the Þre of the Gospel, united by the bonds of fraternal social love, the fruit of the love of God?7 Moreover, he has been equally clear that the peoples of the former Soviet satellites should work to preserve and re-ignite this purportedly common Christian heritage by resisting what John Paul has called EuropeÕs Òcivilization of

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desire and corruption.Ó8 Not surprisingly, the Polish Pope has been most explicit concerning the role his own homeland should play in all this and he has argued that Poland has a the right and responsibility to bring its own distinctive history with it as it Òreturns to Europe.Ó ÒPoland has no need to join Europe,Ó he has said, Òbecause it already is in Europe, at its center. Poland should become a member [of Europe] with its own values, without adapting itself uncritically and blindly to Western customs.Ó9 In 1978, the Pope was anxious merely to erase the political divisions of Europe. Now, he is intent on an even more ambitious project: the reevangelization of a uniÞed Europe through the reintegration of the faithful East with the secular West.

III. THE C ATHOLIC CHURCH IN POST-C OMMU NIST STATES The PopeÕs project, of course, requires continued Christian faithfulness on the part of the peoples of East Central Europe as they integrate more closely with the West. That is why John Paul II has been so insistent that these peoples resist what he takes to be the seductive lures of the secular and commercial West. ÒOne ought not to underestimate the danger that the newly won freedom for contacts with the West can bring with it,Ó he said in Prague, for example. ÒUnfortunately, not everything that the West offers by way of theoretical vision and practical lifestyles reßects the values of the Gospel. Thus it is necessary to prepare immunizing defenses against certain viruses, such as secularism, indifferentism, hedonistic consumerism, practical materialism, and the formal atheism that is so widely diffused today.Ó10 In some settings, Pope John Paul II faces steep, if not insurmountable, barriers to the effective use of the institutional Catholic Church as an instrument of resistance or re-evangelization. The Czech Republic, for example, is itself a highly secular society. Individual priests played important roles in the Velvet Revolution, but in part because of the prominence of Protestantism in Czech history, and in part because of the particularly aggressive anti-religion policies of the Czech communists, the Catholic Church is poorly positioned to play a guiding role in the transition to democracy in the Czech Republic.11 In Hungary, a relatively high level of cooperation between Church and government during the communist era rendered the Church less useful as either a spur to revolution or a framer of social transition than it otherwise might have been.12 And in places as diverse as Slovakia, Romania, and Croatia, the Catholic Church and its leadership are tied so closely to ethnic divisions and conßicts that it is difÞcult to separate actions taken for the defense of the faith and the PopeÕs vision from those taken for the advancement of far more narrow national and sectarian interests.13 I do not mean to dismiss in these brief thumbnail sketches the role that the

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Catholic Church can and does play in the post-communist politics of these societies. Indeed, I will return later to rather lengthy discussion of some of them. Instead at this point, I merely mean to suggest that the central test case of the PopeÕs vision is Poland. If Christianity is going to serve as the foundation of a new European unity, then that Christianity must be preserved in Catholic Poland, above all other places. After all, how can the Pope realistically hope for re-evangelization of Europe if religion and the Church are pushed to the margins of political and social life in his native Poland?14 The Catholic Church has played a prominent role in Polish society from the beginning. In fact, the inauguration of the Polish state is dated to the conversion to Catholicism in 966 of Duke Miezko I. Throughout Polish history, with its numerous partitions and foreign occupations, the Church has served as an indispensable repository of Polish nationalism and even at times as an indispensable defender of Polish national and cultural survival. The identiÞcation of Polish nationhood with Roman Catholicism should not be oversimpliÞed or overstated. That would do justice neither to the other religious communities that have been part of the Polish nation, nor to the complex way in which the interests of the Church and the nation have sometimes cut across each other.15 Nevertheless, since at least World War II and the tragic circumstances that created a nearly homogenous Catholic Poland and, then, imposed a foreign political system on the Polish nation, the Catholic Church has been closely associated with Polish culture and with the persistent aspirations for true Polish independence. ÒNext to God, our Þrst love is Poland,Ó was how national primate Stefan Cardinal Wyszyn«ski put it.16 And through the long decades of communist rule his words pretty accurately expressed the priorities of the Polish Catholic Church. By the 1970s and 1980s, the Catholic Church and its leadership had been drawn ever more deeply into the maelstrom that was Polish politics at that time. The election of Krako«wÕs Wojty·a as Pope in 1978 energized the Polish political opposition tremendously and dramatically reemphasized the great distance between the aspirations of the Polish people and the realities of Polish politics. The rise of the Solidarity trade union following the election of the Polish Pope, and the degree to which Solidarity relied upon Catholic symbolism and religious rhetoric served to create the perception that the victory over communism was a victory of the Catholic Church, as an alternative source of authentically Polish authority, over a political system imposed from the outside. The reality was, again, far more complicated than these perceptions implied. In fact, much of the ChurchÕs leadership, certainly both Wyszyn«ski and his successor, Cardinal Glemp, had lagged well beyond Solidarity, and cautioned repeatedly during the 1980s that the Polish opposition should go slowly and should not ask for more than was possible given the realities of Soviet power and interests.17 Nevertheless, the perception of a church victory over commu-

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nism in the end lent an air of triumphalism to the ChurchÕs approach to politics during the early, heady days of Polish democracy. Catholic instruction was quickly reintroduced in public schools; access to abortion was sharply curtailed; and the government signed a concordat with the Vatican, guaranteeing through international treaty the institutional autonomy of the Roman Catholic Church in Poland. By 1993, a backlash had apparently set in against the prominent role played by the Church in democratic Poland. In September of that year, the parties most closely associated with the Church were defeated in parliamentary elections. A coalition comprising the former communists (reconÞgured as the Democratic Left Alliance) and their old allies in the Polish Peasant Party took power and set about, among many other things, trimming back the ChurchÕs victories of the previous four years. Most prominently in this regard, abortion law was re-liberalized and the concordat with the Vatican was left unratiÞed. When Solidarity hero and devout Catholic Lech Wa·eþ sa was defeated in the 1995 presidential race by former communist minister Aleksander Kwas«niewski, the Church was, to say the least, thrown on the political defensive. This string of political defeats for the Church in the mid-1990s led to talk of the rapid secularization of Polish society, and of the PopeÕs ÒshatteredÓ hopes for Eastern Europe.18 In time, however, this talk turned out to be premature. It is true that there was a degree of backlash against the ChurchÕs aggressive approach to politics and policy. There is no question that the secular left took political advantage of that backlash in 1993. And there is no doubt that many Poles were, and are, wary of the political standing and inßuence of their largest church. However, it would be a mistake to over-dramatize the magnitude of the backlash against the Church, or to over emphasize its political losses, particularly in 1993. What looked at the time like a long-term decline in the ChurchÕs status and inßuence, may rather have been more of a short-term setback, attributable in large part to suicidal fractiousness and shortsightedness on the part of tits political allies. As a matter of fact, the political shocks of 1993 led the parties of the right, the parties most likely to do the ChurchÕs bidding, to form more workable political coalitions and to face the reconstituted left with a more coherent and a more nationally viable political program. In 1997, these parties went to the polls in close cooperation as Solidarity Electoral Action; unseated the Democratic Left Alliance or Òpost-communistsÓ; and took the reins of government in coalition with their centrist allies, the Freedom Union. Much of this ideological vacillating is attributable to an understandably high level of retrospective voting on the part of the Polish electorate. The Solidaritybased parties won in 1989 because the people hated communism; the Democratic Left Alliance won in 1993 because the people had grown wary of economic and social reform. And the former communists then lost in 1997 because

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their government had become associated with both the degradations of communism and the uncertainty of reform. However, part of the explanation for the volatility in recent Polish electoral politics is also that Poland is in the process of developing, in fact rather rapidly, what might be called a normal European political spectrum. Communism, and its immediate aftermath, were shocks that powerfully distorted Polish politics. But by this point in the transition, the political spectrum, like the spectrum in many parts of Europe, is characterized by a social democratic, secular left; a nationalist, Catholic right; and two, or perhaps three, centrist groupings in between. It is not at all clear, of course, how these political combatants will fare in any given election. But it is clear that, for the time being at least, these are the major combatants on the political battleÞeld, and that power will likely shift back and forth between them over time, just as it does in most mature democracies. Clearly, if this analysis is correct, the Catholic Church will continue to play an active and inßuential role in Polish politics for some time to come. It is not likely to drive the agenda as it did after 1989; but it is also not likely to be marginalized as it seemed to have been after 1993. Instead, it will participate, indeed it needs to learn to participate, as one very important organized interest, among several others, in a democratic, pluralist polity. In such a polity, I hasten to add, the Church can still score substantial victories. Just in the relatively brief period since its political allies returned to power, for example, access to abortion has been again severely restricted, and the concordat with the Vatican has Þnally been ratiÞed at long last. But it is also the case that in such a polity the political role of the Catholic Church will be shaped fundamentally not by the activities of the ChurchÕs leadership, in either Warsaw or Rome, but rather by the activities and commitments of PolandÕs version of the Òpeople of God.Ó If the Polish people, over ninety percent of whom are at least nominal members of the Catholic Church, adopt the secular and commercial attitudes that the Pope so roundly decries, then it really does not matter what the Pope says, or what the bishops in Poland do. The inßuence of the institutional church in Poland will wane. But if, on the other hand, the Polish people cling to a worldview based recognizably on Christian resistance to liberalism, individualism, and commercialism then the Church, in all its complexity, would be likely to remain near the very heart of Polish politics. What the Polish case demonstrates above all, then, is that the role of the transnational Catholic Church in the post-communist politics of East Central Europe is determined by a complex set of relationships that exists within the Church itself. The Pope has his vision, and the bishops are committed (more or less) to the implementation of it. However, the realization of that vision relies most fundamentally on the element of the Church that is most diffuse and least subject to institutional control: ordinary Catholics. The pope wants the Cath-

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olic Church to form the foundation of an alternative vision of European union. The problem for the Pope is that the Òpeople of GodÓ who make up that church, not just Poles, but also Hungarians, Czechs, Slovenes, and others banging on the door of NATO and the EU, may well have something much more prosaic, much more economically instrumental, in mind when they envision their own Òreturn to Europe.Ó

IV. THE C ATHOLIC C HU RCH AND ETHNIC CONFLIC T IN POST-C OMMUNIST EUROPE In the case of the ChurchÕs role in Polish politics, the Pope can at least rely on the national hierarchy to share his basic deÞnition of its interests. The question of the peopleÕs commitment to the Church and its program remains open, but the institutional Church is, relatively speaking, pulling in the same direction.19 In a number of settings where the Church faces ethnic and religious conßict, however, it is local bishops and even national bishopsÕ conferences, in addition to ordinary Catholics, who may sometimes have interests that diverge from those emphasized in the Vatican. In these cases, the Pope has spoken passionately of his hope that the Catholic Church will ameliorate tensions through both its rhetorical message of peace, and more importantly, through its membersÕ commitment to reach across ethnic barriers to forge unity with fellow Christians of differing nationalities. The head of the transnational Catholic Church, in short, has said again that he wants his church to bring Europe together. But implementation of that vision, also again, requires the cooperation and participation of institutional levels of the Church that are not entirely under the VaticanÕs control. In this section, I will examine these dynamics in two places: the Slovak Republic and Romania.20 The Þrst is the setting of ethnic conßict within the Church, where Slovak Catholics and Hungarian Catholics, living in southern Slovakia, meet each other across a wide, and potentially dangerous, national chasm. In the second setting, Romania, the role of the Church is complicated, to say the least, by the cultural and political dominance of the Romanian Orthodox Church, and by the presence of a large Greek Catholic, or Uniate, community in Transylvania.

a. slovakia The Slovak people gained true national independence for the Þrst time in their history only in 1993. For many, many years, the area that is now the Slovak Republic was part of the Hungarian state. Slovaks were culturally and linguistically distinct from their Hungarian rulers, but like many other peoples in the

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region they were Þrmly rooted in a subordinate position in a multiethnic empire. These circumstances changed after World War I when the Hungarian state was dismembered by the Treaty of Trianon, and the Slovaks, along with the ethnic Hungarians living in southern Slovakia, were joined with the Czechs in the newly created state of Czechoslovakia.21 Multiethnic Czechoslovakia, of course, was itself the scene of national conßict from the very beginning. Hungarians protested being left on the Òwrong sideÓ of the Slovak border; Czechs, and especially Slovaks, feared Hungarian territorial ambitions; and Slovaks resented the cultural and political preeminence of their new countrymen, the Czechs.22 These tensions plagued Czechoslovakia in the interwar years and even led to a short-lived Nazi client state in Slovakia during World War II. Following that war and the reconstitution of Czechoslovakia, however, these ethnic tensions were suppressed by Soviet domination and by the communist regime. These tensions, not surprisingly, have reemerged after 1989, and they have come to play an important role in shaping the post-communist politics of this particular region. The Czech-Slovak dispute was resolved by the Òvelvet divorceÓ of 1992, and by the establishment of Slovak independence the following year. But the Slovak-Hungarian problem has endured, and even worsened, as approximately 650,000 ethnic Hungarians have found themselves citizens of a brand new Slovak state bent upon aggressively asserting its independence and clearly emphasizing the distinct national identity of its people. Unfortunately for all concerned, these underlying tensions were exacerbated and manipulated for political advantage for a number of years by former Slovak Prime Minister, Vladimir Meciar. Meciar, a former communist ofÞcial, picked up the mantle of Slovak nationalism and made it a basis of his political power and a guide to his policy program. He repeatedly relied on nationalist rhetoric and nationalist policies in his dealings with the Hungarian minority within the his country, and, in the process, succeeded in isolating the Slovak Republic internationally. MeciarÕs nationalism was an important factor, for example, in Slovakia being left off the original list of former communist countries who were invited to join NATO and invited to apply formally for admission to the European Union. The Catholic Church, for its part, has been deeply involved in this matter of ethnic relations between Slovaks and Hungarians within the Slovak Republic. First of all, the Church has been closely tied to Slovak nationalism for centuries. Catholic clergy were central players in the development of a distinct Slovak national identity and in the codiÞcation of a separate Slovak language.23 The Church was also an important institutional supporter of Slovak nationalism after World War I, and Jozef Tiso, the president of the Slovak state during World War II, was himself a Catholic priest.24 The Catholic Church was aggressively repressed by the communist authorities in Czechoslovakia, but has reemerged

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in independent Slovakia, institutionally viable and Þrmly committed to Slovak autonomy. Unlike most other national churches in the region, however, the Catholic Church in Slovakia is itself divided along ethnic lines. A majority of Slovaks belong to the Catholic Church, but so do a majority of the ethnic Hungarians living in the Slovak Republic. The Catholic hierarchy of Slovakia, therefore, has within its ßock a large unassimilated minority that is alienated from the majority, that is the target of political attack by the Slovak government, and that is the object of great concern on the part of religious and political leaders across the border in Hungary. Pope John Paul II has spoken often of the danger that ethnic conßicts pose for the future of European unity. In this particular instance, he has made it clear that he wants the Catholic Church to use its transnational channels of communication and cooperation to effect reconciliation between Slovaks and Hungarians in Slovakia, as well as between the Catholic communities in the neighboring states of Hungary and the Slovak Republic. A central theme of the PopeÕs visit to Hungary in 1991 was precisely this question of the protection of minority rights. The Pope called for an emphasis on Christian unity in postcommunist Europe, and for a renewed commitment to mutual respect and Òtolerant behavior.Ó25 In 1995, during his Þrst visit to independent Slovakia, John Paul II gave clear instructions on this matter to the newly constituted Slovak Bishops Conference: Besides Slovaks, Catholics belonging to other national communities also live in your country: Czechs, Romanians, and in notable measure Hungarians. . . . Diversity of language and culture must never be a reason for discord but should become an opportunity for reciprocal enrichment. In the ChurchÕs commitment to meet the legitimate expectations of minority communities, the dimensions of her catholicity appear with greater clarity. Obviously, the Church cannot submit to exploitation and demands made by any kind of nationalism; rather on the basis of her thousandsyear-old experience she feels obliged to respect the rights and duties both of the majority community as well as those of the minority communities present in the nation. 26 This emphasis on the ChurchÕs ÒcatholicityÓ and its respect for the Òrights and dutiesÓ of minority communities is, of course, a central element of the PopeÕs effort to encourage reconstitution of a Christian Europe. Movement toward greater union, not to mention toward a more Christian deÞnition of union, requires that Catholic peoples and Catholic hierarchies cooperate transnationally across the ethnic and national barriers that divide them. In the Slovak-

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Hungarian case, however, the record of cooperation and mutual support in this regard has been mixed, to say the least.27 On the one hand, the Slovak Bishops Conference clearly distanced itself from MeciarÕs brand of nationalism and publicly decried the most egregious examples of his anti-Hungarian policies. The bishops strongly opposed the Law on the Preservation of the Republic, for example, with its thinly veiled threats to Hungarian cultural autonomy and freedom of speech. And the bishops successfully deßected through their own negotiations with the former government some provisions of the original draft language law that were deemed most unacceptable to the Hungarian community. In fact, there was even a limited degree of coordination that took place in the latter instance between the Slovak bishops and their Hungarian counterparts in Budapest.28 Having said this, however, and despite these rather hopeful indicators, the role of the Catholic Church, as an institution, has thus far been quite limited in lessening conßict between Slovaks and Hungarians. For one thing, the Slovak bishopsÕ opposition to Meciar and his nationalist policies was neither monolithic, nor in truth related to the interests of the Hungarian minority. Some bishops actually supported Meciar and his policies, and even those bishops who opposed him did so because of the threat he posed to the ChurchÕs autonomy, not because of any threat he posed to Hungarians.29 Political circumstances have changes since MeciarÕs defeat in a 1998 general election and his replacement by a coalition government that includes the ethnic Hungarian parties. Above all else, however, the role of the Church in the amelioration of ethnic conßict in the Slovak Republic has been limited by the degree to which that conßict continues to take place within the Slovak Church itself. There is no doubt that Slovaks dominate the Catholic Church and its leadership inside the Slovak Republic. The controversy arises over whether that dominance amounts to mistreatment and persecution. Is the fact that there is no bishop of ÒHungarian bloodÓ in the Slovak Bishops Conference, for example, a nefarious indicator of Slovak chauvinism, or is it an innocent result of the VaticanÕs reluctance to appoint bishops or structure diocesan jurisdiction along ethnic lines? Is the shortage of Hungarian-language priests in the Hungarian language communities of southern Slovakia an indicator of discriminatory admissions policies at Slovak seminaries and a reluctance on the part of Slovak bishops to recruit candidates and priests from Hungary, or is it the unfortunate byproduct of a more general vocation crisis in the Hungarian Church? Are Slovak bishops and priests nationalists who purposefully block Hungarian Catholics from worshipping and receiving the sacraments in their own language, or are these bishops and priests devoted pastors serving all their people, Slovak and Hungarian, the best they can with the very limited personnel and resources available to them?30 It is, of course, difÞcult to answer these kinds of questions with objective

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precision. But the wildly divergent perceptions that lie at the heart of these questions are just the kinds of divergences that create ethnic tensions, and that if left unattended can lead to ethnic conßict. The signiÞcant fact for my purposes here is that these perceptions, and the tension that comes with them, are present within the Catholic Church in Slovakia, both among the Catholic people, and between clergy of the two national communities. Even discounting for Slovak platitudes and Hungarian hyperbole, we are still faced with a local element of the transnational Church that continues to divide itself institutionally, linguistically, and pastorally along ethnic lines. We are faced, in other words, with a church that is at least as much an arena of ethnic conßict as it is an instrument of ethnic reconciliation. This conclusion suggests, at the very least, that the transnational ChurchÕs role in the ethnic conßicts of post-communist Europe will be somewhat less constructive, and considerably more complex, than the Pope and his Vatican diplomats might hope it to be. Just as Poland served as a kind of test case for the viability of the ChurchÕs role in the domestic politics and policies of the formerly communist states, so the Slovak Republic should be viewed as a crucial test of its role in ethnic conßict. The Church in Slovakia, after all, would seem to be among the most likely to play a constructive role in the amelioration of ethnic conßict. The fact that shared religious identity has not been able to subordinate divergent national identity in Slovakia, where so many Slovaks and Hungarians share Catholicism, does not bode well for the role of Catholic leaders and Catholic people in settings like Romania, where the religious and national cleavages much more clearly reinforce each other.

b. romania The Catholic Church does not play nearly as central a role in the social and political life of Romania as it does in Poland and the Slovak Republic. In Romania, the Romanian Orthodox Church is the predominant religious force, and it, not unlike the Catholic Church in the other countries we have examined, has been working to reassert its status and inßuence in the post-communist era.31 Nevertheless, the Catholic Church still Þnds itself at the heart of ethnic conßict in Romania for two closely related reasons. First, it is an important institutional force in the large Hungarian minority community centered in Transylvania near the Hungarian border. And Second, the Greek Catholic Church, subject to John Paul II but otherwise institutionally distinct from the Roman rite, is also now in the process of reestablishing its place among the Romanians living in Transylvania.32 Transylvania is a highly contested region.33 Like Southern Slovakia, Transylvania was a part of the Austro-Hungarian empire before the First World War, and was considered, certainly by Hungarians, to be an integral part of Hungary.

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But following the armistice, Transylvania and its large Hungarian population was joined with the areas of the so-called Old Kingdom to form the modern Romanian state. Hitler returned the region to Hungary brießy in the early 1940s, but the allies quickly transferred it back to Romania after the war. As in Slovakia, there remains a large unassimilated Hungarian minority community whose strained relations with the majority population have gained renewed salience following the fall of communism.34 Where the situation in Romania diverges from the situation in southern Slovakia, however, is in the very different way in which religious afÞliation relates to ethnic identity in the two settings. In Slovakia, a majority of both the Slovak and Hungarian population belongs to the same church. In Romania, a majority of the Hungarians are Roman Catholic, while an overwhelming majority of the Romanians belong to the Orthodox Church. What this difference means in practice is that the Roman Catholic Church is much less of an arena of ethnic conßict in Romania than it is in the Slovak Republic. There is a certain degree of resentment among Hungarian Catholics in Transylvania at the extent to which the small Romanian Catholic community exercises disproportionate authority in the national hierarchy. But at the level of local diocesan bishops, parish priests, etc, the Hungarian community is Þrmly in control of Òits own churchÓ in Romania. Religious and ethnic divisions in Romania, in short, are reinforcing rather than cross cutting. As a result, the task of the Roman Catholic Church is not to serve as an agent of reconciliation between Catholics of different ethnic identity, but rather to reach across ethnic and religious lines in search of cooperation with leaders of the Romanian Orthodox Church. And for a number of reasons, this has proved a daunting task. For one thing, the Orthodox Church has been focusing its efforts in recent years on reconnecting itself to Romanian national identity and on reclaiming its central place in Romanian cultural life. Close relations with religious leaders of the Hungarian minority are, to say the least, not consistent with that project. On the other side of the equation, the Hungarian leaders of the Roman Catholic Church in Transylvania have set themselves up as watchdogs of Romanian treatment of the Hungarian minority, and they have shown themselves more than willing to lend their resources and authority to ethnically based protests and grievances.35 It is true that ethnic tensions have eased somewhat over the last couple of years through the creation of a coalition government including both Romanian and Hungarian parties. Nevertheless, the social and political gulf between the two ethnic communities remains a wide one in Romania, and the two churches, Romanian Orthodox and Roman Catholic, remain Þrmly planted on opposite sides of it. A major complication, however, is that the Greek Catholic Church bridges this religio-ethnic gulf between Romanians and Hungarians. The Greek Catholics are ethnic Romanians whose ancestors accepted union with the Pope and

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the Catholic Church in the eighteenth century under pressure from their Austrian rulers. Before World War II, the Greek Catholic Church was a vibrant community of more than 2 million that considered itself the repository of true Romanian national identity and the very embodiment of the Romanian territorial claim on Transylvania.36 The Church was totally dismantled by Stalinist decree in 1948, however, and the Greek Catholic Church of Romania has just now reemerged over the last few years, trying vainly to reclaim its churches and valiantly to rebuild its congregations. The sharpest edge of the problem at the moment is the Romanian Orthodox ChurchÕs refusal to return Greek Catholic property that was seized by the communist government in 1948, and then passed on to the Romanian Orthodox Church. This has caused tremendous resentment within the Greek Catholic community, and rendered relations between Romanian Orthodox and Romanian Greek Catholics very tense. The Greek Catholics, without churches of their own in which to worship, continue to hold Sunday masses in open air city squares throughout Transylvania, in some cases only a few feet away from their pre-1948 churches and cathedrals. This is a troubling issue, both for Romanian politics and for the general state of ecumenical relations between Catholicism and Orthodoxy. But it is not by itself directly relevant to the role of the Catholic Church in ethnic conßict in Romania. What is directly relevant, however, is the degree of cooperation that exists between Romanian Greek Catholics, on the one hand, and Hungarian Roman Catholics, on the other, as both communities struggle under the difÞculties associated with Romanian Orthodox domination. That level of cooperation is by no means nonexistent, but neither is it consistent or unproblematic.37 First of all, Romanian Greek Catholics and Hungarian Roman Catholics are not co-religionists in the same sense that Slovaks and Hungarians in Southern Slovakia are. The Greek and Roman rites in Transylvania have their own bishops and their own churches; they are, in practice, wholly separate religious communities linked only by their shared allegiance to the same Pope. What this means in practice is that there is in Romania much less of the dayto-day friction associated with ethnic competition for institutional resources that one Þnds in Slovakia. What one Þnds instead is a deep strain of basic mistrust that leads the two communities to maintain a kind of wary distance from each other. Greek Catholic leaders, for example, are happy to cite the clandestine support they received from Hungarian Catholics during the communist period. But they are also quick to add that any support they receive now, in relation to their struggle with the Orthodox Church over property, for example, is powerfully limited by the desire on the part of the Hungarian Catholic leaders to imply an exclusive relationship between Catholicism and Hungarian national identity in Transylvania.38 On the other hand, these Hungarian religious leaders view their Greek Catholic counterparts as hard-boiled Romanian nationalists

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with very little interest in drawing closer to Hungarians, Catholic or otherwise.39 The Hungarian Roman community and Romanian Greek community share an allegiance to the Pope and a resentment of the power of the of the Orthodox Church. But the two communities have their own conßicts with each other, both ancient and contemporary, and those conßicts limit the degree to which the Catholic Church, here deÞned in the broadest possible institutional terms, can serve as the foundation for ethnic comity and reconciliation in Romanian Transylvania. There is one other important thing that the Hungarian Roman Church and Romanian Greek Church share, however, and that is the very clear sense that their interests, both individually and collectively, are being sacriÞced by the Vatican in favor of closer ecumenical relations, on a completely separate level of analysis, between Catholicism and Orthodoxy. In the Slovak Republic, the Pope has called for his Church to serve as a basis for ethnic reconciliation between Catholic Slovaks and Catholic Hungarians. In Romania, the Pope has much the same interest: a desire to see Catholics, of all ethnic and religious communities, work together to foster peace within Romania, and in the process to foster RomaniaÕs participation in a post-communist Christian Europe. However, the Pope has another interest in Romania, an interest derived from his vision of himself as a catalyst for fundamentally redrawn relations between the universal Catholic Church and the Orthodox Churches of Eastern Europe, including the Russian Orthodox Church. John Paul II may not be able to heal the great schism of 1054 and reassert his authority over the Orthodox Churches during his pontiÞcate, but it will not be through a lack of attention or effort on his part. He has made Christian unity one of the central themes of his reign, and his desire for closer relations with Orthodoxy has grown more fervent as he has aged.40 The problem for the Catholic communities of Romania is that this papal interest is at least tangential, and at worst antithetical, to their hopes for greater pastoral independence and greater social and political inßuence in Romania. How can the Pope use his international inßuence to improve their conditions, Hungarian and Romanian Catholic leaders in Transylvania ask, when he is expending so much of that inßuence trying to improve his relations with the very forces that are making their conditions so difÞcult in the Þrst place? The tensions associated with this intra-church conßict were revealed with particular clarity when the Pope pointedly left Transylvania off his itinerary during a pastoral visit to Romania in 1999. Throughout this chapter, we have seen how the Vatican has been unable to control fully the emphases and activities of other levels of the transnational Church. We have seen, in other words, how the global vision and interests of the Pope and his curia can be frustrated by the deeply rooted local interests of national hierarchies and national communities. In the Romanian case, we see the exact opposite side of that same phenomenon. In Romania, the interests of

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national hierarchies and national communities are running up against the PopeÕs commitment to a project of institutional and political reconstruction, which reaches in its scope and signiÞcance well beyond the circumstances in Transylvania. This conßict of interest, within and among the various levels of the ChurchÕs hierarchy, not only limits the Catholic ChurchÕs coherence as a transnational institution in Romania. It also serves as an illustrative indicator of the limitations on the unity and coherence of the ChurchÕs activities throughout East Central Europe, and beyond.

