The Log in Your Eye: Is Europe's External Promotion of Religious Freedom Consistent With its Internal Practice?
| Published date | 01 March 2016 |
| Author | Mauro Gatti |
| DOI | http://doi.org/10.1111/eulj.12162 |
| Date | 01 March 2016 |
The Log in Your Eye: Is Europe’s External
Promotion of Religious Freedom Consistent
With its Internal Practice?
Mauro Gatti*
Abstract: The commitment of the EU to the external promotion of the respect for human
rights allegedly distinguishes its foreign policy from that of traditional powers. Yet there is
the perception that EU’s statements are not always consistent with internal practices. This
article analyses one set of EU’s inconsistencies that has not been sufficiently studied: the
discrepancy between internal and external human rights standards. The article focuses on
the promotion and protection of freedom of religion or belief, which has become a priority
of the EU’s foreign policy. It is submitted that the EU’s external position generally reflects
values common to the Member States, but is sometimes contradicted by the practice of
domestic authorities. The human rights standards identified in the EU’s foreign policy
may arguably serve as a reference for legal reform and the interpretation of fundamental
rights in Europe.
Introduction
The commitment of the EU to the external promotion of the respect for human rights
1
allegedly distinguishes its foreign policy from that of ‘traditional powers’.
2
Yet there is
the perception that EU’s statements on human rights are not always consistent
3
with in-
ternal practices.
4
Several authors have tackled this problem from the perspective of the EU’s compe-
tences, noting that the Union ‘decries violations of human rights abroad yet has no
* Research Fellow, University of Bologna, m.gatti@unibo.it. Comments received from Pietro Manzini,
Federico Casolari, Giulia Evolvi and Elisa Ambrosini are gratefully acknowledged, as are remarks from
participants in the ‘1314’seminar of June 2014 (University of Bologna) and in the conferences ‘EU in
International Affairs IV’(Institute for European Studies) and ‘Global Perspectives on Europe’(Flensburg
University). All errors remain mine. References to websites were last checked on February 15th, 2016.
1
I speak of ‘fundamental rights’to refer to basic rights within the internal EU context, and ‘human rights’to
refer to basic rights in international law and international relations.
2
Cf. B. De Witte, ‘The EU and the International Legal Order: The Case of Human Rights’, in M. Evans and
P. Koutrakos (eds.), Beyond the Established Legal Orders –Policy Interconnections between the EU and the
Rest of the World (Hart, 2011), 127–147, at 142.
3
‘Consistency’is not a straightforward concept; a definition, for the purpose of this paper, is presented in
section II.
4
Cf. European Commission and High Representative, ‘Joint Communication to the European Parliament
and the Council: Human Rights and Democracy at the Heart of EU External Action –Towards a More
Effective Approach’, Brussels, COM(2011) 886 final, available at http://eur-lex.europa.eu/legal-content/
EN/TXT/?qid=1445020622134&uri=CELEX:52011DC0886, at 6.
European Law Journal, Vol. 22, No. 2, March 2016, pp. 250–267.
© 2016 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
voice with regard to human rights problems at home’.
5
Lesser attention has been
devoted to another aspect of the consistency of European policies: the correspondence
between internal and external human rights standards.
6
As recently acknowledged by
the Council, this issue is of paramount importance ‘in terms of enhancing the Union’s
credibility in its external relations and leading by example in the area of human rights’.
7
The EU can hardly be a credible global actor if it promotes respect for norms that do
not correspond to the rules applied within its borders.
Europe’s policies on freedom of religion or belief (hereafter: freedom of religion) constitute
an ideal case study in this area. The EU has made the promotion of freedom of religion one of
its foreign policy priorities
8
and has adopted a precise position on its interpretation.
9
Consis-
tency between external and internal freedom of religion standards is possible because this right
finds acceptance in both internal and external policies (at least in principle).
10
At the same
time, such consistency cannot be taken for granted, since the interpretation of religious free-
dom in Europe is controversial, and may result in unclear guidance to foreign policy makers.
11
This article investigates the correspondence between Europe’s external and internal
standardson religious freedom by confronting the positionsexpressed by the EU at the in-
ternational level with the application of freedom of religion in Europe. The investigation
seeks to elucidate whether there is a discrepancy between internal fundamental rights
5
A. Clapham, ‘Where is the EU’s Human Rights Common Foreign Policy, and How is it Manifested in
Multilateral Fora?’, in P. Alston (ed.) The EU and Human Rights (Oxford University Press, 1999), 627–
686, at 639. See also inter alia J.H.H. Weiler and S.C. Fries, ‘A Human Rights Policy for the European
Community and the Union: the Question of Competences’, in Alston, just cited, 147–165; P. Alston and
J.H.H. Weiler, ‘The European Union and Human Rights: Final Project Report on an Agenda for the Year
2000’, in A. Cassese et al. (eds.) Leading by Example: A Human Rights Agenda for the European Union for
the Year 2000: Agenda of the Comité des Sages and Final Project Report (European University Institute,
1998), 55; P. Annicchino, ‘Coherence (and Consistency) or Organised Hypocrisy? Religious Freedom in
the Law of the European Union’, in M. Foblets et al. (eds.) Belief, Law and Politics: What Future for a Sec-
ular Europe? (Ashgate, 2014), 257–264, at 262–263.
6
Existing analyses of the discrepancy between internal and external standards are quite narrow in content,
since they focus on: (1) a specific EU policy (i.e. enlargement); and (2) a specific class of rights, i.e. collective
rights (notably the rights of national minorities), which are promoted through the EU external action but
do not always find acceptance in Europe, see inter alia A. Williams, EU Human Rights Policies: A
Study in Irony (Oxford University Press, 2004), at 112–117; C. Hillion, ‘Enlargement of the European
Union –The Discrepancy between Membership Obligations and Accession Conditions as Regards the Pro-
tection of Minorities’, (2003) 27 Fordham International Law Journal, 715–740. One may wonder whether the
inconsistency between Europe’s human rights policies extends to the rest of the EU’s external action,
and regards also the human rights that are universally recognised in the European continent (and which
constitute the bulk of human rights).
7
‘Council Conclusions on the Commission 2013 report on the application of the EU Charter of Fundamental
Rights and the consistency between internal and external aspects of human rights’protection and promo-
tion in the European Union’, doc. 10116/14, available at http://www.consilium.europa.eu/uedocs/
cms_data/docs/pressdata/en/jha/143099.pdf, paras 13, at 14–17.
8
‘Council Conclusions on EU Priorities at the UN Human Rights fora’, 6 June 2014, doc. 6181/14, available at
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/ foraff/135514.pdf, para 15; ‘EU
StrategicFrameworkandActionPlanonHumanRightsandDemocracy’, 25 June 2012, Council doc. 11855/
12, available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf,
at 2.
9
See below, sections III.A and III.B.
10
Consistency is obviously impossible in the case of rights that find acceptance in external policies, but not
internally (see n. 6).
11
Probably consistency is easier to attain in respect of the protection and promotion of rights that are not
controversial in Europe (for instance, the right not to be subjected to the death penalty).
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