V. C ONC LU SIONS I hope it is abundantly clear by now that the Catholic Church is deeply involved in a variety of ways in the post-communist politics of East Central Europe, and that its involvement is fundamentally shaped by the ability of the transnational Church to participate in these politics at almost any level of analysis one cares to focus on. The Pope sets overall priorities from the Vatican, and offers his church as the foundation for a reconstituted Christian Europe. National hierarchies and leading individual bishops advance the institutional and political interests of the Church in particular domestic political contexts. And at the same time those hierarchies and bishops serve at times as leaders and spokesmen for national churches that sit at the heart of ethnic tensions and conßicts. Finally, the Catholic populations of the region, the Vatican CouncilÕs Òpeople of God,Ó serve as the indispensable embodiment of the PopeÕs vision, and as the inevitable barometer of the bishopsÕ inßuence. The ChurchÕs institutional breadth and complexity give it an almost uniquely broad and complex role in the critical process of redeÞning Europe and redrawing its boundaries in the post-cold war era. The analysis I have presented here, however, has also highlighted the tremendous limits that this institutional breadth and complexity place on the coordination and even coherence of the ChurchÕs political activities and interests. In Poland, the Pope, and to a substantial extent the bishops, have a clear notion of their nation, and their Church, as sitting astride the great political and religious divisions of the European continent. They see Poland, therefore, as destined to play a historic role as an exemplar to the secular West and a bridge to the Orthodox East. And they argue that such a role can be played only if Poland retains its distinctive national characterÑits commitment to Catholicism. As I argued above, however, this project requires the cooperation and the commitment of the Polish people. What this means in practice is that the hierarchy of the Church, in Rome and Poland, is going to have to come to terms with the imperatives and processes of modern democracy. It was one thing for Cardinals Wyszyn«ski and Wojty·a to authoritatively represent Òthe Church,Ó when that Church was unable to

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speak for itself. But such a top-down, hierarchical approach simply wonÕt do in a democratic polity. The role of the Church now depends on the commitments and values of the Polish people, and it is there, rather than in negotiations with the state, that the Catholic hierarchy must direct its attention. Triumphalism and aggressive politicking could, in the long run, even lead to the political marginalization of the ChurchÕs leadership. But cultivation of the values and attitudes of individual Catholics, combined with a demonstrated respect for democratic procedure and for institutional separation of Church and State, could, on the other hand, preserve for the Church an important, though clearly less institutionalized, role in the future of Polish politics. These circumstances pose a tremendous challenge for the Pope and for the bishops in Poland. This is not the kind of relationship they are used to having with the Polish people, or for that matter with the Polish state. But given that the future of PolandÕs democracy, and the nature of PolandÕs relationship with the rest of Europe, depend precisely on the relationship between those people and that state, it seems at this point that the Polish bishops, and their patron in the Vatican, have little choice but to embrace these new political circumstances, or at least adapt themselves to them. Ethnic conßict in Romania and the Slovak Republic also pose fundamental challenges for the leaders of the Catholic Church, as well as for the Catholic peoples of these troubled countries. The basic question posed in the Slovak case is whether shared religion trumps divergent nationality. The answer I provided here, rather tentatively to be sure, is that it does not. In part, this is because nationality runs so deep in the Þrst place. But in part it is also because a shared religious institution, like the Catholic Church, can actually turn into an arena of conßict for two national communities bent on competing with each other over scarce resources. Whatever the exact explanation, however, it is clear that any role for the Catholic Church as a basis for Christian unity in postcommunist Europe will have to be predicated on a decrease in the national or nationalist instincts of leaders such as the Slovak bishops. At the moment, such a shift is possible, though by no means certain. The removal of Mr. Meciar from ofÞce is a hopeful sign. But the bishopsÕ rather dismissive response to the grievances brought forward by the Hungarian Catholics under their pastoral care is much less inspiring. It remains to be seen, of course, how this particular situation will develop in the future. But it is worth pointing out, at this moment, a certain irony that lies at the heart of the Slovak circumstances. Part of what has poisoned Slovak relations with the West is precisely these ethnic tensions in southern Slovakia, and the problems they have caused for relations between the Slovak Republic and Hungary. Any role that the Slovak Catholic hierarchy might play in reconciling Slovaks and Hungarians within the Slovak Republic, therefore, will constitute an indirect role in easing SlovakiaÕs Òreturn to Europe.Ó At the same

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time, however, SlovakiaÕs integration with the West, just like PolandÕs, would potentially challenge the social and political role of the Catholic Church among the Slovak people, and in turn, cast further doubt on the ability of the East Central European peoples to preserve their cultural distinctiveness through their Catholicism. The interests of the Church, in other words, just like the institutional structure of the Church, do not always clearly reinforce each other. Perhaps the clearest example examined here of the levels of the Church working at apparent cross purposes is the very complex situation in Romania. For the Pope, of course, a Christian Europe requires rapprochement, and if possible reconciliation, with Orthodoxy. But for the Romanian Greek Catholics and the Hungarian Roman Catholics of Transylvania, Orthodoxy is not a lost brother to be courted, but rather an unfriendly neighbor to be resisted. Relations between Croats and Serbs are a more troubling example of what the gulf between Catholics and Orthodox can mean in practice. But the complex set of religious and national relationships in Romania shows as clearly as any other case does just how difÞcult it is for the Catholic Church to effectively encourage reconciliation and unity. The wounds in Transylvania are historically deep, and currently raw. They will certainly not be healed by papal encyclicals, or by papal summits with Orthodox patriarchs in Bucharest or Moscow. In the end, then, what this analysis reveals most clearly is just how heterogeneous the Catholic Church is, and just how varied a role the Catholic Church plays in the post-communist politics of East Central Europe. At a broader level, however, this analysis also indicates the need for more varied and more complex approaches to the role of transnational religious institutions in international relations after the end of the cold war.41 I argued above that Poland and Slovakia serve as Òmost likelyÓ test cases of the Catholic ChurchÕs role in the regionÕs domestic political processes and ethnic conßicts. In that same spirit, it is possible to view the entire Catholic Church itself as a Òmost likelyÓ test of the degree to which transnational institutions, certainly transnational religious institutions, can cohesively participate in a variety of different political processes. Orthodoxy at its heart is diverse, as are Judaism and Islam. And the leading Protestant denominations, some of which are not really transnational at all, are in some cases quite strongly committed to congregationalism and local autonomy. Such institutional complexity poses very real challenges both to the ability of these other religious communities to offer coherent responses to the particular problems of post-communist Europe and to their ability to apply concretely any responses they do make to speciÞc political settings. Goeckel acknowledges in chapter 16, for example, that the lack of internal cohesion exhibited by some Protestant denominations has rendered them less effective than they might otherwise be in monitoring and mediating post-communist conßict. If any religious community ought to be able to meet these challenges, of course, it

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should be the Catholic Church. As I noted at the very beginning, the Catholic Church is a highly centralized, painstakingly hierarchical institution with a highly public commitment to the protection of human rights and a clearly articulated acceptance of religious freedom. What we have seen in this exploration of the ChurchÕs role in contemporary post-communist politics, however, is that the Church is at least as Polish, as Slovak, and HungarianÑto name just a fewÑas it is Roman. I do not want to discount through these comments the aggressive efforts at unity that have been made in recent years by the Pope and his supporters. I also do not want to overemphasize the particularistic nature of a Church that is still in many ways impressively transnational. Nevertheless, I do think it is important, particularly in the context of this volume and its purposes, that we acknowledge the grave difÞculties that this Pope or any Pope will have in leading his Church to adopt, enforce, or embody a uniÞed, transnational approach to the protection of religious and ethnic minorities in todayÕs Europe. This most highly centralized of transnational Churches is also deeply embedded in many of the national contexts and national conßicts that have so concerned us in the Þrst place.

endnotes 1. Jonathan Kwitny, Man of the Century: The Life and Times of Pope John Paul II 361 (New York: Henry Holt & Company, Inc., 1997). 2. Hansjakob Stehle, Eastern Politics of the Vatican (Athens: Ohio University Press, 1981). 3. Pope John Paul II, Slavum Apostoli, Origins (Washington), July 18, 1985, at 123. 4. George Weigel, The Final Revolution: The Resistance Church and the Collapse of Communism 16 (New York: Oxford University Press, 1992). 5. Carl Bernstein and Marco Politi, His Holiness: John Paul II and the Hidden History of Our Time (Riverdale, MD: Bantam Doubleday Publishing Group, 1996). 6. Kwitny, above n. 1. 7. All of the PopeÕs speeches on this trip are reproduced in LÕOsservatore Romano and are available on the Holy SeeÕs website at www.vatican. va. This particular passage is from a speech given at Gniezno, Poland on June 3, 1997 and appears under the heading, True Unity Must be Based on Gospel 27Ð8. 8. Stephen Engelberg, Pope Calls on Poland to Reject Western EuropeÕs Secular Ways, New York Times (New York), June 8, 1991, at 3. 9. Kwitny, above n. 1, 650. 10. Bernstein and Politi, above n. 5, 496. 11. Sabrina Petra Ramet, The Catholic Church in Czechoslovakia 1948–1991, 24 Studies in Comparative Communism 377Ð93 (1991); Milan J. Reban, The Catholic Church in Czechoslovakia in Pedro Ramet (ed.), Catholicism and Politics in Catholic Societies 142Ð55 (Durham NC: Duke University Press, 1990).

Catholic Church 475 12. Pedro Ramet, Cross and Commissar the Politics of Religion in Eastern Europe and the USSR 67 (Bloomington: Indiana University Press, 1987). 13. Timothy A. Byrnes, The Catholic Church as a Transnational Actor in PostCommunist Europe: The Case of the Hungarian Minorities, 18 The American Review of Politics 161Ð81 (1997). 14. Timothy A Byrnes, The Catholic Church and PolandÕs Return to Europe, 30 East European Quarterly 433, 433Ð48 (1997). Much of the discussion of the Polish case included here is based on the arguments I made in this article. 15. Maryjane Osa, Resistance, Persistence, and Change: The Transformation of the Catholic Church in Poland, 3 Eastern European Politics and Societies 268, 277 (1989). 16. Bogdan Szajkowski, Next to God . . . Poland: Politics and Religion in Contemporary Poland (New York: St. Martins Press, 1983). 17. In fact, Pope John Paul II expressed frustration at the time at what he took to be Wyszyn«skiÕs overly cautious approach to the possibilities presented by Solidarity. Bernstein and Politi, above n. 5, 287Ð8; Kwitny, above n. 1, 372Ð3. 18. Bernstein and Politi, above n. 5, 495. 19. This is not to deny that there are deep divisions within the Polish episcopate and clergy on these politically charged questions. However, these divisions usually pit those who share the PopeÕs vision of a Catholic Poland and those who want to push even further toward some kind of a confessional state. 20. Much of this section will be based on arguments I Þrst presented in Byrnes, above n. 13. 21. Stanislav J. Kirschbaum, A History of Slovakia: The Struggle for Survival 155Ð69 (New York: St. MartinÕs Press, 1995); Bela K. Kiraly and Laszlo Vespremy, Trianon and East Central Europe: Antecedents and Repercussions (New York: Columbia University Press, 1995). 22. Carol Skalnik Leff, National Conflict in Czechoslovakia: The Making and Remaking of a State, 1918Ð1987 (Princeton, New Jersey: Princeton University Press, 1988). 23. Peter Brock, The Slovak National Awakening: an Essay in the Intellectual History of East Central Europe (Toronto: University of Toronto Press, 1976). 24. James Ramon Felak, At the Price of the Republic: HlinkaÕs Slovak PeopleÕs Party, 1929Ð1938 (Pittsburgh: University of Pittsburgh Press, 1994); Yeshayahu Jelinek, The Parish Republic: HlinkaÕs Slovak PeopleÕs Party, 1939Ð1945 (New York: Columbia University Press, 1976). 25. Pope Calls for Tolerance of All Nationalities, BBC Summary of World Broadcasts, August 24, 1991 [italics added]. 26. This quote is from Posolstvo (message): Visit of Pope John Paul II to Slovakia, June 30–July 3 1995, a commemorative volume distributed by the ofÞce of the President of the Slovak Republic. 27. Timothy A. Byrnes, Church and Nation in the Slovak Republic 25 Religion, State & Society 281Ð92 (1997). Much of the discussion of Slovak politics that follows is based on arguments I made in this article.

476 timothy by rne s 28. In fact, the level of coordination was rather limited and grudging, itself not powerful evidence for the efÞcacy of transnational interactions within the church. Byrnes, above n. 13, 167Ð8. 29. The President of the Slovak Bishops Conference told me, for example, that he opposed the Law on the Preservation of the Republic because he Òcan remember how the church was oppressed by similar laws in the recent past.Ó Bishop Rudolf Balaz, interview with author, Banska-Bystrica, Slovak Republic, January 9, 1997. 30. All of these debates are presented and analyzed in greater detail in Byrnes, Church and Nation, above n. 27, 287Ð9. 31. Trond Gilberg, Religion and Nationalism in Romania in Pedro Ramet (ed.), Religion and Nationalism 328Ð51 (Durham, NC: Duke University Press, 1984). 32. Janice Broun, The Catholic Church in Romania in Ramet, above n. 11, 207Ð31. 33. Stephen Fischer-Galati, Twentieth Century Romania (New York: Columbia University Press, 1991); John F Cadzow, Andrew Ludanyi, and Louis Elteto, Transylvania: Roots of Conflict (Kent, Ohio: Kent St. University Press, 1983). 34. Tom Gallagher, Romania after Ceausescu: The Politice of Intolerance (Edinburgh: Edinburgh University Press, 1995). 35. This is not to suggest that the Roman Catholic Church is the only, or even most important, religious institution defending the rights of Hungarians in Romania. In fact the most prominent spokesman for Hungarian rights in Romania is a Protestant clergyman, Bishop Laszlo Tokes. See ibid. 180Ð4. 36. James S. Niessen, The Greek Catholic Church and the Romanian Nation in Transylvania in John Paul Himka, James T. Flynn, and James P. Niessen (eds.), Religious Compromise, Political Salvation: The Greek Catholic Church and Nation-Building in Eastern Europe 47Ð68 (Pittsburgh: University of Pittsburgh, 993). 37. What follows is also based on arguments Þrst developed in Byrnes, Catholic Church as Transnational Actor, above n. 13, 171Ð6. 38. This commonly held view was expressed with particular vehemence by Reverend Tertulian Langa, former Vicar General, Greek Catholic Diocese of Cluj-Gherla. Interview with author, Cluj-Napoca, Romania, June 6, 1997. 39. Reverend Arpad Czirjak, Vicar General, Roman Catholic Archdiocese of Alba Iulia, put it this way: ÒThe Greek Catholic Church is very, very, very nationalistic. It needs to demonstrate its loyalty to the nation. . . . In this atmosphere, the Greek Catholic Church will not be able to express loyalty to the Hungarian minority because it would be seen as traitorous.Ó Interview with author, Cluj-Napoca, Romania, June 10, 1997. 40. In an encyclical letter written in 1995, Pope John Paul II called better relations with the Orthodox Churches Òone of the pastoral priorities of my pontiÞcate.Ó Encyclical Letter Ut Unum Sint, reproduced at www.vatican. va 32. 41. An excellent start toward such a literature is Susanne Hoeber Rudolph and James Piscatori, Transnational Religion and Fading States (Boulder, CO: Westview Press, 1997).

Chapter 16 a m e r i c a n ch u r ch a dv oc a c y o f r e l i g i o u s r i g h t s i n e a st ge r m a ny : t h e l e g a c y o f t h e p a s t f or t h e p r e s e n t Robert Goeckel

The clash of civilizations debate has highlighted anew the role of religion as a cultural factor, but religion usually takes organized form and these organizations, or churches, often become transnational actors in the process of their development. Like all transnational actors, churches thus have an organizational and ideological interest in international contacts. They are vehicles of interactions, involved in “the movement of tangible and intangible items across state boundaries,” but like multinational corporations they also seek to influence the foreign policies of the states themselves and may even pursue their own foreign policies.1 Yet churches straddle the divide between transnational and national. With its hierarchical structure centered in the Vatican, the Catholic Church certainly represents a more coherent transnational actor than the loosely organized Protestant and Orthodox churches. However even the Catholic Church has subunits organized along national lines, which are sometimes the focus of tensions both internally and with the Vatican, as Byrnes has demonstrated in the preceding chapter. Although, given their origins in political-religious rebellion against Rome, the Protestant churches have naturally reflected the weight of the national over the transnational, in the contemporary era. Yet in the contemporary era they have sought to overcome national and confessional particularism by creating nongovernmental international organizations (NGIOs) to foster

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both greater cross-national cooperation (e.g. the Lutheran World Federation, LWF) and greater interconfessional cooperation (e.g. World Council of Churches, WCC). Like all transnational actors, religious NGIOs seek to obtain and retain access to their subunits across state boundaries in order to influence the outcomes in those subunits. This issue of access is more important for the Catholic Church, in which key theological and personnel matters are decided centrally, than for the nationally based Protestant NGIOs. As Huntington has argued, control over access is a key lever by which states can defend sovereignty.2 Given their jealous defense of sovereignty, particularly toward a belief system antithetical to their atheistic ideology, Communist regimes initially impeded such access in order to limit NGIO influence on outcomes.3 Nonetheless, such NGIOs later became attractive to Soviet bloc regimes as molders of world public opinion and Western policy, for which they conceded access to their otherwise closed systems. Employing archival evidence, my essay will address the role of Western churches during the late Communist period, focusing largely on the Lutheranbased organizations and East Germany. Among the questions I shall address are: What tradeoffs between access and influence did the Soviet bloc regimes make in dealing with the churches? What were the motives and goals of the churches? To what extent did the Communist regimes use them to influence the West? How unified were the Western churches as actors in approaching the regimes? Finally, I will discuss the implications of this past relationship for the current relationship between these NGIOs and the churches in Eastern Europe. I shall argue that, despite the revolutionary nature of the collapse of communism, the legacy of past NGIO relations with these churches affects their current relations. After being denied access to the East during much of the 1940s and 1950s, such access to their institutional partners became the highest priority for the Western church organizations. The NGIOs were not unified actors in their relations with the East, particularly exhibiting divergences between the two churches dominant in the NGIOs, namely the German and American Lutherans. In the case of the German churches, this access was motivated by a strong interest in their fellow Germans; in the case of the Americans, domestic politics colored the agenda. The credibility of the Western churches with their Eastern partners was tarnished by these particularistic interests. Although NGIO activity benefited the official churches in the East bloc by giving them bargaining chips in their relationships with their respective regimes, it came at the expense of unofficial churches and so-called sects from which the mainline Western churches distanced themselves. The institutional focus and the substance of the Western churches’ Eastern policy thus reduces the effectiveness of appeals for religious toleration and separation of church and

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state and makes them inclined to support restoration of traditional churches in the post-Communist period.4

I. AC C ESS The Communist states curtailed access by religious NGIOs, particularly in the Stalinist period. Viewing the organizations as an Anglo-American conspiracy, the Soviet regime forbade bloc churches to join the WCC and LWF in 1948, despite participation in ecumenical contacts in the interwar period.5 Seeking to blunt rising Catholic influence under John XXIII, the regime reversed course in 1960 and permitted membership by East bloc churches in the WCC and LWF in 1962, while seeking to control and manage this access.6 Western churches sought to increase the contacts, particularly after the detente process began. In their effort to sustain their newly achieved access, the Western churches highlighted issues that blurred the ideological divide between East and West. For example, the Program to Combat Racism, introduced by the WCC in 1971, focused attention on Southern Africa and was given a Marxist accent in order to win favor from East bloc governments and justify the assignment of church officials from the Soviet bloc to Geneva.7 In order to gain German Democratic Republic (GDR) approval of a high-level LWF meeting proposed for Eisenach in 1973, U.S. church officials opposed criticism of the GDR and lent strong support to the Basic Treaty between the two Germanies and the Council for Security and Cooperation in Europe (CSCE) conference.8 By 1978 the National Council of Churches in the U.S. was engaged in a dialogue on the arms race with the GDR churches, with the American side highlighting such issues as the Third World, the “military-industrial-complex,” and “peace education.” In the case of the GDR, this priority on access led to considerable intramural bargaining among Western churches. The four-power status of Berlin had long given the Americans privileged access to the GDR Thus the LWF designated a senior representative to Berlin who played a key role in liaison between the East and West German churches. Particularly during the GDR’s campaign for delimitation from the Federal Republic of Germany (FRG.) in the 1960s, the German churches insisted on retaining American staffing of the position under the aegis of the LWF, without the direct links to the West German churches which might have raised the hackles of the GDR regime. Even after the West German churches gained greater direct access to the GDR churches under detente, they lobbied to retain the LWF-authorized official.9 For their part, the U.S. churches transformed the German preferences into bargaining power, persuading the West German churches to assume a larger portion of costs of this position. Church documents confirm that Western church leaders sought to avoid

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incidents and criticism that might have endangered access. For example, American Lutheran officials covered up a suicide attempt by an East German theologian and evaluated the granting of an American award for a GDR bishop on the basis of its effect on his standing at home.10 The downplaying of criticism of human rights was to become standard operating procedure by the Western churches. That this stance could neither obscure the reality of abuses of human rights, nor silence the Western critics in the churches was amply demonstrated at the 1975 WCC General Assembly in Nairobi: grassroots dissenters in the Russian Orthodox Church made a direct appeal to the WCC, but the WCC dampened any criticism after the Russian Orthodox threatened to withdraw from the WCC. In their approach to the Helsinki process, Western churches emphasized access and institutional ties as the standard to measure progress in human rights in the Soviet bloc.11

II . PEAC E AND HU MAN RIGHTS IN THE 1980s The renewed tension in East-West relations in the late 1970s tested the church relationships as well. In the context of this “new cold war,” the Western churches were caught between the East bloc churches calling for disarmament and an American public fearful of the Soviet threat and supportive of an arms buildup. As a result, the Western churches advocated measures for peace and downplayed human rights as an issue. The LWF increasingly advocated peace as a priority. For example, at EastWest consultations in 1981, it urged a freeze on nuclear testing and supported the Stockholm proposals for a nuclear-free zone in central Europe. In 1984 it decried the alleged overemphasis on national security.12 The German churches increasingly lobbied the American churches in an effort to promote their positions on disarmament and peace, both bilaterally and within the LWF/WCC context. For example, both the GDR and West German churches sent high-level delegations to the U.S. in 1981 in an effort to influence U.S. policymakers and elite opinion. Playing on their increased international profile, the GDR churches gained access to American decisionmakers, such as Vice-President Mondale.13 Fearful of the arms buildup in Europe, but also worried about this new GDR-American track, the West German delegation sought to influence the American policymakers also. Certainly American church officials were influenced by the German position. For example, a leading Lutheran official repeatedly lobbied the Reagan administration on behalf of peace and disarmament in Europe and in opposition to the MX missile and the war in El Salvador.14 Peace was underscored as a key theme in the increased exchanges with East bloc churches in the early 1980s. When issues of human rights arose—for example, in the context of the

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periodic Helsinki followup conferences—the LWF highlighted the progress in the treatment of the official churches in the East bloc, downplaying the continuing repression of religious dissenters and sects. For the 1977 Belgrade followup conference, the LWF criticized the clandestine activity of “missions to the East” for “ignoring mainstream churches,” their “clear political overtones” and “open advocacy of violation of existing laws,” charging them with a “thoroughly distorted understanding of socialist societies.”15 In his briefing prior to the 1981 Madrid follow-up conference, the former president of the LWF, Risto Lehtonen, evaluated the status of religious freedom in positive terms and criticized the U.S. handling of the issue since Belgrade as “one-sided” and “biased.” The American churches used his briefing to lobby the American delegation at Madrid in an effort to downplay the criticism of religious freedom in the East bloc.16 To be sure, the churches did raise cases of individual religious dissidents in their dealings with Western and Soviet bloc governments. For example, in the case of several Estonians arrested in 1981, a leading American Lutheran official asked the American delegation to raise the case with Soviet representatives at Madrid. But such appeals were usually limited to quiet diplomacy on behalf of clearly religious dissenters and official churches; nonreligious dissenters or members of sects received less support.17 Given this orientation—vocal advocacy of peace and disarmament in public, mild advocacy of human rights in private—it is little wonder that the churches and their NGIOs were increasingly on the defensive, particularly given the conservative shift in U.S. public opinion and the Congress. While a leading Lutheran official claimed in 1985 congressional hearings that the Russian Orthodox Church was not a tool of Soviet foreign policy, others testified that the LWF and NCC were “duped by the Russians.”18

III. PROJEC TION AND PERCEPTION The credibility gap of the Western churches was compounded by the nature of their perception of the East bloc churches and their projection of domestic agendas onto the relationship with those churches. Put simply, the Western church officials were sympathetic to churches advocating “church in socialism” (GDR) and “political diakonie” (Hungary) because they offered an alternative vision to that found in “real existing liberal democracy.” Paul Wee, the leading American Lutheran official dealing with the East, epitomized this orientation. Wee’s description of the GDR church in 1972 is suggestive: an anti-Nazi church, living in socialism, advocating critical solidarity with the GDR, not a martyr church, engaged in a Marxist-Christian dialogue.19 For Wee the general sociological process of secularization posed more serious

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challenges to the GDR churches than the strictures of the Communist regime.20 Later he hailed the United Evangelical Church—proposed in the GDR in 1979 but never realized—as a model for the U.S. and West German churches.21 At another point he urged the elimination of “the semantic elements of the Cold War.” Like many involved in church diplomacy with the East, he glossed over the reality, particularly of the East European churches. Moreover, they were compared favorably with both the West German churches and the “underground”/martyr churches in the East bloc. In his idealization of the GDR churches, Wee seems to have been influenced by the events of 1968, as suggested by his praise of theologian Helmut Gollwitzer’s eulogy for left-wing activist Rudi Dutschke in 1980.22 At the same time, Wee seemed to use the budding relationship with the GDR churches to pursue domestic-based agendas. For example, a visit by a GDR church delegation was employed as a vehicle for promoting reconciliation between the U.S. and Vietnam. Having a black female study theology on exchange at the Karl-Marx-University in Leipzig was an opportunity to equate the gains made by the civil rights movements and women’s liberation movement for black Americans and women, respectively, with those made by the GDR churches.23 The relations with East bloc churches were being used as vehicles for dealing with issues in American society and churches, such as race, gender, and war. Doubtless the East Germans gained a better appreciation of American society as a result, but likely also learned how the relationship could be instrumentalized. Moreover, the documentary record suggests that there was considerable intramural friction among the American churches. For example, the United Church of Christ established formal communion with the East German churches in 1981, provoking Lutheran skepticism of this alleged “top-down decision.”24 When the National Council of Churches appointed a special Berlinbased liaison with the GDR churches, the Lutherans criticized the lack of consultation. Most significantly, the Lutherans themselves were hardly united: efforts by the Lutheran Church-Missouri Synod to aid the “free churches” (Baptists, Methodists) in the GDR were rebuffed by Wee.25 The elected American bishops were also more conservative than Wee regarding arms control and peace issues. On the other hand, despite their enthusiastic public rhetoric, Western church leaders seemed to be in fact more skeptical of the actual conditions in the East bloc churches. In his 1980 oral history of his role, Wee describes an East German church very different from that suggested in his earlier report discussed above.26 He indicts several GDR bishops for their close ties to the regime and abuse of privileges. He describes the system of buying out prisoners from the GDR using the diaconical organization as a front for the West German government. He illuminates the role of the Stasi and his own self-conception as

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pragmatic deal-maker with the regime. Altogether he presents a less-idealized picture of the GDR and its churches. This vignette of a leading American official suggests a rather mixed picture of Western church leaders active in NGIOs: at the same time self-interestedly pursuing domestic agendas, posturing appropriately for international audiences in the East, yet privately cynical regarding East bloc partners.

IV. TRANSATLANTIC ASYMMETRIES The relations with the Eastern churches also revealed increasing dissonance between the American and German churches, the two most powerful members in the NGIOs. Even before detente, the German churches’ Eastern ties were heavily infused with political purpose. For example, the visit of an Evangelical Church in Germany (EKD) delegation to the Russian Orthodox Church in 1954, led by Martin Niemoeller, was an effort to raise the issue of Germans in the USSR.27 Despite this nationalistic goal, the Soviets were willing to entertain such EKD initiatives in hopes of thereby influencing FRG policy toward NATO. The German churches were in fact more interested in establishing contact with their co-nationals, namely Germans resettled during World War II to Siberia and Central Asia, than in the co-religionists, the Lutherans, in the Baltic republics. The LWF became an important vehicle for the German churches during the late 1970s/early 1980s, for example supporting the work of the Latvian pastor permitted to minister to the resettled Germans and eventually establishing direct contact with these populations. With detente, the divergence between the American and German churches widened. The American churches tended to shift their focus away from Europe, whereas the German churches became more independent and assertive in international organizations. A manifestation of this was the insistence by the Americans on greater accountability regarding American funds transferred via the LWF to the GDR churches; the German churches balked at this, fearing disgruntlement among East German recipients of aid and wishing in any case to maintain a low profile for such Western aid.28 American Lutherans increasingly perceived the LWF as a German-dominated institution and criticized the “paternalism of the West German churches” toward the GDR churches and the German churches’ stance on Namibia and South Africa.29 The U.S. churches likely perceived the new relations with East European churches as a means of offsetting the heightened West German power and assertiveness.30 Leadership issues in the NGIOs, such as the selection of a new general secretary and president of the LWF in 1984, divided the German and American churches.31 Despite the greater divergence of interests and attention level, both German and American churches shared the view—each for its own reasons— that quiet diplomacy was preferable.

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V. IMPLIC ATIONS FOR THE POST-C OMMU N IST SETTING The collapse of communism has altered considerably the role of the religious NGIOs. Once prohibited or managed as part of a foreign policy strategy by Communist regimes jealous of sovereignty, access to member churches in Eastern Europe is now largely unhindered. Wider access has benefited the hierarchical Catholic Church more than the nationally based Protestant NGIOs, but as other contributors discuss, the nontraditional religions have benefited even more. The governments have sacrificed considerable sovereignty as a result. The influence of these transnational actors in world public opinion is reduced by comparison with the Cold war period, when they weighed in on important items on the East-West agenda. Their resulting leverage in relations with the East bloc regimes and churches is consequently gone. In terms of the focus of this study in particular, the GDR model—the object of great attention by the West German and American churches—is now bankrupt. Nor are the national churches in need of such external strengthening. These institutions now operate in a weak institutional landscape of new parties, weakly defined roles for legislative and executive bodies, often discredited bureaucratic and coercive apparatuses, and underdeveloped civil society. In this vacuum, the churches often represent one of the few institutions enjoying credibility among the populace. As a result many national churches exert heightened influence and governments have accommodated their often conservative cultural orientation. The Russian Orthodox Church and Polish Catholic Church are the best examples of this restorationist tendency. On the other hand, the NGIOs might be useful to minority churches, potential victims of the new alliance of throne and altar involving the national churches. Indeed, as other contributors to this volume have concluded, some post-Communist governments have sought to increase the barriers to access, particularly in the cases of nontraditional religions. But the record during the communist period of the NGIOs under consideration in this paper has reduced their effectiveness in preventing this development. Their focus on institutional relations with national churches has left them less inclined to advocate the rights of minority religions. For example, the institutional ties between the EKD and the Russian Orthodox Church during the Communist period have continued, but have taken the new form of the assistance offered by the EKD to the Russian Orthodox Church in dealing with sects. Moreover, the political agenda of the major Western churches I have discussed—namely the national agenda of the German churches and the leftist one of the American churches—has eroded their credibility with the churches in Eastern Europe in the postCommunist setting. In several settings a re-Catholicization process can be detected in Lutheran churches in the region. For example, the rejection of ordi-

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nation of women by the Latvian Lutheran church, in the face of heavy criticism from Western churches and the LWF, provides a telling example not only of cultural conservatism in the former East bloc churches, but also of the reduced influence of the NGIOs. Having achieved church reunification in Germany, the German churches have continued their national agenda with their support for the Lutheran Church in Russia.32 In addition the credibility of the Western NGIOs has been weakened by differences of interest and perspective among their members. As my discussion of U.S.-German divergences after detente has indicated, the NGIOs were hardly unified actors even during the Cold war; its end has further strained their coherence as transnational actors. This lack of coherence has left them less effective in limiting conflict in the post-Cold war period. The WCC, for example, was unable to prevent the bitter dispute between rival Orthodox churches in Estonia, both members of the WCC.33 Like the Catholic Church, national subunits have not been able to avoid the power of ethnicity and nationalism. The WCC and LWF, however, are less able than the Catholic Church to act as a rational transnational actor, due to the threat of withdrawal by member churches (e.g. the increased pressure in the Russian Orthodox Church against ecumenism) and the asymmetries of financial power among member churches (e.g. increased clout of the German churches). Thus the past weighs heavily on the present role of the NGIOs under study. The compromises made then to retain access, the priority on institutional ties, and the particularistic interests of the major churches leave them now at a disadvantage in influencing the dramatically new public agenda. The Catholic Church is less burdened by the past, but the end of the Cold war has reduced its coherence, even as it has eased access to national subunits. Given the limitations of the religious transnational actors, it becomes all the more important that secular human rights organizations highlight religious freedom in their monitoring and advocacy efforts.

endnotes 1. Robert O. Keohane and Joseph S. Nye, Transnational Relations and World Politics xii (Cambridge: Harvard University Press, 1971); Joseph S. Nye, Multinational Corporations in World Politics, 3 Foreign Affairs 153–75 (1974). 2. Samuel P. Huntington, Transnational Organizations in World Politics, 25 World Politics 333–68 (1973). 3. Impeding such access has been the motive of Communist initiatives to create “national Catholic churches” analogous to Protestant ones, initiatives which were stillborn in the Soviet case but apparently successful in China. 4. Much of the following analysis draws heavily upon archival material from the Archive of the Evangelical Lutheran Church in America (ELCA), hereafter cited as ELCA Archive. I wish to express my thanks to the archival staff there for their assistance

486 r o be rt goe cke l in my research. Other archives used include State Archive of the Russian Federation (GARF), Estonian State Archive, Lithuanian State Archive, and various archives of the former GDR. 5. According to the chairs of the Moscow Councils on Affairs of the Russian Orthodox Church and Affairs of Religious Cults in 1948, “the ecumenical movement, begun at the initiative of the Anglican Church, in the current period is being used by Anglo-American reactionaries in the interest of their imperialistic policy. . . .” Letter n. 616c—y/160c (July 24, 1948), Karpov and Polyanski to Kivi and Karsakov (plenipotentiaries in Estonia), Estonian State Archive, fond R-1989, opis 2, delo 8, listi 129– 129r, as cited in Robert F. Goeckel, In the Shadow of the Russian Orthodox Church: Ecumenical Ties of the Baltic Churches, paper presented at the Seventh Berlin Colloquium of the Institute for Comparative Church-State Research, May 25–27, 1998, 4–6. The East German churches represented an exception, since they were constitutive members of the WCC and LWF as part of the Evangelical Church in Germany (EKD), though the Berlin Wall and GDR policy resulted in curtailed access from 1961 until 1969, when the East German churches formally seceded from the EKD. 6. The August 1960 CPSU Central Committee decision is indicated in Letter n. 11–83c (September 6, 1960), Puzin (Chair of the Council on Affairs of Religious Cults) to Veiderpass (Estonian plenipotentiary), Estonian State Archive, fond R-1989, opis 2, delo 26, list 118. The Soviet fear of the planned Vatican council is revealed as the motive for the opening to the WCC/LWF, in N. 1–70c (March 31, 1959), Puzin (Chair of the Council for Affairs of Religious Cults) to Rugenis (plenipotentiary in Lithuania), Lithuanian State Archive, fond 181, opis 3, delo 53, listi 35–36. 7. E.g., Johannes Althausen and Elisabeth Adler were delegated to the WCC in Geneva by the GDR churches. In his “Theses on Missions in the GDR,” Althausen writes of the “justified challenge of Marxism to missions,” and “strictly rejects missions as a form of colonialism” and praises the PCR as a “conscious attempt at reorientation.” Letter, Althausen to Wee, February 6, 1973, ELCA Archive, 87–1010, 20/51. The PCR was never very popular with grassroots parishioners in the GDR, as indicated in reduced financial contributions to the Bread for the World collections. See also Gerhard Besier, The World Council of Churches ‘Programme to Combat Racism, the African Peoples’ Republics and the German Churches, 9 Kirchliche Zeitgeschichte 251– 306 (1996). 8. In his confidential report preparing this Executive Committee meeting, Paul Wee counseled against “the making of direct negative statements” [regarding the GDR state and society] and hailed the GDR’s “social, economic and political achievements during the postwar years” and its “legitimate right to keep out questionable Western influence.” Wee, “Report on Recent Developments . . . ,” no date, ELCA Archive, 87–1010, 20/51. In Wee to Carl Mau (General Secretary, LWF), February 11, 1973, he wrote: “I can only imagine negative feedback if the Executive Committee meeting gets the GDR into hot water on questions of human rights.” ELCA Archive 87–1010, 17/51. 9. Concerns that the senior representative might be too closely tied in official terms to the West German churches were expressed particularly by the GDR churches, in Wee to Empie (General Secretary, U.S.A National Committee of the LWF), March

Religious Rights in East Germany 487 16, 1970 and Bruno Muentzelfeldt (LWF) to Gottfried Klapper (German National Committee of the LWF), December 8, 1967, ELCA Archive, 87–1010, 16/51. Proposals by the American churches to replace the American with a neutral Scandinavian pastor were rejected by the German churches, due to the Americans’ preferential treatment in Berlin under the wartime agreements. The West German churches assumed the bulk of the funding for the position, after U.S. reluctance to continue it, according to Klapper to Muentzelfeldt, January 26, 1968. 10. Wee weighed whether a Roosevelt Award for Freedom of Worship to East German church leaders would affect their political status at home, in Wee to May, January 27, 1984, ELCA Archive, 91–06, 3/5. In another case, the planned semester-long exchange of an American theology professor to the GDR was curtailed to a lecture series instead, preserving some access at the expense of acrimony between the professor and the U.S. Lutheran officials. “The LWF in 1972,” ELCA Archive 87–1010, 17/51. 11. Darrel Hudson, The World Council of Churches in International Affairs 286–7 (1977); Robert F. Goeckel, The Lutheran Church and the East German State 219 (Ithaca, New York: Cornell University Press, 1990). 12. “Report, Lutheran Church Leaders’ Conference, July 7–8, 1981,” ELCA Archive 87–1056, 1/3; Memorandum, Martin Sovik (Office of Governmental Affairs, Lutheran Church in the U.S.A), November 30, 1984, regarding LWF Consultation on Church and the Ideology of National Security, November 19–23, 1984, ELCA Archive 87–1056, 1/3. 13. Arguing that the “one and a half million member VELKDDR represents a counterweight to Moscow-oriented policy of the GDR government,” Paul Wee, the key American official dealing with the German Lutherans, arranged a meeting between the GDR delegation and Vice-President Walter Mondale. Wee, “Notes to File,” April 2, 1980, ELCA Archive, 87–1010, 20/51. On the German motivation for the highlevel exchanges between the U.S. and West German churches, see Heinz-Joachim Held, “Memorandum zur Besuchsreise zur lutherischen und anderen Kirchen in den U.S.A in Ma¨rz 1981,” no date, ELCA Archive, 87–1010, 18/51. 14. Wee to President Ronald Reagan, July 15, 1983; Wee to Attorney General Edwin Meese, November 16, 1983; Wee to Senator Arlen Specter, March 19, 1985, ELCA Archive, 87–1056, 1/3 on El Salvador, etc. 15. Memorandum, LWF to Member Churches in Europe, U.S. and Canada Regarding Lutheran Churches and CSCE, October 4, 1977, ELCA Archive, 87–1056, 1/ 3. This official position by the LWF underscored improvements in the institutional churches in the Soviet bloc and distanced itself from the unofficial Christian groups. 16. Memorandum, Lehtonnen to David Preus (President of ALC and member of U.S. delegation to Madrid), November 4, 1980. American church officials used the briefing in lobbying the U.S. delegation, but eliminated criticism of the U.S. and language attempting to “contexualize” the Soviet crackdowns in Poland, etc. See Edward May (Director, Office of World Community, U.S.A. National Committee of LWF) to Max Kampelman (delegation head), November 7, 1980, ELCA Archive, 87– 1056, 2/3. The fact that the LWF issued a formal statement on religious rights for the 1977 conference, but only an informal internal briefing for the 1981 conference, suggests the lack of consensus in the LWF on the issue of human rights in the East-West context.

488 r o be rt goe cke l 17. Wee raised the case of imprisoned Estonians (Juri Kukk, Tiit Padam) and Raoul Wallenberg with Kampelman and the LWF, respectively. Wee to Preus, et al, July 7, 1981 and Wee to Dahlgren, December 15, 1983, and Wee to Staalsett, November 1, 1985, ELCA Archive, 87–1056, 2/3 and 3/3. 18. Arne Sovik to Wee, et al., November 19, 1985, ELCA Archive, 87–1056, 3/3. 19. Wee to Empie, Ascension Day, 1972, ELCA Archive, 87–1010, 19/51. 20. In his Oral History, Wee maintains that “secularism more than communism is a problem for the church.” ELCA Archive, Paul Wee Oral History, Lutheran Church/ U.S.A, 1980, 26. 21. Wee, “Random Notes on Church and Society in the GDR,” April 16, 1980, ELCA Archive 87–1010, 20/51. 22. Wee to Helmut Gollwitzer, February 6, 1980, ELCA Archive, 87–1010, 18/51. 23. In a letter to Phyllis James, Wee praises Martin Luther King and sees something “providential in the presence of a liberated black woman from the Christian community in the U.S. studying theology in Leipzig, GDR.” Wee to James, January 15, 1983, ELCA Archive, 87–1010, 18/51. The NCC and Lutherans were interested in East German church assistance to Vietnam and Cambodia, using the state as a vehicle, in Wee, “Notes to the File,” April 21, 1980. 24. ELCA Archive, 87–1010, 20/51. On Lutheran disgruntlement with the NCC, see Wee to Zorn, December 19, 1977, ELCA Archive 87–1010, 19/51. 25. Martin Poch (Secretary, World Relief, Lutheran Church—Missouri Synod) to Wee, November 8, 1972, proposing cooperation of the Missouri Synod with the LWF; Wee to Poch, November 21, 1972, rejecting such cooperation. ELCA Archive, 87–1010, 17/51. In his rebuff to the Missouri Synod’s proposal, Wee argued that the GDR already was giving them official assistance “for its questionable purposes,” thereby implying the priority on the institutional tie to the mainline GDR churches. See Wee to Mau, April 2, 1973, ELCA Archive, 87–1010, 119/51. 26. Wee Oral History, above n. 20, 27–9, 30–2, 25, 11–17 on bishops, the Stasi, and his strategy. 27. The Soviets’ perception of EKD-ROC exchange in these terms is elaborated in Memorandum, Polyanski (Chair, Council of Affairs of Religious Cults) to CC-CPSU and the Council of Ministers of the USSR (May 30, 1956), Lithuanian State Archive, fond R-181, opis 3, delo 47, listi 30–31. 28. Paul Empie (U.S. National Committee, LWF) to Muentzelfeldt (LWF), December 19, 1967, ELCA Archive, 87–1010, 16/57. The General Secretary of the LWF, Carl Mau, in fact encouraged the American insistence on greater glasnost in the Germany-East Programme in order to put pressure on the West German churches. 29. For an extensive discussion of U.S.-German church tensions in the late Cold War, see Robert F. Goeckel, U.S.-German Church Relations, 1968–1990: Changes in Actors, Priorities, and Power Relations in Detlef Junker (ed.), Germany and the United States in the Era of the Cold War, 1945–1990: A Handbook (New York/Munich: Cambridge University Press/Oldenbourg Verlag, 1998). Wee described the LWF as “a European institution with many decisions being made between Geneva and Hannover.” Wee, “Notes to File,” December 1982, ELCA 87–1010, 18/51. The LWF suspended the Lutheran churches in South Africa, whereas the EKD continued

Religious Rights in East Germany 489 ties to them. See Heinz-Joachim Held (President, EKD Foreign Office) to Wee, July 8, 1983, ELCA Archive, 91–06, 2/5. 30. Wee greeted the split in the EKD which resulted from the creation of a separate East German church federation, seeing this as permitting the East Germans to “better able go about their witness” and concluding that “nothing essential to Christian faith would seem to have been compromised.” Wee to Empie, January 24, 1969, ELCA Archive, 87–1010, 17/51. 31. The executive secretary of the German National Committee of the LWF, Christian Krause, blamed Paul Wee and the North Americans for undermining his bid for position of general secretary, which went instead to a Norwegian, Gunnar Staalsett. Wee to Krause, January 2, 1985; Krause to Wee, January 16, 1985; Wee to Krause, February 14, 1985, ELCA Archive, 91–06, 2/5. 32. Regarding the Latvian controversy, see Gerd Stricker, Umstrittene Frauenordination, 21 Glaube in der 2. Welt 20–4 (1993). The German churches have supported the largely ethnically German Lutheran Church in Russia financially and with personnel, paralleling official German government policy to diminish the incentive for German Russians to emigrate to the FRG by supporting cultural organizations for them in the former USSR. See Gerd Stricker, Vielfa¨ltiger Neubeginn, 22 Glaube in der 2. Welt 33–43 (1994). 33. Two Orthodox groups—one based on the exile church and loyal to the Ecumenical Patriarch in Istanbul, the other owing allegiance to the Moscow Patriarchate— are competing for legal success (including property rights) to the pre-Communist Estonian Apostolic Orthodox Church. See Joan Lofgren, The Churches in Estonia: Reconciliation in the Shadow of the Past (forthcoming); Gerd Stricker, Zweites und drittes Rom im Widerstreit, 24 Glaube in der 2. Welt 17–24.

Chapter 17 ca t h ol i c -j e w i s h di a l o g u e i n p o l a n d : a di f fic u l t r oa d t o t o l e r a n c e Stanisław Krajewski

My topic is dialogue and since there is no such thing as an abstract dialogue— because specific conditions and experiences of the dialogue participants constitute essential ingredients of the dialogue relationship—let me say something about myself, and my particular point of departure. To be a Polish Jew living in Poland today is to differ from most Polish Jews who live elsewhere and are Polish only because of their origins. Many of us are Polish Polish Jews, that is Polish Jews who live in Poland and treat Poland as our space and not just a place of origin. When I say “our” I refer to belonging, familiarity, connection, value, and meaning. My development, similar to that of a number of other similar Poles, represents the reversal of the earlier stories well-known from history. While in the nineteenth century and the first half of the twentieth century more and more Jews assimilated to the majority culture, aspired to rootedness in it, and were losing their Jewish commitments, people in Poland like me have been regaining the Jewish identity and knowledge that our parents did not pass on to us. We do not need to aspire to being Polish, because we have been raised Polish. All the complexities of Polish culture are completely familiar to us (this was also the case with many of our parents and even grandparents); and they are ours. What was given to children has become our element. At the same time we are Jewish. We have been regaining active Jewishness

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and Jewish traditions. To some this means observance, sometimes of Orthodox variety, to others, cultural participation in holidays or Jewish events. To still others, it means cultural connection, contacts with Israel, etc. What is common to all of us is a need. It is the need for a normal Jewish existence in Poland, despite the legacy of the Shoah (the Holocaust), despite the history of antiSemitism, despite our small number. There are, say, five thousand affiliated Jews, and several times more Poles with Jewish roots, who have never been in touch with Jewish institutions. (Recall that in prewar Poland there were 3.5 million Jews.) We can be, indeed, I believe that we are, as much Polish and Jewish as English Jews are English and Jewish.

I. C HRISTIAN-JEWISH VERSUS POLISH-JEWISH DIALOGUE Speaking about Christian-Jewish dialogue in Poland, people often use the term “Polish-Jewish” dialogue. This is understandable from a foreign perspective. For foreign Jews, even if they are of Polish origin, basically Poles are Christian, which would mean that Jews are not Poles. This fac¸on de parler was also common in prewar Poland, when Polonized Jews were a minority among Jews, and only minorities on both sides accepted the idea that one can be both Jewish and Polish. This has gradually changed after the war, and now—let me repeat— most of us are Polish. Interestingly enough, new language has not been introduced, and often the terminology “Poles and Jews” is still used in Poland. I find it mistaken. The fact is, however, that the terminology “Christians and Jews” that I prefer to use is not perfect either. It leaves out those Poles who are not really Christian—and are not Jewish either. How serious is it? Perhaps not too much: going back one or two generations we almost always have clear group identification, so virtually everyone is “Jewish by origin” or “Christian by origin.” Two problems arise here: first, the matter of mixed origins, second, the problem of the nature of the Jewish community. Many of us are of mixed parentage. This has implications for the identity issue—which is a complex topic discussed at length by many authors. It is clear that the coexistence of Jewish and non-Jewish Polish roots in one person makes one even more a Polish Jew. There exists also a very important consequence of this situation for Christian-Jewish dialogue proper. I believe that ChristianJewish dialogue can be properly conducted on both sides only by people with strong, secure identities. It is not a place for identity seekers. Or rather, while the seekers can be extremely valuable in dialogue, they cannot be the main actors. There would be too much confusion otherwise. The second problem can be reduced to the question: What sort of a minority are we? I believe that we, as Jews, are members of a religious minority. Yet I

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know that is not really possible to differentiate between Judaism as religion and Jewishness as belonging to the Jewish people. Those two dimensions, as well as cultural and tribal ones, are intermingled. As a matter of fact, no single general category seems to fit the phenomenon of Jewishness. Yet to antireligious Jews, Jewishness is either irrelevant or purely national. From their perspective being Polish and Jewish at the same time may seem impossible. Then the dialogue can be only Polish-Jewish. To me it is Polish-Polish, that is, the dialogue in Poland constitutes a Polish section of the universal Christian-Jewish dialogue. I believe this approach will be more and more accepted, the more so as Poland is integrated into Western structures.

II. MEANING OF DIALOGUE Dialogue in a weak sense means that there exist contacts, so that people are not isolated from each other but rather engage in conversation and exchange. In this sense dialogue is of course common, and in fact it is so obvious in contemporary Poland that nobody can even imagine its absence. I remember my surprise when Rafael (“Felek”) Scharf (Krako´w-born essay and memoirwriter), who finished university in prewar Krako´w, explained that during his youth in Poland he never paid a visit to a non-Jewish home. Now when he comes to his native city from London, where he has lived since the war, he is often a guest in homes of the most famous Polish writers, and this is perfectly natural for everyone. This shows well the new reality, the reality which we all take for granted. The new reality for me, and even more for those younger than me, means that we Jews and our Christian peers share most life experiences, educational, political, cultural. For example, my generation has been marked by a participation in the initial “Solidarity” movement in 1980s, where all could participate equally. Only in specifically Jewish contexts does our Jewishness become relevant. Thus when I speak about dialogue, I mean primarily an exchange between Jews as Jews and Christians as Christians. Part of the dialogue, albeit in a very shallow meaning of the term, takes place in the framework of political contacts. Meetings of official representatives, mutual participation at commemorations, discussions of restitution of Jewish communal property, etc. are important. Occasionally they are even vital. Yet politics, important as it is, can’t be called dialogue in any deeper sense. It provides only a part of the background. Dialogue in a strong sense must go deeper: the specific experiences of each side must be shared and heard with respect. In the Polish situation, specifically Christian experiences are mostly familiar to Jews. The opposite is not true: a

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special interest and good will is necessary if Christians want to understand the specific experiences of Jews in Poland. Ultimately Christian-Jewish dialogue should refer to a deeper bond between the two sides: at stake is a theological brotherhood. Perhaps its most important proponent was Franz Rosenzweig, to whom I feel a special spiritual affinity. He presented a vision in which both Judaism and Christianity are indispensable— each in its own way—for God’s relationship with humankind. In connection with this let me mention a very interesting example. Among the first thinkers who introduced Rosenzweig to the Polish intellectual public was the philosopher Reverend Jo´zef Tischner of Krako´w. Very active in Polish public life, he first became popular in 1981 when he became an unofficial chaplain of “Solidarnos´c´,” that initial romantic “Solidarity” that included all opponents of communism. Rev. Tischner and his students were also very active in introducing Emmanuel Levinas and the philosophy of dialogue. At the same time Rev. Tischner had an ambition to create a Polish philosophy, expressing the experiences of Poles and the miracle of “Solidarity,” where there was space for us all, and which feels so distant from today’s narrowly political, heavily Christian trade union of the same name. Back then I felt optimistic: the intellectual mentor of a 10 million-member movement was also an interpreter of contemporary philosophers, who represent the highest achievement of Jewish thought in this century. Unfortunately a lot has changed: until his recent death, Rev. Tischner continued his penetrative thinking and friendship with some liberal thinkers, like the famous former dissident Adam Michnik, but gradually became marginalized in the Polish Church. Many fundamentalist traditionalists, including some leaders of the present-day “Solidarity,” see him as a traitor, alien to genuine Polish Catholic thinking. While Rev. Tischner has not been directly involved in Christian-Jewish dialogue, his story illustrates several aspects of our situation: close personal ties of individual Christians and Jews, the evolution of “Solidarity,” tensions within the Catholic church.

III. EARLY POSTWAR DECADES: NO DIALOGU E IN POLAND In general, Christian-Jewish dialogue did not exist before World War II. The shock of the Shoah, and then the establishment of the State of Israel, provided stimuli that led to a deeper dialogue in the West. In Poland, the shock was almost nonexistent, and certainly it was not expressed, probably because the general Polish suffering was so acute. Also, paradoxically the closeness of the death camps made reflection harder; for many years accounts of events dominated, and reflection on their historic significance came later.

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In immediate postwar years official Christian-Jewish encounters were dominated by problems related to anti-Jewish violence, the most famous being the Kielce pogrom of 1946, in which forty-two Jews were killed. It began with rumors of the disappearance of a Polish child and the repetition of the age-old accusation that Jews used the blood of Christian children in their rituals, the “blood libel.” Jews tried to get from the bishops a statement condemning the blood libel; they were not successful, with the exception of Bishop Tadeusz Kubina of Cze˛stochowa, who officially proclaimed that “all allegations about ritual murder were false.” The bishops felt that Jews were too influential among the cadres of the new regime, and anti-Jewish attitudes came as a reaction to that. All those contacts prompted by pogroms do belong to the prehistory of the dialogue but they did not constitute any particular achievement. It is essential to remember that under Stalinism dialogue was difficult in any area. Dialogue requires a minimum of security and freedom. The Church was under attack, and was preoccupied with the fight for survival. There were few Polish Jews. Those who cared about their Jewishness were fewer in number, and were also preoccupied with the fight for survival, that is, survival as Jews. Jewish institutions since about 1950 were completely dominated by communists who did not even think about treating religious Christians seriously. There was almost nobody who both felt a connection to the tradition and had enough openness with respect to the Church to try to establish deeper contacts. In any case, Poland, being overwhelmingly Catholic, could enter an official dialogue with Jews only after the Second Vatican Council. Having said all this, I still do not understand why there was no attempt at dialogue among intellectuals. Individuals occasionally did things despite the system, even under Stalinist terror. Christian-Jewish contacts were numerous but the discussion and the intellectual arguments, which often degenerated into political ones, did not include problems that are associated with ChristianJewish dialogue. It was not until some time after the Vatican Council, and after the 1967 SixDay war, and the forced emigration of some 15,000 Polish Jews in 1968 and 1969, that Polish Catholic intellectuals began to establish the early stage of dialogue in Poland. Learning about Judaism became as important as condemning anti-Semitism. To my knowledge, there were two truly notable dialogue achievements in 1970s and early 1980s. The first included the publication of three liberal Catholic monthlies: Znak (much of the time edited by Stefan Wilkanowicz), Wie˛z˙, and the weekly Tygodnik Powszechny, under the leadership of Jerzy Turowicz. The second achievement was the annual so-called weeks of Jewish culture, organized by the Catholic Intellectuals’ Club in Warsaw, and specifically by Krzysztof S´liwin´ski, later first Polish Ambassador for Contacts with the Jewish Diaspora. Young people, Catholics and Jews, first came together to clean the Jewish cemetery in Warsaw, and then met with Jewish authors and

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experts on Jewish culture, and such heroes as Marek Edelman, a former leader of the Warsaw Ghetto Uprising. Many of those people, Catholics and Jews, had participated together on cultural occasions or worked in connection with political, that is dissident, activities, and were now meeting and collaborating in a systematic, friendly way. The contacts and friendships made then were helpful in dialogue later. Since the 1980s, important contributions have been made by historians from Poland and other countries who, starting with an Oxford conference in 1984, began serious collaborative work on the history of Jews in Poland. The real history of dialogue in Poland, as opposed to prehistory, began in 1986. Let me illustrate the growing interest in dialogue with figures. A recently published book, Bibliography of Christian-Jewish Dialogue in Poland in 1945–1995 by Mirosław Mikołajczyk, lists 2,593 items—books and articles related to the dialogue (but not those only on Jewish history or on Judaism), published in Polish. While the list contains some pieces written with a more or less anti-Semitic bias, a considerable majority is written in a spirit of good will, which is to me an indispensable part of real dialogue. Only important texts are included. The numbers corresponding to each year are revealing. In the years 1945–1949 there were 42 items. Between 1950 and 1956—none! In general, in the 1950s—29 items; in the 1960s—182 items; in the 1970s—160 items; in the 1980s—833 items (of which 622 items belong to the period 1986–1990); and from 1991 to 1995 only—1,347 items! In the area of dialogue, as much as in many other areas, the new Poland developed in the 1980s and experienced explosive growth in the 1990s.

I V. H I STORIC AL ISSU ES SPECIFIC TO POLAND Christian-Jewish dialogue in Poland involves many general themes—Christian theological reorientation, anti-Semitism, the bond between Christians and Jews—but naturally the stress is on the past. To overcome the burden of the past is an important part of dialogue anywhere. In Poland the tragic past is more tangible and more controversial than in many other countries, as there exist several recent influential historical events.

a. the thesis that pole ⳱ catholic The association of Catholicism with being Polish, rooted in the nineteenth century when Poland was partitioned mainly by Orthodox Russia and Protestant Prussia, still remains widespread. Not so often expressed directly, it is seen as obvious by a good number of Poles, including many Church leaders for whom the only natural Polish existence is to be an active member of the Catholic Church. Under such an approach all non-Catholics are threatened with mar-

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ginalization. And, obviously, Jews have been the prime example of non-Catholics in Poland. Curiously, in postwar Poland Jews who became Catholics have also met with suspicion. The Polish ⳱ Catholic thesis has been interpreted to mean: real Pole equals a Catholic for generations. (This often sets off a search for “disguised” Jews.)

b. suffering as a polish tradition In the background of our Polish dialogue there is the Polish Romantic tradition that includes a specific Messianism. According to this view, Poles are the chosen nation, and suffer as “the Christ of the nations.” This image, created by nineteenth-century poets, is completely unknown outside Poland. It is still important, although the last few years have witnessed the rise of pragmatic attitudes distant from Romantic categories of thought. Yet those categories are at the root of a specific Polish phenomenon, competition in suffering with the Jews. Who suffered more during World War II? Many Poles feel that Poles suffered at least as much as did Jews. While this contradicts the global image of that period it reflects the fact that the cruelty of the German occupation in Poland was directed against everyone. Virtually every Polish family lost some members. Ninety percent of Polish Jews, however, were murdered. It is only possible for Poles to ignore the difference because of their own image of themselves as victims par excellence. The result is that it is usually not understood in Poland that the Shoah constitutes a challenge to Christianity. The realization that the mass murder of Jews occurred in the middle of Christian Europe is one of the main points of reflection for Christians in Christian-Jewish dialogue. Few Poles feel it. Most say: Germans were guilty, not Christians. When they think about World War II, Poles see a bond of common suffering with Jews rather than a bond of common Christianity with Germans.

c. postwar anti-semitism The Kielce pogrom of July 1946, in which forty-two Jews were killed by a mob, is a symbol of a tragic legacy that is not easy to discuss. The moral responsibility is recognized by some Poles but most try to blame others, for example, Soviet agents, as the only ones guilty of that crime, so that Poles emerge innocent. Only a relatively few Poles, such as Jan Błon´ski in his important article, “The Poor Pole Looks at the Ghetto,” in the Catholic intellectual weekly Tygodnik Powszechny, publicly recognize the moral challenge. As usual, there is a paradox: those who feel the moral responsibility the most are those who are actually the least responsible.

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The years immediately after the war gave rise to divergent experiences. Let me illustrate one point by mentioning once again Rev. Tischner, whom I respect very deeply. He comes from the Tatra mountain region. He remembers from his childhood the activities of highlander guerrillas (“Ogien´” group) just after the war, and associates them with the battle for freedom and independence, with something genuine and positive, despite possible abuses committed by them. To me the main association is different: those guerrillas murdered some Jews who happened to be in that area. It is hard, if at all possible, to overcome these disparate memories. At the same time I find it at least as significant that we have so much in common, from the Tatras to the original “Solidarity” movement to the philosophy of Emmanuel Levinas. The anti-Semitic propaganda of 1968, the resulting purges, and finally the emigration of a majority of Polish Jews, many deeply Polonized, were without parallel in postwar Europe. Direct responsibility belongs to the ruling communists but the significance of that anti-Semitic, anti-liberal and anti-intellectual campaign can be seen—to use the phrase of Adam Michnik—in the attempt to adapt Polish extreme-right wing traditions for the use of the communist party. It is hard to say how much popular support was generated by the anti-Semitic campaign. There was no free expression of opinion. Individual experiences range from hostility to solidarity. Judging from the experience of free Poland of the 1990s, where anti-Semitic attitudes are widespread, it is possible to guess that there was general support for the purges. I must stress, however, that despite anti-Semitism, the events of 1968—the student revolt, the demand for freedom—produced a common experience for people like me and the Catholic intelligentsia, which was also attacked. Many of our experiences were the same. We were on the same side of the barricades then, and very often later, in the dissident movement of the 1970s and 1980s. Today this can help us as we deepen our dialogue.

d. jewish communists The concept of “Jewish communists” has been so abused by anti-Semites that it is hard to see the facts. And the fact is that there were many very visible, prominent Jews in the early period of communist Poland. True, they rarely maintained any vestige of Jewishness and rarely, if ever, tried to act in any Jewish interests. They behaved more or less the same as other fanatical communists. Still, the sheer number of those Jewish communists who participated in the system of terror, and their fanaticism, does pose a problem for us Jews today. Of course, I am not proposing that we blame only the Jews and absolve others (as my critics sometimes suggest). I only want to stress three points. The first two are simply facts, the third is an interpretation. First, communism, broadly understood, belongs to Jewish

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history, and not just to the history of Poland, Russia, Europe, etc. Second, in postwar Poland, and more generally in the middle of the twentieth century in Europe, Jews were not only among the victims of oppression but also, less frequently, among the oppressors. And the third and more controversial isue is that Jews in Poland and elsewhere have (too rarely, I believe) dared to take up the resulting moral challenge. I believe this can be made part of the dialogue agenda, provided that good will can be assumed to be present on both sides. I think that it would be wrong to leave the topic of Jewish communists to antiSemites.

E. DENYING T HE EXIST ENC E OF ANTI-SEMITISM A common denominator of many troublesome elements in Polish attitudes toward Jews can be seen in the denial of the existence of anti-Semitism. It is amazing that even Rev. Jankowski of Gdan´sk, a close associate of Lech Wałe˛sa, claimed that he was no anti-Semite, shortly after making a sermon to the effect that the star of David is a sinister symbol of the threats to Poland. He probably wanted to say that he was not guilty of saying something wrong, but rather that the Jews were guilty, which is a classic anti-Semitic motif. Part of the reason for dismissing the existence of anti-Semitic attitudes probably comes from Polish history. If we understand anti-Semitism as murder—let alone when we subconsciously see it as mass murder!—then mere words of hate are seen as insignificant. We need to remind ourselves that poisoned words can lead to criminal actions. Dialogue can be helpful here. Anti-Semitism in today’s Poland is often completely abstract. It is not so much that Jews are blamed as enemies but that enemies are labeled as Jewish. This is most striking in the case of soccer fans who taunt the other team and its fans with the chant “Jews to the gas!” On the other hand, anti-Semitism in Poland is always expressed in the same way: there are too many Jews. There are people who still say this. The truth is that there are very few affiliated Jews in Poland and almost all of those who occupy important positions have nothing to do with Jewish life. Most of them would not even admit that they are of Jewish origin. I find this sad. To overcome anti-Semitism would mean to have a situation in which it would seem natural that there can be a Jew in the government who on Jewish holidays participates in synagogues in celebrations. We are far from this level. I feel, however, that a slow development toward less hostile attitudes is taking place in Poland. It was recently seen at a session on the thirtieth anniversary of the March 1968 anti-Semitic campaign that I helped organize in Warsaw. The present chairman of the Foreign Relations Committee of the Polish parliament, Czesław Biełecki, whose parents left in 1968 for Israel, stated

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in public: “I have worked all my life to make anti-Semites afraid of me.” This says something important about him, and about present day Poland.

V. THE POLISH C ATHOLIC CHURCH The Polish Catholic Church is the main force in Christian-Jewish dialogue in Poland. That is why the developments within the Church are important for our topic.

a. the pope In Poland, as much as in Western countries, dialogue takes place against the background of the post-Vatican II openness of segments of the Catholic Church to Jewish traditions. In Catholic revivalist movements like “Neokatechumenat” or youth groups like “Oazy” Hebrew songs are sung, and Judaism is seen as a valuable point of theological reference. For “Neokatechumenat” regaining the Jewish roots of the church is one of its principal goals. Most Jews in Poland are happy to witness the Christian search for Jewish roots, and some try to help in it. John Paul II has made major contributions to Christian-Jewish dialogue. He developed further the reorientation of the teaching about Jews adopted at the Second Vatican Council, called anti-Semitism a sin, visited the synagogue in Rome, and established full diplomatic relations with the state of Israel, where he visited not only the Wailing Wall but Yad Vashem as well. He is a Pole, and his Polish experiences have helped him to have a deeper approach to the question of church’s relations with Jews. He had personal contacts with Jews in Krako´w (he used to visit the president of the Jewish community at home), and he witnessed the murder of Jews during the war. (I guess that he is the first pope in centuries who sees Jews not as abstract figures only but also as real life neighbors.) It is only in some minor areas that I find his approach hard to accept. He has repeatedly said that the tragedy of Shoah was “our common tragedy” and that it was so great that it must eventually bear good fruit. Whatever can be meant by bearing fruit, I believe it is too easy a jump from death to resurrection. This can be described as “too Christian,” although it is true that some Jews say much the same thing by proposing their favorite kinds of fruit (from the creation of the state of Israel to the prospect of complete Orthodoxy for all). Whatever criticism we can make of the Pope’s words, his message to the Poles has been consistent and clear: respect Jews and their religion. The present pope is a hero in Poland, genuinely respected and indeed revered more than anyone before. This makes life hard for all those who combine Christianity

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with explicit anti-Semitism. This combination was common before the war and has not disappeared. The difference is that now they either oppose the teaching of the Pope, which is very rare in Poland, or have to find indirect terms, and include Jews in larger categories like Freemasons, Trotskyites, “Europeans,” etc. Even though the blend of Catholic and anti-Semitic views persists, it is hard to say that it is a majority view, and it is much harder than before to present it as the official Church approach. Opinion polls show that religiously motivated anti-Semitism has decreased and what has remained is primarily political anti-Semitism, directed more against assimilated Jews than against Judaism. In fact, the most virulently antiSemitic words and activities come from extremists like skinheads and similar groups, who are either openly anti-Catholic, or at least say that the Vatican has been under pernicious Jewish influence. Sometimes the fact that both Jews and Christians are seen as a target finds concrete expression. On February 26, 1997, the Warsaw synagogue was set on fire. Fortunately, firemen came immediately and only the entrance and vestibule were damaged. Nothing is known about the arsonist even today. The way it was done suggested a carefully prepared act. The incident was perceived as a serious sign of anti-Jewishness. Paradoxically, it gave occasion to an unprecedented expression of solidarity with Jews. High-ranking politicians and leaders of churches, including the head of the Polish president’s office, and the deputy speakers of the House and the Senate, were present in the synagogue at the service next day. Some who were not present or properly represented, for example the Catholic bishops, issued statements with words of solidarity. Whatever the motivations, the message was clear: anti-Semitic acts are not to be tolerated by the Polish elite. A month later fire was set to a sixteenth-century wooden church in Katowice. One wall was burned. Fire has been set to St. Michael’s church four times since 1995. In June 1997, the police caught the suspected arsonists, a group of skinheads. The press reported it, but it was an incomparably smaller piece of news in Poland than the synagogue fire, and of course outside Poland it aroused no interest at all. No surprisingly, the parish priest was angry: “Where is the president,” he complained, “who immediately went to the synagogue?” While one can give reasons why a fire in the only synagogue in Warsaw is symbolically more powerful than a fire in one of thousands of Polish churches, the fact remains that extremists can be harmful to both, and that they can come from families living in the neighborhood. Similarly, desecration of cemeteries does not necessarily affect Jewish cemeteries only. Of course, sometimes desecration of Jewish cemeteries is motivated by anti-Semitism. It is, however, a mistake to assume that it must be so. Vandals who enjoy destruction attack Christian cemeteries even more often than Jewish ones. Satanists who enjoy

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desecration of symbols holy to the dominant religions destroy graves at Catholic cemeteries. I am not trying to justify desecration. I am only saying that so often our understanding of the significance of specific events from distant places has more to do with our images of the places than with the details of the events. And the image is often based on prejudice.

b. the divided church Recently, divisions in the Polish Catholic church, and indeed within the Episcopate, have been presented openly to the public for the first time in many generations. The first occasion was provided by the debate before the national referendum that was supposed to approve (or reject) the new constitution. It was approved by a small majority on May 1997, but only 42 percent went to vote. The final text resulted from a compromise of major parties and the Church. It was engineered in 1989 by Tadeusz Mazowiecki, well-known politician and the first noncommunist prime minister, a noted Catholic intellectual who had consulted on the text together with Bishop Tadeusz Pieronek, secretary of the Episcopate. He approved the words with which God was mentioned in the preamble (“we the Polish Nation—all citizens of the Republic, those who believe that God is the source of truth, justice, good, and beauty, as well as those who do not share this belief but rather that these universal values derive from other sources . . .”) and the way the protection of human life was formulated (“Legal protection of the life of each human”). Pieronek remained loyal and said repeatedly that a reasonable compromise had been achieved, and that the Church would not say how one should vote. Other bishops, however, prevailed and issued an official statement saying that while everyone is free to vote as one wants, morality is all-important and the proposed text is morally flawed. Some bishops went much further, claiming that the constitution promotes a New Age concept of God, and is directed against human life and against Polish sovereignty. A massive and virulent campaign was organized by the right wing and the church. The atmosphere has been aptly characterized by Aleksander Smolar as a conflict of two civilizations: “Christian-national-patriotic Poland defends Faith, Fatherland and Family against liberal-communistMasonic-Jewish-relativistic-postmodern attack.” Smolar is the director of the Polish Soros Foundation, called the Stefan Batory Foundation, which has greatly supported education for democracy and has helped innumerable cultural and scholarly activities in recent years. The foundation, and George Soros himself, have been virulently attacked by the conservative right wing as the stronghold of a Masonic conspiracy that wants to kill Christianity and morality, and eventually rule the world.

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Perhaps the most influential in the attacks against liberalism is the network of radio stations, “Radio Maria.” The organization has created clubs of listeners, the “family of Radio Maria,” where they cultivate traditional values, or rather the attitude of defense of traditional values, and gain popularity by organizing prayers and support for the poor. While the radio avoids direct anti-Semitic expressions, on many occasions they do not distance themselves from the listeners who call and talk about the Jewish plot to undermine Poland. Even more common are veiled references, as for example the expression “in Poland there is a fifth column coming from the national minority,” which is a code term for the Jews. The battles have one common denominator: the question to what extent should the religious community of the dominant Catholic Church be separate from the political realm? Should the teachings of the Church be binding for all? The key question was already asked several years ago—when things were not that clear—by the remarkable priest Jo´zef Tischner: does the Church want political power in the state? It has been more and more clear that the conservatives in the Catholic Church cannot imagine that state laws may be not subordinated to Church values and principles. This description of the anti-liberal offensive is quite frightening. It sounds familiar. The anti-liberal attitudes described above are almost automatically assumed to be anti-Semitic. I also tend to make this assumption. I know, however, that this is not always true. Some church conservatives are clearly not antiSemitic. For example, the Pope is often on the conservative side and warns against Western nihilism, but it would be a serious abuse to see his views as giving any support to anti-Semitism. What is more, I have not described the entire Polish church, but rather a part of the divided Polish church. Yes, the defenders of the faith against all kinds of enemies form just a part of the Polish Church. Not only because of the new trends in the Church mentioned earlier but also because of concrete moves by Catholic leaders. Archbishop Gocłowski of Gdan´sk rebuked anti-Semitic statements made by Fr. Jankowski of his city. True, Fr. Jankowski remains an influential figure, but he cannot claim to represent the official position. Bishop Pieronek long ago strongly criticized “Radio Maria,” and during the Pope’s visit in June 1997, the Vatican spokesman said that commentaries on that radio by its Vatican correspondent Fr. Heymo represent his private opinions and not the position of the Holy See. Bishop Pieronek, who is, after all, the secretary of the Polish Bishops Conference, added that this statement could be extended to “Radio Maria” as a whole. He also thanked the Batory Foundation for its activities. Similar thanks and words of appreciation were expressed by archbishop of Lublin, a well known philosopher, Rev. Jo´zef Z˙ycin´ski. In the fall of 1997 a delegation of Polish bishops went to Brussels and came back with a remarkable pro-European statement. They have been criticized

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from many corners for being too soft on the pernicious liberalism of the European Union. To quote Rev. Tischner again: up to 1989 the Polish Church was based on “bearing witness against” communism and limitations on freedom for religion. Now the transition to a free society on its way to integration with the West is difficult. The conservatives need to have an enemy against whom they can position themselves. The conservative tendencies, often close to French Archbishop Lefebvre’s extreme right-wing and traditionalist Catholic attitude, represent just a part of the Polish church, and naturally they form an even smaller part of Polish life as a whole. Polish democracy is based on open-minded people, who are many; they seem to outweigh the anti-Western forces, especially among younger generations. Let me give you two examples. Two events that took place in the fall of 1996 were co-sponsored by the Polish Council of Christians and Jews. I participated in both. In Torun´, a town on Vistula north of Warsaw where Copernicus once lived, in October 1996 a conference was held under the name “Colloquium Charitativum” commemorating a meeting of Catholic and Protestants nearly 400 years ago. In 1995 the first such conference took place, with just Catholic and Protestants. The second, with Christians of various denominations and Polish Jews, was announced as “a brotherly conversation between Christians and Jews.” It took place in “Artus Manor,” a historical building in the heart of the town, with the local notables participating and Bishop Suski of Torun´ and his auxiliary Bishop playing leading roles. Many priests and clerics learned new things, for example, about Jewish resentment of the medieval disputation. Despite differences of opinion expressed at the conference, the atmosphere was very warm and permeated with good will. A week later, in Gdan´sk, a two-day event took place, organized jointly by the then president of the recently reestablished Jewish community, Jakub Szadaj, and the pastor of the city’s Catholic intellectuals, Fr. Krzysztof Niedaltowski. Entitled “The Holiday of the Bible—the Holiday of the Torah,” it was devoted to friendly exchange and reflection on similarities and differences in Jewish and Christian approaches to the Hebrew Bible. The event included three parts: an art exhibit, singing and music in a church, a panel discussion in the city’s townhall, and finally reintroduction of a Torah scroll to a former synagogue building, now the city’s Music School, by Rabbi Michael Schudrich of Warsaw. In the packed hall the scroll was presented to an audience of Jews and Christians, including Archbishop Gocłowski. The two events were of high caliber, included the local civic leaders, leaders of the Catholic Church, and other denominations. They were reported by the media. Because nothing dramatic happened during them the national media devoted only brief coverage, and foreign media did not notice them at all. There

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are other events of this kind that influence the atmosphere in Poland. These two are remarkable by themselves, and become highly significant when we look at their immediate vicinity: it is in Torun´ where “Radio Maria” has its headquarters and in Gdan´sk, Fr. Jankowski continues his activities. This is what I mean by the two faces of Poland.

VI. AC C OMPLISHMENTS There are several tangible accomplishments in the field of Christian-Jewish dialogue.

a. polish episcopate’s commission for dialogue with judaism Established in 1986, it was reconstructed in 1996 to become a Council inside the Commission for Interreligious Dialogue. First it was chaired by Bishop, later Archbishop, Henryk Muszynski, who is now the vice-president of the Bishops Conference. Later it was led by Bishop Stanisław Ga˛decki, also of Gniezno. At first the commission dealt mostly with the Carmelite convent crisis. Later it moved to the field of implementation of Vatican Council guidelines for teaching about Jews. For members of the commission, consultations with Jews are seen as natural and obvious, which was literally unthinkable a few decades ago. The pastoral letter of the Polish Episcopate of November 30, 1990 remains the most notable achievement of the commission. It expressed not only the historic new official teachings on Judaism stemming from the declaration “Nostra Aetate” but also addressed some problems connected to Polish history, specifically the consequences of the fact that while the Shoah was perpetrated by Germans it happened principally on Polish soil. The letter succeeded in overcoming much of the defensiveness so common in Poland, the denial of any Polish involvement in that tragedy. A priest told me that some people during private confession mentioned the sin of anti-Semitism. Even if this is exceptional, it seems highly significant. The Polish Church has established the Institute of Catholic-Judaic Dialogue at the Warsaw Academy of Catholic Theology. Its director, Rev. Waldemar Chrostowski has been an active participant in dialogue, and the most prolific writer in this field. The name of the institute reflects the stress on the religious dimension. Although I agree with the approach I have consistently criticized the name as inaccurate from the Jewish perspective, because I feel that Jews who participate in dialogue with the Church do so as Jews and not as “Judaic believers.” This controversy is actually a constructive one, and helps develop the dialogue. The institute publishes the bibliography of works on ChristianJewish dialogue mentioned above.

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In a noteworthy move, the Commission has established the Day of Judaism in the Polish Catholic Church. It is to be observed every year on January 17. The first initiative of this kind took place in Italy. In Poland it is meant to cover the whole country. The first time, on January 17, 1998, which happened to be a Saturday, a special visit was paid by Bishop Ga˛decki and accompanying persons, together with dozens of Catholics in the Warsaw synagogue. The visitors were present at a havdalah ceremony marking the conclusion of Shabbat. The Day of Judaism was marked by a special sermon or eventin only a few churches but an important beginning has been made.

b. international council at the auschwitz-birkenau museum. The Council, chaired by Senator Władysław Bartoszewski, and Professor Israel Gutman, both survivors of Auschwitz and experts on World War II, has been an important forum for dialogue. One of the important lessons I learned from being there is that differences can cut across religious or ethnic distinctions. For example, it took years to debate whether a quotation from the Bible is appropriate for a monument commemorating the victims. Most of us wanted a quotation from Job. It was Dr. Maurice Goldstein, of blessed memory, the head of an umbrella organization of survivors, who was our main adversary. Auschwitz has remained a fertile ground for controversy. It is so emotionally loaded that it is hard for many Jews and Poles to be sensitive to other people’s attitudes. Part of the problem is that Auschwitz serves as two symbols rather than just one. Everywhere it is the symbol of the Holocaust, and in Poland it has been the symbol of the Polish suffering under the German Nazi occupation during World War II. There are undeniable reasons for both these symbolic meanings. The challenge is to make them coexist. One of the hardest controversies has been one over the presence of religious symbols, especially crosses. A Polish Catholic instinct is to defend the cross, an attitude perceived as heroic under communism, and now transferred in a sense to the defense against Jewish pressure to remove crosses from certain places. A recent phase of the controversy was marked by Elie Wiesel’s statement against crosses at Birkenau, an expression of feelings that I share, but made in a very inappropriate moment, during the Kielce pogrom commemoration, when the highest Polish authorities and also the Church did a lot to meet the challenge of moral responsibility for that massacre. The solution came in late 1997: the religious symbols, both crosses and stars of David, were removed from the field of ashes at Birkenau. More recently another controversy reemerged. It concerns a large, twentyfoot, cross, located at Auschwitz, just outside the barbed wire fence. It was put there in 1989, during the controversy over the Carmelite convent, since then

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relocated after a special intervention by the Pope. To me, as to most Jews, the cross is too imposing to be accepted: it dominates the space there. More generally, to decide which signs can be put at Auschwitz and how remains an unsolved problem. If it is at all possible to develop a widely accepted policy, approved both in Poland and internationally concerning the way private plaques and commemorating symbols are placed at the Auschwitz camp, this can be achieved only with the participation of the Council.

c. polish council of christians and jews Formed in 1991, the Polish Council of Christians and Jews, affiliated with the International Council of Christians and Jews, is an association of individuals active in the field of Christian-Jewish dialogue. Some, like Rev. Michał Czajkowski, are priests and teachers, others are journalists, students, and members of various Christian and Jewish organizations. From the beginning until 1998 the council was co-chaired by Rev. Chro´stowski and myself. Among our most original achievements is the annual gathering in one Warsaw church on Sunday closest to the Jewish holiday Simchat Torah, where we read Biblical texts, listen to Jewish and Christian comments, and finally read psalms together. Every year the Council presents the Figure of Reconciliation Award to foreigners who have made significant contributions to dialogue in Poland. Among its recipients is Sir Sigmund Sternberg from London, and Rabbi James Rudin, Interfaith Affairs Director of the American Jewish Committee (AJC.) I have worked closely with Rabbi Rudin on the important program devised jointly by the AJC and the Polish Episcopate. Every year theologians, American rabbis and Polish priests visit one another’s country and lecture to students at Catholic universities and Jewish institutions. The long-term effects of such exposure to each other’s religions are hard to overestimate. The contacts are especially precious in the Polish context. A recent controversy inside the Council has shown how fragile the dialogue can be. In the fall of 1997 Fr. Stanisław Musiał, a Jesuit from Krako´w, published a criticism of the bishops who according to him reacted too weakly to antiSemitic utterances of Rev. Jankowski. This text expressed a deep understanding of Jewish concerns, and many Jews as well as Catholics thanked Fr. Musiał for his attitude. He was criticized, in turn, by Rev. Chrostowski, co-chairman (along with me) of the Council of Christians and Jews, who has done a lot to explain the Jewish roots of Christianity to Polish Catholics and promote respect for the Jewish religion. His polemic functioned as a defense the bishops could not help but understand as indirect support for the anti-Semitic arguments of Fr. Jankowski. This forced me to disassociate myself from Rev. Chro´stowski, with whom I had been an inseparable part of the dialogue. He has remained a partner to me but our publicly expressed opinions differ on a variety of issues,

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including the question of religious symbols at Auschwitz. At stake was the credibility of the Council of Christians and Jews. In March 1998 Rev. Chro´stowski resigned from the position of co-chairman of the Council.

V II . TOWARD THE FU TU RE: A NEW ATMOSPHERE AND NEW C HAL LENGES Despite the growth of the political right wing and conservative sentiments in the Church, a new atmosphere in Catholic-Jewish relations is obvious. It makes me feel that I am a participant in a growing mainstream development in Poland. Our dialogue is important for fundamental reasons, as it is in the rest of Europe and in America. It is also essential for us as a means to diminish antiSemitism. In addition, it can be practically useful. After all, the church started restitution of former church property several years ago. (Incidentally, this has provoked criticism of what was perceived as the church’s greed for property). The Jewish community has just begun to work toward a restitution of formerly Jewish communal property, on the basis of legislation of May 1997. A cooperation of Jews and Christians in this area is not inconceivable. Above all, I believe that Christian-Jewish dialogue is an essential fragment of a variety of dialogues needed for a better future of our planet. For us Jews, Christian-Jewish dialogue presents an important challenge. The Polish Pope referred to Judaism as Christianity’s “older brother” (in faith).1 Now, if taken seriously, this term suggests that we should see Christianity as our “younger brother.” A comprehensive vision that would be true to Jewish traditions and recognize a special brotherhood with Christians has yet to develop. Poland can have a role in the historic developments in the Christian-Jewish dialogue. After all, this is a most important place in Jewish history, and a very important country for the world-wide Catholic Church, and its present leader, as it is both the home of Pope John Paul II and was the home of so many Jews over the centuries.

endnote 1. By the way, he did not invent that himself, as Westerners usually assume; he just quoted Adam Mickiewicz, the foremost Polish Romantic poet, who lived in the first half of the nineteenth century. And the Pope probably had learned this phrase about Jews in school, as have most of us in postwar Poland.

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Chapter 18 r e l i g i on a nd h u m a n r i gh t s : t h e c a p a c i t y t o “sw e a r t o one ’ s o w n h u r t ” Donald W. Shriver, Jr.

Among the themes that run through this collection is one voiced by Willy Fautre´’s essay on Belgium: “Nobody can ignore the weight of history and culture in the various European states.” He goes on to warn against the “major legal and cultural error” of treating the American tradition of religious tolerance as a model for the world. Other countries, he rightly says, must work out their own forms of religious pluralism.1 History, faith, law, and reason are powerful ingredients in the amalgam of cultures; and, to some extent, the struggle of thought in all these essays concerns which of these four should “trump” the other. At issue are questions of practical definitions and exercises of social-political authority. Unease about the history of religiously legitimated authority, as many of these authors point out, is well founded. Whatever else religion is, it seeks to point to an Authority above all other authorities. It dares to capitalize the word. Whatever else government is, it functions to bring order and a degree of benefit to the members of some community. The backup of its authority is some form of actual or potential exercise of coercion. Nothing so conditions the debate between religion and government so anxiously as the perennial issue of when or if resort to coercion is legitimate for protecting the interests of one or the other. In the long dialogue among religion, law, and the coercions of government, Europeans and Americans have moved toward a subtle, historically tutored

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general formula: Humans should be free to believe in and to appeal to an Authority above all authorities, but they should never be free to resort to coercive measures for imposing that appeal upon their neighbors. Law and government, on the other hand, have their own authority and must be the custodian of coercions that maintain that authority. But neither do they have the right to justify coercion by appeal to the ultimate Authority of religion. “Supreme” courts they may institutionalize, but such a court—so goes the formula—must be open to challenges to its own decisions from religion and other civic quarters. The potential challengers, in the long run, must include every citizen. This is the democratic theory. Every decision of government is open to revision. Government must have no claim to theoretical ultimacy. That way lies totalitarianism. This, perhaps, might qualify as the one negative theological principle on which democratic theory depends: government is not God. On grounds of this negative principle, there may indeed be such a thing as “Christian atheism.” A better term would be, “religiously justified secularism.” As Islamic scholar Abdullahi An-Na’im observed in a recent lecture, religious believers should consciously fashion a religious justification for the secular nature of government and its law.2 On the whole these essays give only thin attention to this principle or to the substance of religion generally. One exception is the final discourse of Stanisław Krajewski in his wrestle with the distinctions between the adjectives Jewish, Christian, and Polish. Krajewski sorts out these three on his own explicit theological grounds when he says: Ultimately Christian-Jewish dialogue should refer to a deeper bond between the two sides: at stake is a theological brotherhood. Perhaps its most important proponent was Franz Rosenzweig. . . . He presented a vision in which both Judaism and Christianity are indispensable—each in its own way—for God’s relationship with humankind.3 Quite clear in this analysis is the distinction between Poles’ national and Poles’ religious identities. Equally clear is appeal to an alleged, religiously defined worldwide human community. That both Judaism and Christianity have often fallen short of this vision in practice goes without saying. But insofar as the idea of a supra-provincial humanity stands on theological feet in these faiths, they have a fundamental element in common with the idea of human rights. In its own way, Islam makes a kindred claim. Appealing to history and following the radical critics of religion in the European Enlightenment, many leaders of the modern human rights movement have cocked a suspicious eye at religion and its resort to an Authority to which humans must subject themselves. Not much noticed in this standoff is the

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history of internal debates among the religious themselves. Nudged by theologians, they have sometimes had to distinguish for themselves the difference between absolute views and views of the Absolute. In my own Protestant tradition, for example, we often quote the great confession of Martin Luther before certain heads of church and state in the sixteenth century: “My conscience is captive to the Word of God. Here I stand; God help me, I can do no other.” Sometimes when modern Protestant preachers quote this famous outcry, they omit the phrase “God help me.” The inclusion is crucial. The faith affirmed by all the great world religions points to an Ultimacy that has the right and power to shape, correct, or deny human versions of that Ultimacy. Empirically, religion is a body of beliefs, practices, and organization. But, as Reinhold Niebuhr used to say, religion can often be merely the final battleground between human pretension and God. In this theology, a certain secularism—or creatureliness—adheres to religion itself and all its works. Democratic theory has a deep interest in preventing religions, singly or all together, from arrogating to themselves the wisdom, the virtue, and the powers which they themselves ascribe to God. Authentic religious faith—at least as I have here described it—should be the first to assert this claim; and this “should” is a solid ally of the very political principle on which much of the human rights movement classically depends: No more than religion does government have the right to claim its Ultimacy. Citizens owe respect to government, but government also owes respect to citizens. Each has responsibilities to the other; and both should be required to engage in such dialogue as will clarify what those responsibilities are in theory and in practice. Implicit here is the notion of tradition and history as open to challenge and change in the human present. Surely no one can or should ignore the weight of history and culture. But neither ought to qualify as dead weight. Living traditions, in a new global context, can relate to each other in mere collision; but they might also relate as mutual learners. Both the human rights movement and religious peoples are being invited now, as never before, into dialogues wherein they may learn to understand each other’s histories from new perspectives. One of these perspectives is the idea of universal human rights.

AN AMERICAN RECOLLECTION If the essays in this book do nothing else for its American readers, they can remind us, for example, that Jews and Christians in Poland do have a specific historical agenda to work through, that the hurts of the Bulgarian Muslim Community in the communist era were deep and enduring, that it is no simple thing to claim that one is both a Catholic and a Romanian. In the midst of

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learning the roots of debate over human rights against the background of history in all such countries, Americans may find ourselves acknowledging the particulars of our own history; and we may find it necessary to abandon all traces of the pretense: “They should become like us.” At the same time, it would be inconsistent with the notion that we all have something to teach each other for Americans to ignore those features of our own history that have already influenced the history and culture of other countries. Our current danger, perhaps, is to forget certain of the philosophic and religious roots of American law and custom for the relation of religions and society. It is easy in increasingly secular America to forget that our way of separating church and state and our legalized freedoms for religion were, in the beginning of the republic, justified by a logic that owed as much to respect for the substance of religion as to suspicion of that substance. One might even suppose, in reflection on Robert Goeckel’s critique of the way liberal American church muted their own tradition of religious freedom in negotiations with countries under communist rule during the cold war, that Americans should remember their own history with a persistence devoid of arrogance. This is not an easy public stance, but one that matches the best of the stances enclosed in this volume.4 In that spirit, let me recollect some arguments for religious rights promulgated in the “seed time” of the American republic—the 1770s and 1780s. Two bits of debate, which prepared the soil in which the United States Constitution grew, are worth keeping vivid in the American memory. They are not irrelevant, I propose, to the worldwide modern debate over the rights and the responsibilities of religious citizens in their relation to each other and all others. The first illustration comes from the intra-organizational affairs of Presbyterians living, in 1776, in the State of Virginia. Colonized a century and a half before by English immigrants who were mostly members of the established Church of England, Virginia had its own legal Anglican establishment. Having recently joined its twelve state cousins, over the past summer, in declaring independence from English colonial rule and now engaged in the beginnings of revolutionary war, Virginia legislators were Anglican by a large majority. But a majority of Virginia citizens were Presbyterian, and to no one’s surprise these “dissenters” had little interest in the continuation of an established Anglican church in the new Virginia. From self-interest and on majoritarian principle, they could well have followed precedent by claiming that the new establishment should be Presbyterian. Remarkable, then, was the argument advanced by leaders of the principal judicial body of their church, Hanover Presbytery, in a resolution delivered in the fall of 1776 to the Virginia General Assembly. Obvious in this argument is the mixture of Lockean principles of reason and theological principles of faith.

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Certain it is, that every argument for civil liberty, gains additional strength when applied to liberty in the concerns of religion; and there is no argument in favor of establishing the Christian religion but what may be pleaded, with equal propriety, for establishing the tenets of Mohomed by those who believe in the Alcoran: or if this be not true, it is at least impossible for the magistrate to adjudge the right of preference among the various sects that profess the Christian faith, without erecting a chair of infallibility, which would lead us back to the church of Rome. . . . We would humbly represent, that the only proper objects of civil government, are the happiness and protection of men in the present state of existence; the security of life, liberty and property of the citizens; and to restrain the vicious and encourage the virtuous by wholesome laws, equally extending to every individual. But that the duty which we owe our Creator, and the manner of discharging it, can only be directed by reason and conviction; and is nowhere cognizable but at the tribunal of the universal Judge. Therefore we ask no ecclesiastical establishments for ourselves; neither can we approve of them when granted to others.5 It is sometimes said that no human gives up power willingly, but here is an apparent exception to that truism. Implicit in the statement is the spirit of Psalm 15:4, where righteous persons are described as those “who swear to their own hurt,” a notion still hovering over American courts of law which ask witnesses to swear, usually on a Bible, to “tell the truth, the whole truth, and nothing but the truth, so help me God.” On grounds of equal rights for the religious and the nonreligious, nonbelieving Americans have reason to object to both the Bible and the help of God in our courtrooms. But it is sobering to remember that, in the minds of these old Protestant theologians, the “reason” of secular law and the “conviction” that a Judge presides over the judges reinforced each other while retaining an inherent capacity of each to limit and criticize the other. Reason and conviction are here in dialogue. To neither is ascribed inert, unquestionable ultimate authority. One has to add that these same theologians were sure that the spiritual vitality of religion would be more hurt than helped by its inclusion under the umbrella of government favoritism. This is one of the modern points of debate between Americans and many East Europeans, especially in light of our easy overlooking of ways in which religion still enjoys various favors from government in America. The question that democrats have to continue asking—a question as necessary as it is old—is: Quis custodiet custodes? Who guards the guardians? No legal scholar in the United States needs reminding that Enlightenment ideas of Natural Law suffused the thinking of those who founded the American republic or that, long since, such a Law has been viewed skeptically

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as having legitimate standing in modern American courts of law. In his 1991 hearing before the Judiciary Committee of the U.S. Senate, a nominee to the Supreme Court, Clarence Thomas, had to disown one of his own published writings in which he paid some modest tribute to the idea of Natural Law. What counts here, for democratic theory, is the revisability of law under standards that may come into view in the course of civil conversation over time. In their separateness from control by government, voluntary associations of all sorts have power to contribute to this conversation, religious associations among them. Given the extraordinary power allocated to the Supreme Court in the American Constitution, Americans have a stake in believing that there is some authority to which our citizens can appeal above the authority of that court. Secularist thinkers like William Lloyd Garrison and theologians like Martin Luther King, Jr. were in agreement on that general point. Without some such agreement, we Americans might still live under the umbrella of a 1789 constitution that acknowledged the legality of slavery. Perhaps this is a principle that, out of our own history, Americans have to maintain as vital for implementation in some form appropriate to other particular national polities: justice in those polities will require freedom for citizen recourse to “reason” (such as reasons of human rights) or to “conviction” (such as the conviction that all humans are creatures beloved by God.) For Americans certainly, perhaps for others, an equally pertinent recollection may be the words of James Madison to this same Virginia legislature nine years after the resolution of the Virginia Presbyterians. Before that house was a proposed law for tax-supported instruction in the fundamentals of Christianity in the public schools. Madison may have been the most “religiously musical” leader of the political philosophers who would soon frame a new Constitution for the recently free thirteen colonies.6 In a widely circulated document, he opposed the proposed law on the following ground: Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of this duty to the general authority, much more must every man who becomes a member of any particular society do it with the saving his allegiance to the universal sovereign. . . . True it is, that no other rule exists by which any question which may divide society can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority.7 Theology like this beats a path from religious conviction to assertions of human rights. Doubtless Madison appealed to both the “natural rights” of all humans as well as his faith that humans stand equally beloved by their Creator.

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This denial of final authority to majorities in the name of minority interests helps him clarify a version of religion that protects dissent of many stripes, including dissent of one. All Americans are close to the essence of democratic theory when they acknowledge that the acid test of democracy is how it curbs majority hegemony over minorities. Religious Americans are close to one political truth to be derived from their faith when they acknowledge that majorities and minorities all can be wrong. Learned Hand’s great aphorism is historically the near neighbor to this faith: “The spirit of liberty is the spirit that is not too sure it is right.” As one American, this author hastens to confess that, in many a historic instance, our popular culture and official policy have often contradicted the spirit and the substance of both this theology and the classic eighteenth-century tradition of “certain inalienable rights” belonging to all human beings as such. Americans, too, again and again, have in practice constricted the class of humans to which such rights belong. Indeed, our history is full of analogies to human groups in Europe and elsewhere who invest their identities with a sanctity that implies their right to deny rights to various neighbors. No theme runs so generally through these essays as the passion with which particular human collectivities are seeking to protect their particularity whether or not the rights of others are thereby damaged. When Americans review the history of racism, xenophobia, and nationalism that have regularly infected our political history, we have reason to understand only too well why the peoples of other countries display their own forms of resistance to practical measures that would implement such slogans as “all humans are created equal.” We may call this the phenomenon of identity politics. With some observations of this phenomenon, as recorded in these essays, let me conclude.

LIBERT Y AND JU ST ICE–FOR ALL? Again, Krajewski offers an analysis that sets the context of the philosophicalpolitical controversy: Jews and Christians in Poland are all Poles. But, in distinction from some of their neighbors, each has a religious tradition that defines them as members of the human species worldwide. “[T]he dialogue in Poland constitutes a Polish section of the universal Christian-Jewish dialogue.”8 As they engage in this dialogue, they must speak not only of their shared history as Poles but also of their relationship to the rest of humankind. That may not be a requirement of traditional Polish culture or law. It is very much a requirement of their respective faiths. In its own way, Islam affirms a similar tradition. The tension between the three elements—faith, nationality, supranationality—is vividly spelled out in certain post-Vatican Two declarations of John Paul II. On the one hand, the Pope believes that transnational unity in Europe has to be “built with the bricks of men’s consciences, baked in the fire of the Gospel,

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united by bonds of fraternal social love, the fruit of the love of God.”9 A secular demur from this claim might honor the papal appeal to “natural” conscience, but this would be to assume with the Enlightenment that there is such a thing as “the conscience of mankind.” Cultural particularists are not so ready, in deference to alleged general conscience, to dissolve the boundaries that protect their right to remain particular. As Timothy A. Byrnes goes on to observe, and as the Pope himself acknowledges, the tension between plural and singular definitions of our humanity is powerful and general inside the churches as well as inside many a national history. The Pope illustrates the kinship of minorityrights claims and the human inclusiveness of his Christian anthropology when he says that “in the Church’s commitment to meet the legitimate expectations of minority communities, the dimensions of her catholicity appear with greater clarity. Obviously the Church cannot submit to exploitation and demands made by any kind of nationalism; rather, on the basis of her thousand-year-old experience she feels obliged to respect the rights and duties of both the majority community as well as those of the minority communities present in the nation.”10 Given Vatican Two’s abandonment of the principle, “Error has no rights,” the Pope is saying that the church is committed to protecting the rights and the welfare of all humans on earth, whether or not all believe that they need churchly justifications for those protections. It is proper for believers in any religion to affirm that their faith justifies benign concern for every human neighbor, and in this disposition they are implicit allies of the human rights movement. Impropriety, contradiction, and danger to the latter enter when the believer neglects or denies the humanity-wide affirmations of the particular faith. And, since the particular wins out over the humanistic in many an empirical political struggle between subnational and international religious communities, religious leaders are regularly subject to the accusation: your religion functions as divisive chauvinism. It functions so inside religious organizations, as many of these essays illustrate. As the Byrnes essay documents in detail for Slovakia, Hungary, and Romania, “we are still faced with a local element of the transnational Church that continues to divide itself institutionally, linguistically, and pastorally along ethnic lines. We are faced, in other words, with a church that is at least as much an arena of ethnic conflict as it is an instrument of ethnic reconciliation.”11 Illustrations from Rwanda, Ireland, South Africa, Bosnia, and the United States abound. Some of my American colleagues may resent the inclusion of the U.S. in this list, for the reputation our country likes to promote on the world stage is of a country born e pluribus unum. American religious bodies that proclaim a welcome to all persons without distinctions may be keeping faith with their fundamental charters. But any empirical survey of the American religious scene turns up a profusion of segregation of believers by race, class, and moral status, making their internal politics both a reflection of external

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secular politics and a contradiction to the human rights embodied in many secular law codes. To put it bluntly: internal American churches are full of tensions between their “familiar” and their “strange” members. The same must be said of internal civic culture of American society generally. Empirically speaking, it is true, as Louis Henkin says, that religious communities often fail to show “respect for the stranger.”12 But similar disrespect can be found in many a nook and cranny of secular American society: look only to the treatment of illegal immigrants by the Immigration and Naturalization Service, and look next at the treatment of two million imprisoned Americans currently deprived of many a legal right. The rights-saturated language of American political ideology does not always serve to secure those rights, else there would have been no need for a Martin Luther King, Jr. to recruit churches to the cause of improving on government’s observance of standards long ago writ large in the Declaration of Independence. In short, in language and in action, religion and human rights need each other. Deficiency measured by standards of the one must sometimes call attention to analagous standards proclaimed but neglected in the behavior of the other. Far back in the Jewish and Christian traditions is divine respect for “the stranger.”13 In spite of these, their normative precedents, the ghost of ethnic and class-conscious churches still haunt many an American congregation of members whose grandparents were immigrants and poor. Open and subtle discrimination in favor of “our kind” operates effectively to discourage many a stranger from feeling welcome in such congregations. Henkin is right in suggesting that, for concrete experience of human rights, secular civil society in America is sometimes a more welcoming place for strangers than are the churches, whatever may be their universalistic claims.14 But the reverse exception also prevails. A sociologist might observe that no society fully institutionalizes all of its values. The principle applies to secular and religious society alike. To be sure, among the group rights that ought to be accorded any community is the right to put some limits and conditions on group membership. But the right to exclude remains in serious tension with the obligation to include; and for effecting justice in the midst of this tension, assertions of religious belief and assertions of universal human rights need the discipline of each other. If this is so, insofar as each proclaims a form of ethics applicable to the relations of all people, religious advocates and human rights advocates have no license to declare independence from each other. Part of the genius of leaders of the 1955–1968 American Civil Rights Movement was their ability to combine perspectives drawn from the Bible and the Bill of Rights. In such combinations, the meanings of both sources of social justice got mutually clarified and more truly enacted into law and practice. All of this is to say that the struggle for a genuinely humanistic ethic needs to go on everywhere and in the politics of every human collectivity. As human

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organizations, the churches are as political as any other organizations. By their own standards they are as liable to violate a humanistic ethic as governments are liable to violate humanistic legal rights. We would have more searching for collaboration between religion and human rights advocates if both sides acknowledged how far short their respective societies fall in practicing what they preach. Nothing works so well in democratic politics as self-criticism; nothing, so badly, as self-righteousness. Religious leaders, above all, should know that truth.

endnotes 1. Fautre´, chapter 13, 429. 2. In a lecture, “Human Rights: From Inspiration to Impact,” Columbia University School of Law, February 27, 2001. 3. Krajewski, chapter 17, 493. 4. Goeckel, chapter 16. 5. Hanover Presbytery, The Memorial of Hanover Presbytery, in H. Shelton Smith, Robert T. Handy, and Lefferts A. Loetscher (eds.), American Christianity: An Historical Interpretation with Representative Documents Vol. 1, 444–5 (New York: Charles Scribner’s Sons, 1960). Italics in original. 6. The phrase is Max Weber’s, who remarked that he was not religiously musical. There are many indications in his writings that Madison was closer in personal belief to orthodox Protestant Christianity than were many of his Deist colleagues like Thomas Jefferson. 7. Memorial and Remonstrance in Anson Phelps Stokes (ed.), Church and State in the United States 57 (New York: Harper and Row, 1964). Italics in original. 8. Krajewski, chapter 17, 492. 9. Byrnes, chapter 15, 458. 10. Ibid. 465. Italics in original. 11. Ibid. 467. 12. Louis Henkin, The Age of Rights 186 (New York: Columbia University Press, 1990). 13. Just to cite some obvious examples, cf. the law codes of Israel regarding the ger, the books of Ruth and Jonah, the frequent positive encounters of Jesus with persons of marginal status in his society, and the writings of Paul with their tribute to new Christian congregations composed of “not many wise . . . powerful . . . of noble birth” (I Corinthians 1:26). 14. Henkin, above n. 12.

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Aaland Island Case, 259 Ad hoc/extra-conventional monitoring, 149–155, 182n72, 183n76. See also UN Special Rapporteur on Religious Intolerance Administrative discrimination/repression, 46–49. See also State differential treatment Advisory Panel of Experts on Religion (OSCE), 242–243, 250n69 Aetherius Society, 60–61 Affirmative measures. See Positive measures Albania, 16, 67, 122n31 Aleksii II, Patriarch, 10–11, 302, 303 Alevizopoulos, Antonios, 381 Alfredsson, Gudmundur, 163–164 Althausen, Johannes, 486n7 Althusius, John, 272 American Evangelicals, 59, 72. See also Western Christian missionaries

American Prosperity theology, 69, 84n21 Amish people, 221n85 Amor, Abdelfattah, 135, 140, 152. See also UN Special Rapporteur on Religious Intolerance Ananda Marga, 44 Anglicanism, 414, 419, 440 An-Na’im, Abdullahi, 187n138, 512 Anticolonialism, 259–260, 266 Anticommunism, 194, 217n5, 231 Anticult movement: defined, 79; and new religion membership, 59; and parliamentary commissions on cults/ sects, 370, 375–376, 378, 421, 422, 423; Western, 65, 84n15, 385n6. See also New religions, prejudice against Anti-Semitism, 85n29, 494, 496–497, 500–501, 502 Anthroposophic Society, 425 Aquinas, Thomas, 131 Arab Charter on Human Rights, 117n1

522 in d e x Arangio-Ruiz, Gaetano, 260 Arieh Hollis Waldman v. Canada, 156 Armed forces. See Military contexts Armenia, 69, 74–75, 83n13, 85n30 Army chaplaincy, 354–355 Arrowsmith v. United Kingdom, 197 Assemblies of God, 434n37 Association of nationalism with traditional churches, 11, 298; Armenia, 74–75, 83n13; Bulgaria, 17, 317; and new religions, 74–75, 76, 85n30; Poland, 17, 445, 460, 495–496; and political legitimacy, 17, 39; and religious intolerance/discrimination, 2, 39, 74–76, 77, 139; and religious response types, 70–71, 72; resistance to, 40–41, 445; Romania, 468; Russia, 18, 300–304, 310–311, 313n12; and sacred sites, 301–302, 303, 307–309, 315n32; Slovakia, 464–465; Ukraine, 305–306 Atheism, 71–72; official, 2, 3, 16, 90 Aumism, 61, 82–83n5 Aum Shinrikyo, 77, 83nn5,9 Auschwitz-Birkenau Museum, 505–506 Austria, 47, 200, 379 Autonomy, 13–14, 28n47. See also State interference vs. internal autonomy Babych, Valerii, 315n33 Baha’i, 36, 40, 423 Baptist Church, 256, 310, 356, 357, 434n37. See also Protestant churches Barker, Eileen, 55n46 Bartoszewskii, Władysław, 505 Behnk, Wolfgang, 372 Belarus, 300, 303 Belgium, 20, 408–429; and church-state agreement systems, 394; constitutionalism, 409–412, 428, 431nn1,5; minority religious claims, 426–429; parliamentary commission on cults/sects, 369–370, 376, 377–378, 379, 419–425; state recognition, 412–415, 431nn7–10; state support for religious communities, 415–419, 427, 428–429

Belief groups, 34, 39–40, 52n2 Belief-related rights, 35, 51, 52n4. See also Human rights; Religious minority rights Believers-not-belongers, 73 Belongers-not-believers, 72, 85n26 Benvenisti, Eyal, 206 Berger, Maria, 280, 378–379 Berman, Harold, 19, 20 Berman, Nathaniel, 259, 260 Bernard Ominayak, Chief of the Lubicon Lake band v. Canada, 156 Bernstein, Carl, 458 Bhagwan Rajneesh (Osho), 61 Biełecki, Czesław, 498–499 Bilateral monitoring, 133, 161, 162–164, 185–186n119. See also Unilateral monitoring Birlenberg, Jutta, 375 Blasphemy laws, 37 Bloed, Arie, 162, 226 Błon´ski, Jan, 496 Bognador, Vernon, 2 Bosnia, 41, 84n17 Boyle, Kevin, 37, 39, 134, 175, 189n164, 190n181 Brahma Kumaris, 61 Brezhnev, Leonid, 245n12 Brinkhof v. the Netherlands, 111–112, 127n99 Britain, 37, 197, 440 Buchheit, Lee, 290–291n133 Budapest Summit Declaration. See OSCE Budapest Summit Declaration Buddhism: Europe, 82n4, 349, 414, 434n37; Tibetan, 40, 41, 49–50. See also Tibetan Buddhism Buergenthal, Thomas, 151–152, 227 Bulgaria, 18–19, 208–209, 316–340; administrative discrimination/repression, 48; association of nationalism with traditional churches, 17, 317; Communist era, 326–333, 342n23; constitutionalism, 9, 143–145, 180–

index 181nn44,46, 317, 327, 336, 339, 341n6, 343n52; education, 323–324, 328–329, 332, 338, 343n43; Hasan & Chaush v. Bulgaria, 19, 208–209, 210, 220n74, 339–340; limitations on religious behavior, 208–209, 220n74; linguistic minorities, 180n44, 319, 322–323, 330– 331, 338, 341n13, 343nn47,50; literacy, 340n2; minority political participation, 329–330, 336–337; name-change campaign, 328, 331–333, 335–336, 343nn46,48; nationalism, 39, 331–332, 342n38; nation-building, 317, 318–320; new religions, 48, 83n10; number of ethnic minorities in, 2; political split in, 85n28; population exchanges, 324–325, 328, 342n27; post-communist period, 334–340, 343nn47,48,50,52; regional context, 316–317; state interference vs. internal autonomy, 144, 180–181n44, 208–209, 320–322; totalitarianism, 253–254, 255, 282n10 Bulgarian Muslims, 18; and constitutionalism, 143–144; conversion campaigns, 326; demographics, 2, 317, 340n2; and education, 323, 328–329, 338, 343n50; Hasan & Chaush v. Bulgaria, 19, 208–209, 210, 220n74, 339–340; internal autonomy, 180– 181n46, 320–322; literacy, 340n2; name-change campaign, 328, 331–333, 335–336, 343nn46,48; and nationbuilding, 320; political participation, 329–330, 336–337; population exchanges, 325, 328, 342n27; postcommunist period, 335–336, 338–339, 343nn48,50 Bulgarian Orthodox Church, 253, 317, 319, 333 Buscarini v. San Marino, 212–213 Bush, George, 231–232 Cairo Declaration on Human Rights, 117n1, 402 Canada, 184n94; education, 156; native

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peoples, 40, 120nn19,20, 156; secessionism, 266–267, 270–271 Canea Catholic Church v. Greece, 220n72 Capotorti, Francesco, 174, 251 Carnegie Commission Report on Preventing Deadly Conflict, 141 Case of Silver and Others, 53n12 Cassesse, Antonio, 260, 284n55 Catholic Church, 455–474; Belarus, 303; Belgium, 394, 411, 412, 413, 417– 418, 419; Bulgaria, 333; challenges for, 68, 84nn18,19, 459–460; China, 485n3; and church-state agreement systems, 92, 105, 124n67, 393–395, 397, 404n31, 461, 462; communist era, 17, 67, 72, 443, 459, 460–461; conservatism in Eastern Europe, 68; demographic position of, 100; and European vision of John Paul II, 457–459, 462–463, 465, 471, 475n19, 517–518; Germany, 380, 392, 393– 394; Hungary, 19, 346, 351, 353, 355, 356, 357, 359, 361n25; institutional structure of, 359, 456–457, 473–474, 477; and interfaith dialogue, 23–24, 141, 180n37; Italy, 273, 394, 395, 404n31, 434n37; and Orthodox churches, 470, 473, 476n40; and parliamentary commissions on cults/ sects, 421, 422; and prejudice against new religions, 373–374, 377, 422; recognition of religious freedom, 90, 99–100, 122nn35,36; and relative accommodation, 17; Romania, 22, 467– 471, 473, 476nn28,29,39; Russia, 256; sexual abuse in, 78; Slovakia, 22, 255, 464–467, 472–473, 476nn28,29; Spain, 113–114, 397; on sphere sovereignty, 273–274; as transnational actor, 22–23, 92, 394. See also Catholic-Jewish dialogue in Poland; Polish Catholic Church; Polish Greek Catholic Church; Traditional churches; specific countries

524 in d ex Catholic-Jewish dialogue in Poland, 490–507; accomplishments of, 504– 507; and anti-Semitism, 494, 496– 497, 498–499, 500–501, 502; and association of nationalism with traditional churches, 495–496; and identity issues, 490–492, 512, 517; and Jewish communists, 497–498; meaning of, 492–493; overview of, 493– 495; and Polish Catholic Church, 499–504, 507, 507n1; and Shoah, 493, 496, 499, 504, 505–506 Cavalli, F., 373–374 CCMM (Center for Documentation, Education and Actions Against Mental Manipulation), 376 CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), 136, 167 Center for Documentation, Education and Actions Against Mental Manipulation (CCMM), 376 CERD (International Convention on the Elimination of All Forms of Racial Discrimination), 36, 53n15 Chaplaincy, 354–355 Charismatic Renewal, 421, 422 Charlesworth, Hilary, 25n13 Charter of the United Nations, 6, 13; and ad hoc/extra-conventional monitoring, 182n72; and external monitoring, 146; nondiscrimination as central to, 118n7; and nongovernmental organizations, 160; and Organization for Security and Cooperation in Europe, 246n24; on self-determination, 16 Chayes, Abram, 170 Chayes, Antonia Handler, 170 Children of God. See The Family Children of Sects (Eimuth), 378 China: administrative discrimination/repression, 48; Catholic Church, 485n3; comprehensive discrimination/repression, 49–50, 57n86; Falun

Gong, 50, 57n86, 81, 247n47; and unilateral monitoring, 187n130; Western Christian missionaries, 40 Christian Right (United States), 187n143, 188n145 Chrostowski, Waldemar, 504, 506–507 Churches as transnational actors, 21 Church of Jesus Christ of Latter-Day Saints. See Mormonism Church of Scientology, 40; basis of beliefs, 61; Belgium, 414; Germany, 440; leadership, 83n12; membership, 59; and parliamentary commissions on cults/sects, 44, 45, 367; proselytism, 60, 69 Church of the Last Testament, 63, 85n30 Church-state agreement systems, 92, 391–402; Germany, 392–394, 404nn22,25; Italy, 104–105, 394–395, 404nn30,31; Poland, 461, 462; Spain, 20, 104–105, 124nn66,67, 396–402 Church-state relationships: consensus on, 511–512; diversity of, 3, 389–391; historical background, 89; Hungary, 17, 347–348; and Polish Greek Catholic Church, 443–445, 452n15; and public order, 88; religious organizations on, 99–100; and root causes of religious intolerance/discrimination, 139; totalitarianism, 253–258, 254–256, 279, 282–283nn19,31; types of, 16–17. See also Church-state agreement systems; Establishment of religion; Sphere sovereignty; State differential treatment; State interference vs. internal autonomy; State recognition; State support for religious communities CIS (Community of Independent States), 162 Civil rights movement, 482, 488n23, 516, 519 Civil society, 21, 140–141; defined, 438– 439; and nationalism, 22, 450; and Polish Greek Catholic Church, 22,

index 442, 445–450, 453nn19,21,22; and private sphere, 439–440 Clapham, Andrew, 136 Clinton, Bill, 164 Collective rights. See Group rights Commission for Dialogue with Judaism (Polish Catholic Church), 504–505 Commission for Religious Relations with Jews (Catholic Church), 141 Commission on Human Rights, 148–150, 182n72, 1552 Communist collapse: Catholic Church role in, 458; and constitutional protections, 142–143; and Council of Europe membership, 192–193; disappointment for human rights, 1, 2–3, 22, 440–441, 449–451; and Organization for Security and Co-operation in Europe, 223–224, 233; and proselytism, 42, 59–60, 69; and religious nongovernmental international organizations, 484–485; and secessionism, 252–253 Communist era: belongers-not-believers, 72; Bulgaria, 326–333, 342n23; church-state relationships, 16–17; civil society, 439; and compensation for past discrimination, 116; and constitutionalism, 142–143, 453–454n25; and interfaith dialogue, 141; and monopoly of truth beliefs, 65–66; nationalism, 331–332, 342n38; new religions during, 59, 82n4, 83n11; and Polish Greek Catholic Church, 443–444; and self-determination, 262; and state differential treatment, 90–91, 104, 124nn60,62; traditional church roles during, 17, 67, 72, 443, 459, 460–461. See also Religious nongovernmental international organizations Communitarian critique, 6–7, 11, 12, 13– 14, 28n47 Community of Independent States (CIS), 162 Complaint procedures: Committee

525

against Torture, 184n95; and constitutionalism, 145; European Court of Human Rights, 194, 217n7; Human Rights Committee, 121n22, 150–151, 155, 156–157, 183n89; and nongovernmental organizations, 157, 184n96; overview of, 147–148; UN Special Rapporteur on Religious Intolerance, 151 Comprehensive discrimination/repression, 49–51. See also Religious intolerance/discrimination Concordat tradition, 20, 393–395, 461, 462. See also Church-state agreement systems Conference on Security and Cooperation in Europe (CSCE), 181n59. See also Organization for Security and Co-operation in Europe; OSCE Copenhagen Document Conscientious objection: European Court of Human Rights on, 197, 210– 212, 220n61, 221nn83,88; Human Rights Committee on, 47, 93–94, 101, 111–112, 156, 183n91, 189n168; lack of consensus on, 173, 189n168; Organization for Security and Co-operation in Europe on, 235; and state differential treatment, 47–48, 93–94, 101, 111– 112, 126–127n99 Consociational model, 265–266, 288nn106,107 Constitutionalism, 142–145, 181n56; Belgium, 409–412, 428, 431nn1,5; Bulgaria, 9, 143–145, 180–181nn44,46, 317, 327, 336, 339, 341n6, 343n52; and church-state agreement system, 392; and communist era, 142–143, 453– 454n25; Hungary, 19, 254–255, 282– 283n19, 349–350, 353–355, 356; and international human rights standards, 5; Poland, 451, 453–454n25; and proselytism, 219n45; and self-determination, 263–264, 286–287nn83,85,86,90,92,96, 101; South Africa, 257–258, 287n96

526 in d e x Consumerists, 73 Continuing attenders, 70, 85n25 Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 184n95 Convention for the Protection of Human Rights and Fundamental Freedoms. See European Convention for the Protection of Human Rights and Fundamental Freedoms Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 136, 167 Convention on the Prevention and Punishment of the Crime of Genocide, 327 Copeland, Kenneth, 69 Copenhagen Document. See OSCE Copenhagen Document Coriel and Aurik, 158 Corrymeela Community (Northern Ireland), 141 Cottrell Report, 366, 367–369 Council of Europe: and bilateral monitoring, 162; Committee of Ministers, 216n3; and constitutionalism, 144, 145; membership, 157, 163, 192–193, 194; and minority rights, 158; topical/ thematic meetings, 249n64. See also European Framework Convention for the Protection of National Minorities Crawford, James, 191n190 CRC (International Covenant on the Rights of the Child), 167, 187n139 Criminal law/behavior: and incitement to hatred, 357–358; and new religions, 76–77, 86n31, 125n77, 421; and proselytism, 38, 42, 49, 207, 279; and sphere sovereignty, 279–280 Croatia, sphere sovereignty, 276–277 CSCE. See Conference on Security and Cooperation in Europe Cuba, 168 Cults. See Anticult movement; New re-

ligions; New religions, prejudice against; Parliamentary commissions on cults/sects Cultural assets, 115 Czajkowski, Michal, 506 Czechoslovakia, 269, 464. See also Czech Republic; Slovakia Czech Republic, 80, 273, 459 Czirjak, Arpad, 476n39 Damanhur, 61 Darby v. Sweden, 199 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), 261 Decolonization. See Anticolonialism DEID. See UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief Deism, 520n6 De la Hera, Alberto, 394 Deville´, Rick, 422 Dimitrov, Georgi, 329 Dinstein, Yoram, 134, 135, 275, 289n115 Displaced residents, 34 Doehring, Karl, 270, 289n114 Dooyeweerd, Herman, 272, 274, 289n114 Drahomanov, Mykhailo, 305 Durham, Cole, 3, 243 Dvorkin, Alexander, 371 Eastern Orthodox Churches. See Orthodox churches ECHR. See European Convention for the Protection of Human Rights and Fundamental Freedoms ECOSOC (UN Economic and Social Council), 148, 149, 150 Education, 196; Albania, 122n31; Belgium, 412, 426; Bulgaria, 323–324, 328–329, 332, 338, 343n43; Canada, 156; Hungary, 350–351; Satmar case, 432n21 Efstratiou v. Greece, 210–211, 212, 221n83

index Egypt, 36 Eide, Asbjorn, 14 Eimuth, Kurt-Helmuth, 378 Employment Division, Department of Human Resources of Oregon v. Smith, 212 Employment Division v. Smith, 166 Endorsed/established churches, 17. See also Establishment of religion; Traditional churches Enquete commissions. See Parliamentary commissions on cults/sects Ermacora, F., 13 Espiell, He´ctor, 285–286 Established churches. See Establishment of religion; Traditional churches Establishment of religion: acceptability of, 11, 101, 123n53; and secessionism, 253; and state differential treatment, 100–102, 123nn49,53; and unilateral monitoring, 187n141. See also Church-state relationships; State differential treatment; Traditional churches Estonia, 304, 489n33 Ethnicity: and association of nationalism with traditional churches, 39; definitions of, 54n30; Slovakian conflict, 465–467, 472–473, 476nn28,29; and sphere sovereignty, 274–275. See also Self-determination Ethnic minorities, numbers of, 2, 17–18, 66 Ethno-religious groups, 34, 39–40, 52n2 European Commission for Democracy through Law, 159 European Commission of Human Rights: on conscientious objection, 93–94, 101, 126–127n99; establishment of, 194; on establishment of religion, 102, 123n53; on group rights, 121n22; on limitations on religious behavior, 238; on regulation of ideas, 36–37; on state differential treatment, 90, 112, 126–127n99

527

European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 15; and anticommunism, 194, 217n5; Bulgarian ratification, 337; and communist collapse, 192–193; and constitutionalism, 144, 145; and Council of Europe membership, 157; and criminal law, 77; establishment of, 181n49, 192, 193–194; on establishment of religion, 101, 102, 123n53; and European Union, 391; and external monitoring legitimacy, 147; importance of, 6; and Islam, 402; and limitations on religious behavior, 107, 125n75, 237, 238, 239; on minority rights, 120–121n21, 158; nondiscrimination as central to, 94, 119n9; and nongovernmental organizations, 160; and Organization for Security and Co-operation in Europe, 233, 234, 246–247n31; overlapping jurisdictions, 158; Preamble, 217n5; on religious freedom, 90, 125nn70,72, 196–199; and Spain, 390, 403n7; on state differential treatment, 107, 112. See also European Commission of Human Rights; European Court of Human Rights European Court of Human Rights, 19, 192–216; complaint procedures, 194, 217n7; on conscientious objection, 197, 210–212, 220n61, 221nn83,88; conservatism of, 15, 199–200, 206–207, 220n69, 345; and constitutionalism, 144, 145; establishment of, 194–195; and European Convention for the Protection of Human Rights and Fundamental Freedoms provisions, 196–199; and external monitoring legitimacy, 147; impact documentation, 243, 250n70; and limitations on religious behavior, 53n12, 106–108, 125n80, 198–199, 207–210, 214, 238, 248n49, 339–340; margin of appreciation doctrine, 195–196, 198–199,

528 in d e x European Court of Human Rights (continued ) 206–207, 215; on nondiscrimination, 119n11; and objective vs. subjective criteria, 210–216, 221nn83,85,87,88; on proselytism, 38, 49; on state differential treatment, 90, 106–108; on state recognition, 220n72 European Framework Convention for the Protection of National Minorities, 14; and bilateral monitoring, 162; and constitutionalism, 144; criticisms of, 159, 185n109; establishment of, 159, 185n108; on incitement to hatred, 125n82; on minority rights, 239– 240, 249n54; on positive measures, 175, 190n178; on self-determination, 261–262, 268 European Union: and European Convention for the Protection of Human Rights and Fundamental Freedoms, 391; and international character of human rights, 51; membership, 145, 157, 158, 181n56, 185n105; and parliamentary commissions on cults/sects, 280, 293n171, 378–379 Evangelical churches. See Protestant churches Evangelical Church in Germany (EKD), 483, 489n30 Evangelical Lutheran State Church (Bavaria), 371–372 Evangelism. See Proselytism Evans, Malcolm D., 198, 204–205 Evatt, Elizabeth, 177 Experts Panel. See Advisory Panel of Experts on Religion External monitoring, 15, 133–177; ad hoc/extra-conventional, 149–155; bilateral approaches, 133, 161, 162–164, 185–186n119; and Bulgaria, 332–333; complaint procedures, 147–148; and constitutionalism, 142–145, 180– 181nn44,46,56; as cooperative process, 170–171, 188n155; institutional defi-

ciencies, 176–177, 191nn187,190; and internal responses, 139–145; and international relations theory, 169; judicial vs. quasi-judicial, 182n70; and lack of consensus on international standards, 171, 173–175; legitimacy of, 146–147, 151–152, 183n76, 226, 245nn12,14,16; and nongovernmental organizations, 160–161; and overlapping jurisdictions, 158, 184n101; and private sphere, 136–137; regional organizations, 157–160; and religious institutional roles, 139–142; and root causes of religious intolerance/discrimination, 138–139, 168–169; and state differential treatment, 111–112, 156, 184n94; and types of religious intolerance/discrimination, 135–138. See also International human rights instruments; Unilateral monitoring; specific instruments and organizations Extra-conventional monitoring. See Ad hoc/extra-conventional monitoring Faith Church, 357 Falun Gong, 50, 57n86, 81, 247n47 The Family (Children of God), 59, 60, 61, 75, 83n12, 367 Fautre´, Willy, 370 Federations of religious institutions, 104–105, 124n66, 398–399 Ferrari, Silvio, 396 Filaret, Metropolitan (Denysenko), 305, 306, 307, 308, 309 Financial support. See State support for religious communities Finland, 126–127n99 Flag salutes, 212 Fo¨ldesi, Tama´s, 17–18 Foreign Assistance Act (1973) (United States), 186n129 Foreign Assistance Act (1974) (United States), 186n129 Former Czechoslovakia, 17. See also Czech Republic; Slovakia

index Former Soviet Union, 17, 252. See also Russia; Soviet Union; Ukraine Former Yugoslavia: association of nationalism with traditional churches, 17; religious human rights advocacy, 141; and secessionism, 269, 271, 291n135; and self-determination, 252, 262–265, 286–287nn83–86,90; and UN Special Rapporteurs, 182n73. See also specific countries Forum internum vs. forum externum, 137–138, 237 Fourteen Points Address (Wilson), 284n56 Framework Convention for the Protection of National Minorities. See European Framework Convention for the Protection of National Minorities France: objective vs. subjective criteria, 213–214; parliamentary commission on cults/sects, 42–44, 86n37; prejudice against new religions, 372–373, 376, 379–380; private sphere, 439– 440 Freedom of expression: and regulation of ideas, 36–37; and religious behavior, 197, 198, 212, 218n20, 221n85 Freedom of religion. See Religious freedom Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities (Durham), 243 Friedlander, Robert, 284n56 Fuhrmann, Willi, 195 Fukuyama, Francis, 1 Fundamentalism, 5; and globalization, 41, 55n43; and prejudice against new religions, 373, 387n38; and religious intolerance/discrimination, 178n10; and secularism, 25n16; term, 55n43 Funding. See State support for religious communities Ga˛decki, Stanisław, 504 Gaja, Giorgio, 158

529

Ganev, Vanelin, 144 Garrison, William Lloyd, 516 GDR (German Democratic Republic). See Religious nongovernmental international organizations Gellner, Ernest, 438 Genocide, 357–358 German Democratic Republic (GDR). See Religious nongovernmental international organizations German parliamentary commission on cults/sects, 20; and anticult movement, 375–376; establishment of, 386n19; findings, 44–45, 56n66, 376, 377; and former members of new religions, 374; government responses, 379, 380; and media, 380–381; membership, 370, 386n20; and traditional church, 56n64 Germany: church-state agreement system, 392–394, 404nn22,25; churchstate agreement systems, 392–394, 404nn22,25; new religions, 371–372, 440; religious nongovernmental organizations in, 23; reunification of, 269; state support for religious communities, 430. See also German parliamentary commission on cults/sects; Religious nongovernmental international organizations Glazer, Nathan, 6, 7 Globalization: and pluralism, 9; and proliferation of new religions, 41, 55nn43,46,65; and proselytism, 60 Glover, Audrey, 226, 245n14 Gol, Jean, 413 Goldstein, Maurice, 505 Gorbachev, Mikhail, 231, 299, 303, 304 Grant Tadman et al v. Canada, 184n94 Greece: administrative discrimination/ repression, 48–49; conscientious objection, 210–211, 221n88; limitations on religious behavior, 107–108, 125n80, 207, 209, 220n72; Manoussakis v. Greece, 106–108, 125n80, 207,

530 in d e x Greece (continued ) 215, 220n72; prejudice against new religions, 381; proselytism, 38, 42, 49, 207; state differential treatment, 90. See also Kokkinakis v. Greece Greek Catholic Church: Belarus, 303; origins of, 441; Romania, 467, 468– 470, 476n39; Slovakia, 255; Ukraine, 298, 305–306. See also Polish Greek Catholic Church Greek Orthodox Church: Albania, 76; demographic position of, 100; Greece, 90, 107, 220n72, 381; Romania, 22; Ukraine, 17 Groen van Prinsterer, Guillaume, 272 Group rights: and complaint procedures, 121n22; defined, 289n115; and internal restrictions, 9, 11, 13–14, 27n35, 37–38, 136, 174; lack of consensus on, 52–53n8, 173–174, 248n53; and nondiscrimination, 6–8, 11; and religious freedom, 124–125n70; and self-determination, 53n20, 267, 289nn115,118. See also Complaint procedures Gunn, Jeremy, 204, 220n61 Gutman, Israel, 505 Haack, Friedrich Wilhelm, 372 Hagin, Kenneth, 69 Hallam, David, 424 “Happy Clappies”, 69, 84n20 Hare Krishna. See ISKON Hasan & Chaush v. Bulgaria, 19, 208– 209, 210, 220n74, 339–340 Hazewinkel, Harm J., 241–242 HCNM (High Commissioner for National Minorities), 224–225 Heaven’s Gate, 77 Helsinki Accords, 223, 229–230, 246nn24,26; and nongovernmental organizations, 160; and Organization for Security and Co-operation in Europe establishment, 181n59; and security linkage, 227, 229; on self-

determination, 260–261. See also Organization for Security and Cooperation in Europe Helsinki Process. See Organization for Security and Co-operation in Europe Henkin, Louis, 142, 146, 169, 226, 245n16, 519 Heunis, Johan, 290n131 High Commissioner for Human Rights, 149, 154–155, 167, 182n68 High Commissioner for National Minorities (HCNM), 224–225 Hinduism, 349 “Historic” churches, 359. See also Traditional churches; specific churches Historic injustices, 8 Hoffman v. Austria, 200 Hollerbach, Alexander, 392 Holocaust. See Shoah Holy See. See Catholic Church Holy wars, 138, 164 Hostile separation/persecution, 17 Humanitarian aid, 69, 84n19 Human rights: importance of, 140; increased prominence of, 4, 5; international character of, 51; religious disengagement with, 25n13, 141–142 Human Rights Committee, 13, 155–157; on acceptable state differential treatment, 95; on changing religions, 173; complaint procedures, 121n22, 150– 151, 155, 156–157, 183n89; on conscientious objection, 47, 93–94, 101, 111– 112, 156, 183n91, 189n168; and consensus on human rights standards, 176; effectiveness of, 155–157, 184nn94–96; and establishment of religion, 101–102, 123n49; and external monitoring legitimacy, 147; institutional deficiencies, 191n187; on Islamic conflicts with international human rights standards, 190n181; and limitations on religious behavior, 35– 36, 108, 125n75; on nondiscrimination, 119nn10,11; and nongovernmen-

index tal organizations, 157, 160; overlapping jurisdictions, 158, 184n101; on positive measures, 13, 174; on religious minority rights, 95; U.S. lack of support for, 167 Hungarian minorities: Romania, 467– 471, 476nn28,29,35,39; Slovakia, 22, 145, 464–467, 472–473 Hungarian Orthodox Church, 356 Hungary, 19, 345–360; army chaplaincy, 354–355; believers-not-belongers, 73; bilateral monitoring, 162–163; church-state relationships, 17, 347– 348; constitutionalism, 19, 254–255, 282–283n19, 349–350, 353–355, 356; differences among religious groups, 352, 358; historical context, 351–352, 361n25; incitement to hatred, 357– 358; new religions, 69, 347, 349, 357, 359–360, 362n63; positive measures, 348; property restitution, 353–354; religious broadcasting, 355–356; religious demographics, 346–347; religious registration, 254–255, 282– 283n19, 347, 348–350, 352–353, 361n33; state support for religious communities, 114, 356–357; traditional church, 346, 359, 459 Huntington, Samuel, 2, 4, 24–25nn8,9, 478 ICCPR. See International Covenant on Civil and Political Rights ICESCR. See International Covenant on Economic, Social and Cultural Rights Identity protection, 96, 120nn18–20 Ignorance, 138 Ikor, Roger, 376 Immigration, 7–8 Incitement to hatred, 36, 125n82, 357– 358 INFORM (Information Network Focus on Religious Movements), 81, 86n41

531

Inter-American Commission on Human Rights, overlapping jurisdictions, 184n101 Interfaith dialogue, 21, 23–24, 141, 178n37. See also Catholic-Jewish dialogue in Poland Internal restrictions, 9, 11, 13–14, 27n35, 37–38, 136, 174 International Bill of Rights, 6, 173 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 36, 53n15 International Council at the AuschwitzBirkenau Museum, 505–506 International Court of Justice, 118n7, 120n13, 122n31, 268–269 International Covenant on Civil and Political Rights (ICCPR), 6; Bulgarian participation, 327, 337, 342n25; on changing religions, 173; complaint procedures, 150–151, 155, 183nn89,96; and conscientious objection, 47, 111– 112; on definition of religious minority, 189n70; on establishment of religion, 101; and establishment of religion, 11; and external monitoring legitimacy, 146, 147; and group rights, 11, 13, 37, 52–53nn8,20, 173– 174; on incitement to hatred, 125n82, 357–358; and International Religious Freedom Act, 187n134; and liberalism, 13–14; and limitations on religious behavior, 35, 36, 107, 237, 238, 239; on nondiscrimination, 94, 118n7; and nongovernmental organizations, 160; and Organization for Security and Co-operation in Europe, 230, 232, 233, 234, 246nn24,31; and parliamentary commissions on cults/sects, 46; on regulation of ideas, 36; on religious freedom, 132; on religious minority rights, 95; on self-determination, 258, 260, 285n66; and state differential treatment, 93, 102, 107; U.S. lack

532 in d e x International Covenant on Civil and Political Rights (continued ) of support for, 187n139. See also Human Rights Committee International Covenant on Economic, Social and Cultural Rights (ICESCR), 6; on group rights, 53n20; nondiscrimination as central to, 118n7; on self-determination, 260; U.S. lack of support for, 167, 187n139 International Covenant on the Rights of the Child (CRC), 167, 187n139 International human rights instruments, 14–15, 35; and establishment of religion, 11; and group rights, 124– 125n70; institutional deficiencies, 176–177, 191nn187,190; Islamic, 117n1, 402; and nonreligious beliefs, 52n4; overlapping jurisdictions, 158, 184n101; religious nondiscrimination as central to, 87–88, 94, 117n1, 118n7, 119n9; and self-determination, 260– 262; table, 172; U.S. lack of support for, 166, 167, 169, 187nn139,143, 188n144; wide acceptance of, 5. See also External monitoring; International human rights standards; specific instruments International human rights standards: as belief-related rights, 35; and communitarian critiques, 6–7, 11, 12, 13–14; growing consensus on, 175–176, 191n185; importance of, 5–6; Islamic conflicts with, 173, 175, 189nn64,65, 190n181; lack of consensus on, 171, 173–175; reconciliation with religious values, 173, 175, 187n138, 189nn164,165, 190n181; religious freedom, 191n183. See also International human rights instruments International relations theory, 169 International Religious Freedom Act (United States), 117n3, 133, 164–166, 187nn130,134,136; and establishment of religion, 187n141; weaknesses of, 52, 167, 188nn145,146

International Security Assistance and Arms Export Control Act (1976) (United States), 186n129 International Society for Krishna Consciousness. See ISKON Inter-Religious Council (former Yugoslavia), 141 Introvigne, Massimo, 42–44, 372–373, 375, 376 Iran, 40, 49 Iraq, 168 Ireland, 273 ISKON (International Society for Krishna Consciousness): attacks on, 74–75, 83n13; basis of beliefs, 60, 61; communication system, 64–65, 83n13; Hungary, 357, 360; leadership, 83n12; membership, 59; and parliamentary commissions on cults/sects, 44, 367; proselytism, 60, 69 Islam: Belgium, 414, 418, 421, 427–428, 431–432n10; Bosnia, 84n17; and church-state agreement systems, 402; conflicts with international human rights standards, 173, 175, 189nn64,65, 190n181; France, 439–440; fundamentalism, 178n10; Greece, 209; Hungary, 349; international human rights instruments, 117n1, 402; Italy, 434n37; and military contexts, 197–198; Russia, 76, 313n10; Spain, 105, 398, 399, 400; and sphere sovereignty, 273; and unilateral monitoring, 168. See also Bulgarian Muslims Istanbul Summit (OSCE), 247n41 Italy: church-state agreement system, 104–105, 394–395, 404nn30,31; sphere sovereignty, 273; state support for religious communities, 357, 434n37 Jackson-Vanik Amendment (United States), 186n129 Japan, 77, 83nn5,9 Jawurek, Helmut, 385n14 Jefferson, Thomas, 520n6 Jehovah’s Witnesses: and association of

index nationalism with traditional churches, 76; Belgium, 414, 423, 426; and conscientious objection, 48, 111– 112, 126–127n99, 210–211, 221n83; and education, 426; and European Court of Human Rights conservatism, 200; history in Europe, 369, 386n15; Hungary, 347, 357; Italy, 434n37; and limitations on religious behavior, 106– 108, 207, 215; and objective vs. subjective criteria, 210–211, 212, 221n83, 88; and parliamentary commissions on cults/sects, 44, 369, 423; and prejudice against new religions, 20, 40, 48, 84n15, 373, 375–376, 387n38; and proselytism, 49; and religious registration, 255; Slovakia, 255; and state recognition, 220n72. See also Kokkinakis v. Greece Jewish Liturgical Association Cha’are Shalom ve Tsedek v. France, 213–215 John Paul II: and Catholic-Jewish dialogue in Poland, 23, 499–500, 507, 507n1; European vision of, 457–459, 462–463, 465, 471, 475n19, 517–518; importance of, 456, 460; and Orthodox churches, 470, 476n40; and prejudice against new religions, 422 John XXIII, 479 Jonestown, 367 Judaism: Belgium, 412, 413, 414, 415–416, 419; and education, 156; Germany, 380, 393, 404n25; Hungary, 19, 346– 347, 351, 354, 355, 356, 357, 359; and interfaith dialogue, 23–24, 141; Italy, 434n37; and objective vs. subjective criteria, 213–214; and parliamentary commissions on cults/sects, 423–424, 432n21; Satmar community, 421, 423– 424, 432n21; Soviet Union, 241; Spain, 398, 399, 400; tradition of civility in, 519, 520n13. See also AntiSemitism; Catholic-Jewish dialogue in Poland Judicial monitoring, 182n70

533

Kalac v. Turkey, 197–198 Kamara´s, Istva´n, 360 King, Martin Luther, Jr., 516, 519 Kirill, Metropolitan (Gundiaev), 299 Kocka, Ju¨rgen, 438–439 Kohn, Roland, 386n14 Kokkinakis v. Greece, 189n167, 200–206, 219nn43,47; and constitutionalism, 219n45; critique of, 202–206; and definitions of proselytism, 219n44; impact of, 250n70; and margin of appreciation, 207; and religious behavior, 209–210 Korey, William, 227 Kosovo, 2, 8 Kravchuk, Leonid, 305, 306–307, 308 Krishna consciousness. See ISKON Krishnaswami, Arcot, 5, 101, 103, 176, 190n183 KRSNA-Community. See ISKON Krsna-lika devi dasi (Krisztina Danka), 360 Krylova, Galina, 300 Kubina, Tadeusz, 494 Kuchma, Leonid, 306, 307, 308 Kukatha, Chandran, 27n35 Kuyper, Abraham, 272 Kwitny, Jonathan, 458 Kymlicka, Will, 6–7, 8, 11, 13–14, 27n32, 28n47, 136, 174 Laperches, Jean-Pierre, 424 Larissis v. Greece, 205 Latvia, 181n56 Law of the Russian Federation on the Freedom of Conscience and Religious Associations, 11 Lazarenko, Pavlo, 315n33 League of Nations, 12, 89–90, 132, 319 Legal status. See Religious registration; State recognition Lehtonen, Risto, 481 Lenin, V. I., 284n55 Lerner, Natan, 38 Liberal international relations theory, 169

534 in d e x Liberalism, 6–7, 11, 12, 13–14, 28n47 Lindeperg, Michele, 379 Linguistic minorities: Bulgaria, 180n44, 319, 322–323, 330–331, 338, 341n13, 343nn47,50; Canada, 156 Little, David, 132, 176 Lovelace v. Canada, 120n20, 156 Lukashenka, Aliaksandr, 303 Luther, Martin, 513 Lutheran Church: Germany, 371–372, 380; Hungary, 19, 351, 354, 355, 356, 359, 361n25; Italy, 434n37; Norway, 434n36; and religious nongovernmental international organizations, 480, 481, 482; Russia, 489n32; Slovakia, 255; Sweden, 101 Lutheran World Federation (LWF), 478, 479, 480, 481, 483, 487n16, 488– 489nn25,29 Luzhkov, Yurii, 301 LWF. See Lutheran World Federation Macedonia, 17 Madison, James, 520n6 Madrid Document. See OSCE Madrid Document Malinsky, Abraham, 424–425 Manifestations of religion. See Religious behavior; Religious behavior, limitations on Manoussakis v. Greece, 106–108, 125n80, 207, 215, 220n72 Manov, Asen, 144 Margin of appreciation doctrine, 195– 196, 198–199, 206–207, 215 Martı´n Este´banez, Maria Amor, 239–240 Martı´nez-Torro´n, Javier, 211 Marxism, 65–66 Mazowiecki, Tadeusz, 182n73, 501 Meciar, Vladimir, 145, 464, 466 Media: and prejudice against new religions, 78–79, 380–381; religious broadcasting, 355–356 Men, Alexander, 72 Mertens, Angelika, 385–386n14

Methodist Church, 356, 434n37. See also Protestant churches Michnik, Adam, 437, 449, 497 Mickiewicz, Adam, 507n1 Mikołajczyk, Mirosław, 495 Military contexts, 197–198, 205; chaplaincy, 354–355 Minnerath, Ronald, 273 Minorities: definitions, 248n53, 251–252, 261, 454n28; and religious extremism, 153. See also Minority rights; Religious minorities Minority rights: European Convention for the Protection of Human Rights and Fundamental Freedoms on, 120– 121n21, 158; historical background, 12– 13; International Covenant on Civil and Political Rights on, 13–14, 156; lack of consensus on, 248n53; Organization for Security and Cooperation in Europe on, 239–240, 249n54 “Moonies”. See Unification Church Moratilla v. Spain, 113–114 Mormonism: acceptance of, 75; and association of nationalism with traditional churches, 76; and parliamentary commissions on cults/sects, 44; and prejudice against new religions, 48, 84n15; proselytism, 69; and religious registration, 256, 434n35 Moses, David, 367 Mosler, Hermann, 289n114 Moureaux, Serge, 425 Murswiek, Dietrich, 270 Musiał, Stanisław, 506 Muslims. See Islam Muszynski, Henryk, 504 Name-change campaigns, 331–333, 335– 336, 343n46, 343n48 Namibia Case, 260 National churches. See Association of nationalism with traditional churches; Traditional churches

index National Council of Churches (United States), 479, 482 Nationalism: and civil society, 22, 450; communist era, 331–332, 342n38; and comprehensive discrimination/repression, 49–50; and decline of polyethnicity, 441–442, 449; and ethnic conflict, 464, 466; and prejudice against new religions, 46; and religious intolerance/discrimination, 39, 46, 450. See also Association of nationalism with traditional churches National Union for the Association for the Defense of the Family and the Individual (UN-ADFI) (France), 375, 376 Nations, 267, 289n118 Native peoples: Canada, 40, 120nn19,20, 156; United States, 40, 166 Navarro-Valls, Rafael, 211 Netherlands, 111–112, 158, 183n91, 241 New Age seekers, 73 New Jerusalem, 63 New religions, 10; and association of nationalism with traditional churches, 74–75, 76, 85n30; Belgium, 415; as belief groups, 34; characteristics of, 62–63, 83n7; communication systems, 64–65, 70, 83n13, 126n88; communist era, 59, 82n4, 83n11; as competition for traditional churches, 10–11, 68–70, 91, 371; and criminal law/behavior, 76–77, 86n31, 125n77, 421; diversity of, 60–62; and European Court of Human Rights, 197; foreign origins, 108–109, 125– 126nn85,88; former members, 374– 376, 421, 422; and globalization, 41, 55nn43,46,65; humanitarian aid, 69, 84n19; Hungary, 69, 347, 349, 357, 359–360, 362n63; indigenous, 63, 83n10, 85n30, 307–309, 315n32; internal critiques of, 65; leadership, 64, 83nn11,12; and Marxism, 65–66; membership, 58–59, 82n2; “old new”

535

vs. “new new”, 63, 76, 83nn9,10; and proselytism, 59–60, 68–70, 73; and religious registration, 79–80, 86n35; and religious response types, 73; social scientific approach, 80–81; and state differential treatment, 108–109, 125–126nn85,88, 299; stereotypes of, 77–78; temporal differences within, 63. See also New religions, prejudice against; Western Christian missionaries New religions, prejudice against, 39–40; and administrative discrimination/ repression, 48; and Catholic Church, 373–374, 377, 422; and China, 50; and definitions of religion, 55n51, 382; and European Court of Human Rights, 204–205, 220n61; and fundamentalism, 373, 387n38; and media, 78–79, 380–381; and new religion membership, 59; and older religious minorities, 84n15; and state support for religious communities, 356. See also Anticult movement; Parliamentary commissions on cults/sects NGIOs. See Religious nongovernmental international organizations NGOs. See Nongovernmental organizations; Religious nongovernmental international organizations (NGIOs) Niebuhr, Reinhold, 21, 513 Niemoller, Martin, 483 1981 Declaration. See UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief Nondiscrimination, 196–197; centrality to international instruments, 87–88, 94, 117n1, 118n7, 119n9; defined, 119n10; Human Rights Committee on, 119nn10,11; importance of, 55n49, 88; and objective vs. subjective criteria, 213–214; vs. group rights, 6–8, 11. See also Religious freedom; Religious minority rights

536 in d e x Nongovernmental organizations (NGOs): and ad hoc/extraconventional monitoring, 152; and complaint procedures, 157, 184n96; international conferences, 160–161; and Organization for Security and Co-operation in Europe, 227, 228. See also Religious nongovernmental international organizations Nonreligious beliefs, 52n4, 213, 413. See also Secularism Nontraditional religions. See New religions Northern Ireland, 141, 197 Norway, 241, 430, 433–434nn35,36 N. v. Sweden, 112, 126n99 Oaths, 212–213, 221n87 Oberleitner, Gerd, 159, 185n109 ODIHR (Office of Democratic Institutions and Human Rights), 16, 224, 242, 245n9 Odio Benito, Elizabeth, 137, 138, 152. See also UN Special Rapporteur on Religious Intolerance l’Oeuvre, 377 Office of Democratic Institutions and Human Rights (ODIHR), 16, 224, 242, 245n9 Office of the High Commissioner for Human Rights, 149, 154–155, 167, 182n68 OHCHR (Office of the High Commissioner for Human Rights), 149, 154– 155, 167, 182n68 Ominayak v. Canada, 120n19 Open intolerance/discrimination, 137 Opstal community, 421 Optional Protocol to the ICCPR. See International Covenant on Civil and Political Rights Opus Dei, 377, 421, 422 Orban, O., 411 Organization for Security and Cooperation in Europe (OSCE), 16,

222–243; Advisory Panel of Experts on Religion, 242–243, 250n69; and bilateral monitoring, 162, 185–186n119; Budapest Summit Declaration, 235; and Bulgaria, 327–328; and coalitions among religious minorities, 250n71; and Communist countries, 244n3; early religious freedom commitments, 229–231, 246nn24,26,29; establishment of, 146, 222–224, 244n5; and external monitoring legitimacy, 146– 147, 226, 245nn12,14,16; implementation/review meetings, 223, 227, 240– 242, 244n5, 249n62; and international character of human rights, 51; and limitations on religious behavior, 237–239; Madrid Document, 230– 231; on minority rights, 239–240, 249n54; and nongovernmental organizations, 227, 228; Paris Summit document, 235; political character of, 225–226, 245n10; on positive measures, 236, 247n44; and religious nongovernmental international organizations, 479, 480–481; security linkage, 227–228, 229, 246n22; on self-determination, 260–261; structure of, 224–225; topical/thematic meetings, 242; Vienna Document, 124n57, 231–233, 236, 238–239, 246n31. See also OSCE Copenhagen Document Organization of African Unity, 290n121 Orthodox Churches: Belgium, 414, 419; Bulgarian, 253, 317, 319, 333; Estonia, 489n33; Greek, 17, 22, 76, 90, 100, 107, 220n72, 381; Hungary, 349, 351, 356, 357, 361n25; and interfaith dialogue, 470, 473, 476n40; Poland, 440; Romanian, 22, 361n25, 467, 468, 469, 470, 473; Russian Orthodox Church Abroad, 302, 312n8; Serbian, 361n25; Slovakia, 255; Ukrainian, 298, 305, 306, 307–310. See also Russian Orthodox Church

index OSCE. See Organization for Security and Co-operation in Europe OSCE Budapest Summit Declaration, 235 OSCE Copenhagen Document, 14, 35, 233–235; on incitement to hatred, 125n82; and limitations on religious behavior, 239; on positive measures, 175, 190n179 OSCE Madrid Document, 230–231 OSCE Vienna Document, 124n57, 231– 233, 236, 238–239, 246n31 Osho (Bhadwan Rajneesh). See Rajneeshee movement Outward expressions of religion. See Religious behavior; Religious behavior, limitations on Pacifism, 197, 210–211. See also Conscientious objection Paganism, 85n30, 197 Pakistan, 187n130 Parliamentary commissions on cults/ sects, 20, 42–46, 90, 366–383, 386n19; and anticult movement, 370, 375– 376, 378, 421, 422, 423; Belgium, 369– 370, 376, 377–378, 379, 419–425; Cottrell Report, 366, 367–369; on criminal law/behavior, 125n77; and due process, 369, 386n13; findings, 42–44, 56n66, 80, 86n37, 376–378, 423–425; and former members of new religions, 374–376, 421, 422; government responses, 280, 293n171, 378– 380; information gathering process, 369–370, 386n20, 421–423; and media, 380–381; membership, 369, 370, 385–386n14; and sphere sovereignty, 280; and traditional churches, 56n64, 370–374, 421, 422; UN Special Rapporteur on, 45–46, 56n64 Peace of Westphalia, 89 “Pending-tray” response, 72 Pentecostalism, 205, 241, 310, 357, 424 Pieronek, Tadeusz, 501

537

Pluralism: and fundamentalism, 5, 25n16; and globalization, 9; New World vs. Old World, 7–8, 27n30; and secularism, 5, 25n16; unfamiliarity of, 66–67 Poland, 437–451; association of nationalism with traditional churches, 17, 445, 460, 495–496; bilateral monitoring, 162–163, 186n123; church-state relationships, 17, 461, 462; communist collapse as disappointing for human rights, 440–441, 449–451; Communist era, 82n4, 443–444, 453–454n25; decline of polyethnicity in, 441–443, 449, 452n9; and external monitoring, 146–147; German minority in, 2; interfaith dialogue, 23–24; new religions, 84n19; religious registration, 254, 276; sphere sovereignty, 273, 276. See also Catholic-Jewish dialogue in Poland; Polish Catholic Church; Polish Greek Catholic Church Polish Catholic Church, 84n19, 438, 460–463; challenges for, 68, 461, 471– 472; and Catholic-Jewish dialogue in Poland, 499–504, 507, 507n1; and civil society, 446–448, 453n21; Communist era, 17, 67, 72, 440, 443, 460– 461; divisions within, 501–504; and electoral politics, 461–462; and European vision of John Paul II, 462–463, 475n19; and property restitution, 444, 507. See also Polish Greek Catholic Church Polish Council of Christians and Jews, 506–507 Polish Greek Catholic Church, 438; and civil society, 22, 442, 445–450, 453nn19,21,22; and decline of polyethnicity, 442, 443, 449; historical background, 441; size of, 453n18; state relations with, 443–445, 452n15 Politi, Marco, 458 Pomaks, 18

538 in de x Pontifical Council for Inter-Religious Dialogue (Catholic Church), 141 Pontifical Council for Promoting Christian Unity (Catholic Church), 141 Positive measures, 13, 174–175, 190nn177–79, 236, 247n44, 348 Prejudicial treatment, 42–46. See also New religions, prejudice against; Religious intolerance/discrimination Private sphere, 197, 217–218n19; and civil society, 439–440; and external monitoring, 136–137 Program to Combat Racism, 479, 486n7 Project on Religion and Human Rights, 4 Project Tandem, 161 Property restitution: Hungary, 353–354; Poland, 444, 507 Proselytism, 38; and administrative discrimination/repression, 49; and communist collapse, 42, 59–60, 69; and constitutionalism, 219n45; criminalization of, 38, 42, 49, 207, 279; defined, 219n44; lack of consensus on, 173, 189n167; and new religions, 59– 60, 68–70, 73; and proliferation of religious minorities, 42; and state differential treatment, 207; and traditional churches, 204–205. See also Kokkinakis v. Greece Protestant churches: Armenia, 75; Belgium, 412, 414, 415–416, 426, 431nn7– 9; Bulgaria, 48, 333; Hungary, 19, 347, 351; institutional structure of, 473; Romania, 476n35; Russia, 256; Spain, 113–114, 398, 399, 400; Ukraine, 309, 310, 315n33. See also Religious nongovernmental international organizations; Traditional churches; Western Christian missionaries; specific churches and countries Public order, 88, 107–108, 125n80, 139 Quasi-judicial monitoring, 182n70 Quaye, Christopher, 253

Race Convention, 119n12, 120n13, 125n82, 127n111 Rae¨lians, 61 Rainen v. Finland, 126–127n99 Rajneeshee movement, 61, 83n12 Ratner, Steven, 170–171 Reagan, Ronald, 458, 480 Realist international relations theory, 169 Reding, Viviane, 379 Reformed Calvinistic Church, 255 Reformed Church (Hungary), 19, 351, 354, 355, 356, 357, 359, 361n25 Regional organizations, 157–160. See also specific organizations Registration. See Religious registration Regulation of ideas, 36–37 Religion: as individual choice, 90; internal politics of, 518–519; response types, 70–73, 84–85nn23,25; traditions of civility in, 519, 520n13 Religion, definitions of, 4; European Court of Human Rights on, 197; lack of consensus on, 173, 189n161; and prejudice against new religions, 55n51, 382; and religious registration, 353; and state differential treatment, 97, 106, 107, 125n71 Religious behavior: and freedom of expression, 197, 198, 212, 218n20, 221n85; and freedoms of peaceful assembly/ association, 197, 218n21 Religious behavior, limitations on, 35– 36; Bulgaria, 208–209, 220n74; European Court of Human Rights on, 53n12, 106–108, 125n80, 198–199, 207– 210, 214, 215, 238, 248n49, 339–340; and external monitoring, 137–138; forum internum vs. forum externum, 137–138, 237, 247n47; Organization for Security and Co-operation in Europe on, 237–239; and secessionism, 254, 256–257, 282n6; and state differential treatment, 97, 107–108, 121n28, 125nn75,77,80

index Religious divisions, historical basis of, 2, 24–25nn8,9 Religious extremism, 153 Religious freedom, 35; European Convention for the Protection of Human Rights and Fundamental Freedoms on, 90, 125nn70,72, 196–199; and European Court conservatism, 199–200, 206–207, 220n69; as fundamental right, 132; and group rights, 124– 125n70; history of, 26n22, 89–90, 131– 132, 178n6; as individual right, 89–90; international standards, 191n183; lack of consensus on, 5, 171, 173; military contexts, 197–198, 205; and neutral laws, 210–216; and nonreligious beliefs, 52n4, 213; and objective vs. subjective criteria, 210–216; religious organizations’ recognition of, 90, 99– 100, 122nn35,36; Russian laws, 233, 247n32; and state differential treatment, 96–97, 105–109, 124–125n70; and state interference vs. internal autonomy, 103, 124n57; and state recognition, 93, 105–106; treaty stipulations, 5, 26n22, 178n6. See also International human rights instruments; Religious minority rights Religious Freedom Restoration Act (United States) (1993), 86n31 Religious hierarchies: Catholic Church, 359, 456–457; and state recognition, 413–414, 427–428, 431–432nn8,10. See also State interference vs. internal autonomy Religious human rights advocacy, 99– 100, 140–142. See also Interfaith dialogue Religious intolerance/discrimination, 42–51; administrative discrimination/ repression, 46–49; and association of nationalism with traditional churches, 2, 39, 74–76, 77, 139; and civil/political rights, 88; compensation for past, 116–117, 127n111; com-

539

prehensive discrimination/repression, 49–51; and ethnicity, 40; extent of, 132, 134, 137, 178n10; forum internum vs. forum externum, 137–138, 237, 247n47; incitement to hatred, 36, 125n82, 357–358; lack of international attention to, 88; name-change campaigns, 331–332; open vs. structural, 137; religious communities as sources of, 136; and religious registration, 80; root causes of, 5, 26n21, 39, 138–139, 168–169; state differential treatment as, 88–89, 93–94, 104, 153–154; state vs. nongovernmental perpetration of, 42, 55n48; types of, 10, 135–138. See also New religions, prejudice against Religious minorities: apprehension about, 33; coalitions among, 250n71; definitions of, 10, 34, 173, 189n170; proliferation of, 10, 17–18, 40–42, 55nn43,46, 65; state dialogue with, 231; types of, 34, 39–40, 52n2; vs. ethnic minorities, 66, 84n17. See also New religions Religious minority rights, 35; centrality to international instruments, 87–88, 94, 117n1, 118n7; as excuse for foreign intervention, 164; group rights model, 7–8, 9, 11; historical background, 5, 12–13, 26n22; lack of consensus on, 173–175; nondiscrimination model, 6–8; and state differential treatment, 95–96; vs. religious freedom, 89–90. See also International human rights instruments; Nondiscrimination; Self-determination; specific instruments Religious nongovernmental international organizations (NGIOs), 23, 477–485; access to Communist states, 478, 479–480, 485n3, 486–487nn5,7– 10; and Communist collapse, 484– 485; credibility gaps, 481–483, 488– 489nn23,25,26; 1980s, 480–481,

540 in d e x Religious nongovernmental international organizations (continued ) 487nn13,16, 488n17; transatlantic asymmetries, 483, 489n31 Religious registration: Hungary, 254–255, 282–283n19, 347, 348–350, 352–353, 361n33; and new religions, 79–80, 86n35; Norway, 430, 433–434n35; Russia, 80, 86n35, 255–257; and sphere sovereignty, 276; and state differential treatment, 46, 255–256; and totalitarianism, 254–256, 282– 283nn19,31 Religious seekers, 73 Rennebach, Renate, 378, 386n14 Report of the Conference on Security and Co-operation in Europe on the Meeting of Experts on National Minorities, 14 Revivalists, 72 Ribeiro, Vidal d’Almeida, 138, 152. See also UN Special Rapporteur on Religious Intolerance Richardson, James T., 382 Roma (Bulgaria), 18, 145, 326, 337 Romania: bilateral monitoring, 163; Catholic Church, 22, 467–471, 473, 476nn28,29, 39; church-state relationships, 17; new religions, 63; number of ethnic minorities in, 2; Protestant churches, 476n35; sphere sovereignty, 273 Romanian Orthodox Church, 22, 361n25, 467, 468, 469, 470, 473 Rosenzweig, Franz, 493 Rudin, James, 506 Russia, 18, 297–304; administrative discrimination/repression, 47; association of nationalism with traditional church, 18, 300–304, 310–311, 313n12; bilateral monitoring, 162; Cathedral of Christ the Saviour reconstruction, 301–302, 303; and former Soviet republics, 303–304; Lutheran Church, 489n32; new religions, 63, 85n30, 109, 299, 371; Nicholas II reburial,

302; 1989 law, 233, 247n32, 299; 1997 law, 11, 47, 80, 247n32, 255–257, 283n31, 297, 299, 304; Orthodox church weaknesses, 300, 313nn10,11; proselytism, 38, 42; religious registration, 80, 86n35, 255–257; revivalists, 72; sphere sovereignty, 277–278; state differential treatment, 297, 299–300, 312nn6–8, 379; totalitarianism, 255– 257, 279, 283n31; Western Christian missionaries, 299, 310–311, 312n7. See also Soviet Union Russian Orthodox Church: association with nationalism, 18, 300–304, 313n12; challenges for, 300, 313nn10,11; communist era, 104, 480, 481; demographic position of, 100; and new religions, 371; and religious nongovernmental international organizations, 480, 481; revivalism in, 72; and sphere sovereignty, 277; and state differential treatment, 297, 299–300, 312nn6–8; Ukraine, 300, 303, 313n11 Russian Orthodox Church Abroad, 302, 312n8 Sacred sites, 301–302, 303, 307–309, 315n32 Sahaja Yoga, 60, 69 San Egidio, 421 San Marino, 212–213, 221n87 Sannyasins, 367 Satmar community, 421, 423–424, 432n21 Saudi Arabia, 40, 49 Scapegoating, 138–139 Scharansky, Natan, 241 Scharf, Rafael, 492 Scheinen, Martin, 184n96 Schnieber-Jastram, Brigit, 385n14 Schro¨ter, Gisela, 386n14 Schwartz, Herman, 144 Scientology. See Church of Scientology Secessionism, 16, 266–271; and communist collapse, 252–253; and definitions of statehood, 267, 289n114; and early self-determination ideas, 259; fears of,

index 8–9, 27n32; and group rights, 267, 289nn115,118; legitimate instances of, 269–271, 290–291nn131–133,135; and limitations on religious behavior, 254, 256–257, 282n6; negative consequences of, 271–272; and territorial integrity, 267–269, 290nn121,130; and totalitarianism, 253–258, 282n10 Second Vatican Council: and Catholic conservatism, 68; and CatholicJewish dialogue in Poland, 494, 499; and European vision of John Paul II, 518; and interfaith dialogue, 180n37; and religious freedom, 90, 99 Sects. See Anticult movement; New religions; New religions, prejudice against; Parliamentary commissions on cults/sects Secular absolutism, 16 Secularism, 5, 25n16; and globalization, 41; and new religions, 65; and religious nongovernmental international organizations, 481–482, 488n20; state recognition, 413, 414, 418 Security concerns, 227–228, 229, 246n22. See also Public order Self-determination, 16, 258–271; and colonialism, 259–260, 266, 285n65; consociational model, 265–266, 288nn106,107; desire for, 251–252; and former Yugoslavia, 262–265, 286– 288nn83–86,90,92,101,105; and group rights, 53n20, 267, 289nn115,118; history of, 258–261, 266, 284nn54, 56, 285–286nn65,66,72; and international human rights instruments, 260–262; and South Africa, 257–258, 260, 264, 265–266, 287nn95–97, 288nn106,107. See also Secessionism; Sphere sovereignty Sen, Amartya, 140 Serbia, 17, 298 Serbian Orthodox Church (Hungary), 361n25 Serif v. Greece, 209

541

Settled residents, 34 Seventh-Day Adventists, 48, 76, 357, 434n37 Shari’ah. See Islam Shattuck, John, 166–167 Sheen, Juliet, 37, 39, 134 Shoah, 493, 496, 499, 504, 505–506 Shriver, Donald, 21, 24 Shterin, Marat S., 371 Shushkevych, Volodymyr, 315n33 Simma, Bruno, 151 Singapore, 272–273 Singelenberg, Richard, 377–378 Sint Egedius Gemeenschap, 377 Sklar, Morton, 180–181n46 Slovakia: bilateral monitoring, 163; Catholic Church, 22, 255, 464–467, 472–473, 476nn28,29; constitutionalism, 145; historical background, 463–464; religious registration, 254, 255 Slovenia, 84n18 Smith, Chris, 168 Smolar, Aleksander, 501 Social/economic inequalities, 138–139 Soka Gakkai, 44, 60 Solar Temple, 77, 81 Soldiers of Christ, 85n30 Solzhenitsyn, Alexander, 303–304 Soros, George, 501 South Africa, 143, 260, 264, 287nn95–97; consociational model, 265–266, 288nn106,107; constitutionalism, 257– 258, 287n96 Soviet Union: Jews, 241; and secessionism, 269, 290n132; state differential treatment, 104, 124nn60,62. See also Former Soviet Union; Russia Spain, 396–402; church-state agreement system, 20, 104–105, 124nn66,67, 396– 402; European context, 389–391, 402, 403nn4,7; religious registration, 430; state support for religious communities, 113–114, 430

542 in d ex Special Rapporteur on Religious Intolerance. See UN Special Rapporteur on Religious Intolerance Sphere sovereignty, 16, 267, 271–281; and criminal law/behavior, 279–280; defined, 273–276; examples of, 272–273; and negative consequences of secessionism, 271–272; origins of idea, 272; and state interference vs. internal autonomy, 275–279; and territorial integrity, 268 Sri Lanka, 40 Stahl, Friedrich Julius, 272 Stahnke, Tad, 203–204 Stalin, Joseph, 259 Stanev, Emilian, 331 State differential treatment, 12, 46–49, 88–117; acceptable instances of, 94– 95, 98, 119–120nn12,13, 122n31; claims of, 96–98, 121n22; and communist era, 90–91, 104, 124nn60,62; and conscientious objection, 47–48, 93–94, 101, 111–112, 126–127n99; and definitions of religion, 97, 106, 107, 125n71; and differences among religious groups, 92–93, 352, 358; and diversity of state recognition practices, 91–93; and establishment of religion, 100– 102, 123nn49,53; and external monitoring, 111–112, 156, 184n94; and historical background of state recognition, 89–91; as intolerance/ discrimination, 88–89, 93–94, 104, 153–154; and limitations on religious behavior, 97, 107–108, 121n28, 125nn75,77,80; and new religions, 108–109, 125–126nn85,88, 299; and proselytism, 207; and religious freedom, 96–97, 105–109, 124–125n70; and religious minority rights, 95–96; and religious registration, 46, 255– 256; Russia, 297, 299–300, 312nn6–8, 379; and state interference vs. internal autonomy, 102–105, 124nn57,60,62,66,67; and state sup-

port, 97, 109–111, 113–117, 126n89; and totalitarianism, 255–256, 283n31; UN Special Rapporteur on Religious Intolerance on, 153–154. See also New religions, prejudice against State interference vs. internal autonomy, 390, 403n4; Bulgaria, 144, 180– 181n44, 208–209, 320–322; historical background, 89; Organization for Security and Co-operation in Europe on, 237; and secessionism, 254, 282n10; and sphere sovereignty, 275– 279; and state differential treatment, 102–105, 124nn57,60,62,66,67 State recognition: Belgium, 412–415, 431nn7–10; diversity of practices, 91– 93; European Court of Human Rights on, 220n72; historical background, 89–91; Organization for Security and Co-operation in Europe on, 236; and religious freedom, 93, 105–106; and religious hierarchies, 413–414, 427–428, 431–432nn8,10; and state support for religious communities, 429–430. See also Church-state agreement systems; Church-state relationships; Religious registration; State differential treatment; State interference vs. internal autonomy State support for religious communities, 97, 113–117; Belgium, 415–419, 427, 428–429; and compensation for past discrimination, 116–117, 127n111; Hungary, 114, 356–357; Norway, 433– 434nn35,36; and state recognition, 429–430; tax exemption, 101, 113–114; traditional churches, 115; types of, 109–111, 126n89 Stefans-Batsl, Jutta, 228 Ster Van David, 377 Structural intolerance/discrimination, 137 Study of Discrimination in the Matter of Religious Rights and Practices (Krishnaswami), 5, 101, 103, 176, 190n183

index Subsidiarity, 273 Sudan, 40, 41, 50–51, 187n130, 190n181 Suˆkyoˆ Mahikari, 423 Sullivan, Donna, 136, 176 Sweden, 101, 112, 126–127n99 Synanon, 77 Tahzib, Bahiyyih, 138, 140 Tax exemption, 101, 113–114 Thematic monitoring procedures. See Ad hoc/extra-conventional monitoring; UN Office of the High Commissioner for Human Rights; UN Special Rapporteur on Religious Intolerance Thlimmenos v. Greece, 221n88 Thurow, Lester, 41, 55n43 Tibetan Buddhism, 40, 41, 49–50 Tischner, Jo´zef, 493, 497, 502, 503 Todorov, Tzvetan, 342n38 Tolerance, 13–14, 28n47, 236, 247n44. See also Positive measures Tomka, Miklo´s, 360 Torfs, Rik, 417–418 Totalitarianism, 253–258, 254–256, 279, 282–283nn10,19,31. See also Establishment of religion; Religious registration; State interference vs. internal autonomy Traditional churches: challenges for, 10, 67–68, 74, 84nn18,19, 300, 310–311, 313nn10,11, 459–460; Communist era roles, 17, 67, 72, 459, 460–461; demographic imbalances, 67–68; disillusionment with, 73; and group rights, 11; new religions as competition, 10– 11, 68–70, 91, 371; and parliamentary commissions on cults/sects, 56n64, 370–374, 421, 422; and proselytism, 204–205; and religious response types, 70–72, 73, 85nn25,26; state support for, 115. See also Association of nationalism with traditional churches; Establishment of religion; State differential treatment; specific churches

543

Transcendental Meditation, 44, 60, 69 Transylvania, 467–468, 473 Truth, monopoly beliefs, 65–66, 100, 138, 176 Turkey, 197–198, 325, 332–333 Turkish Muslims. See Bulgarian Muslims “Two-tier” systems. See State differential treatment UDHR. See Universal Declaration of Human Rights Uighur Muslims, 40, 49, 50 Ukraine, 297–298, 304–310; competition between traditional churches, 18, 85n28, 298; new religions, 63, 83n10, 85n28, 108, 109; Protestant churches in, 309, 310, 315n33; Russian Orthodox church in, 300, 303, 313n11; sacred sites, 307–309, 315n32; Western Christian missionaries, 309–310 Ukrainian minority. See Polish Greek Catholic Church Ukrainian Orthodox Church, 298, 305, 306, 307–310 UN-ADFI (National Union for the Association for the Defense of the Family and the Individual) (France), 375, 376 UN Charter. See Charter of the United Nations UN Commission on Human Rights, 148–150, 182n72, 1552 UN Declaration on Minorities, on group rights, 37 UN Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, 260, 269, 290n130 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (DEID) (1981), 14, 132; and

544 in de x UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (continued ) conscientious objection, 189n168; and consensus on international human rights standards, 176; and Human Rights Committee, 156; and limitations on religious behavior, 35; and nongovernmental organizations, 161; and private sphere, 136–137; and UN Special Rapporteur on Religious Intolerance, 152 UN Declaration on the Inadmissability of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (1965), 285n65 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992), 14, 240; and European Framework Convention for the Protection of National Minorities, 159, 185n108; on positive measures, 174– 175, 190n177; and self-determination, 261, 268, 275 UN Draft Convention (1967), 27–28n39 UN Draft Declaration on the Rights of Indigenous Peoples, 37 UN Economic and Social Council (ECOSOC), 148, 149, 150 UNESCO Convention against Discrimination in Education, 94, 327 Unification Church (“Moonies”): administrative discrimination/repression, 48; basis of beliefs, 61; leadership, 83n12; membership, 59; and parliamentary commissions on cults/sects, 44, 366, 367; proselytism, 60, 69 Unilateral monitoring, 117n3, 164–168, 186n129, 187nn130,134,136; defined, 161; and establishment of religion, 187n141; and human rights reconcili-

ation with religious values, 187n138; and U.S. lack of good faith, 166, 167, 187nn139,143; weaknesses of, 51–52, 133, 167, 168–169, 188nn145,146,148. See also Bilateral monitoring Unitarian Church: Hungary, 346, 349, 351, 356, 361n25; Romania, 76 United Church of Christ, 482 United Nations, 148–149; ad hoc/extraconventional monitoring, 149–155; and bilateral monitoring, 162; Christian Right views of, 187n143; Commission on Human Rights, 148–149; and international character of human rights, 51; NGO committees, 161; Office of the High Commissioner for Human Rights, 149, 154– 155, 167, 182n68; Project Tandem, 161; U.S. lack of support for, 169. See also specific bodies and documents United Protestant Church of Belgium (EPUB), 414, 426, 431n7 United States: Christian Right, 187n143, 188n145; conscientious objection, 212; early history, 514–515, 516–517; and establishment of religion, 11, 187n141; freedom of expression, 212, 221n85; Jackson-Vanik Amendment, 186n129; lack of support for international human rights instruments, 166, 167, 169, 187nn139,143, 188n144; Native peoples, 40, 166; nondiscrimination model in, 7; and Organization for Security and Co-operation in Europe, 240, 241, 249n62; relevance of Eastern European issues for, 513–517; Religious Freedom Restoration Act, 86n31; and religious nongovernmental international organizations, 479, 480, 481–483, 487nn13,16; Satmar community, 432n21; state support for religious communities, 126n89; Waco disaster, 81. See also International Religious Freedom Act Universal Declaration of Human Rights

index (UDHR), 6, 35; on changing religions, 173; and criminal law/behavior, 76–77; and establishment of religion, 11; and European Convention, 194; and external monitoring legitimacy, 147; on group rights, 37; and International Religious Freedom Act, 187n134; nondiscrimination as central to, 118n7; and nongovernmental organizations, 160; and Organization for Security and Co-operation in Europe, 246n24; and religious freedom, 90 UN Office of the High Commissioner for Human Rights (OHCHR), 149, 154–155, 167, 182n68 UN Special Rapporteur on Religious Intolerance: on administrative discrimination/repression, 48; country visits, 150; establishment of, 150–152; on extent of religious intolerance/discrimination, 137; extraordinary appointments, 150, 182n73; on group rights, 14; on human rights, 140; legitimacy of, 151–152; on parliamentary commissions on cults/sects, 45–46, 56n64; and root causes of discrimination, 134, 138; success of, 152–155; on types of religious intolerance/discrimination, 135; U.S. lack of support for, 167; weaknesses of, 151 UN Special Rapporteurs, 150, 182n73, 183nn76,88. See also UN Special Rapporteur on Religious Intolerance Urchristen in Universellen Leben (Germany), 371–372 Valsamis v. Greece, 210–211 Van Boven, Theo, 190n183 Vandeput, Raymond, 425 Van der Veken, Henri, 424 Van Dijk, Peter, 162 Van Dyke, Vernon, 268 Vatican. See Catholic Church Vatican Council II. See Second Vatican Council

545

Verucci, Guido, 374 Vibration Coeur, 425 Vienna Document. See OSCE Vienna Document Von Campenhausen, Axel Freiherr, 392 Voye´, Liliane, 370 Vyghen, Carine, 379 Waco, 81 Walsensians, 434n37 Walzer, Michael, 6, 7–8 Watson v. Jones, 124n57 WCC (World Council of Churches), 80, 100, 478, 479, 480, 486n7 Weber, Max, 54n30, 520n6 Wee, Paul, 481–483, 486n8, 487n13, 488nn17,20,23,25 Weigel, George, 458 Welles, Sumner, 12–13 Western Christian missionaries, 40, 59, 299, 309–311, 312n7, 349 Western Sahara Case, 259–260 West Virginia State Board of Education v. Barnette, 212 White Brotherhood (Bulgaria), 83n10 White Brotherhood (Ukraine), 63, 83n10, 85n28, 307–309, 315n32 Wicca, 197 Wiesel, Elie, 505 Wilson, Bryan R., 374–375, 380 Wilson, Woodrow, 259, 284n56 Wippman, David, 248n53 Wisconsin v. Yoder, 221n85 Wojtyła, Karol. See John Paul II Women, 119–120n12, 136, 153 Women’s Convention, 119–120n12 Wooley v. Maynard, 221n85 Word of Life Church, 48, 84n21 The Work, 421, 422 Working Group on Forced or Involuntary Disappearances, 150 World Baptist Alliance, 100 World Conference on Human Rights (1993), 267–268

546 in d e x World Council of Churches (WCC), 80, 100, 478, 479, 480, 486n7 World Report on Freedom of Religion or Belief (1997), 161 World War I, 321 World War II, 12, 192, 194, 442–443, 460 Wyszyn´ski, Stefan, 460

Yeltsin, Boris, 299, 301–302, 304 Young, Iris Marion, 27n30 Young, Michael, 141–142, 164, 171, 173, 175 Yugoslavia. See Former Yugoslavia Zaiats, Oleksandr, 315n33 Zhivkov, Todor, 331, 332, 334 Ziuganov, Gennadii, 301