May 19, 2011
The Council of Europe recently released a report on diversity in Europe, entitled “Living together: Combining diversity and freedom in 21st-century Europe”, drawn up by the ‘Group of Eminent Persons of the Council of Europe’. The report aims to negotiate “the challenges arising from the resurgence of intolerance and discrimination in Europe”. It “assesses the seriousness of the risks, identifies their sources and makes a series of proposals for “living together” in open European societies”. The findings and recommendations are based “firmly on the principles of the European Convention on Human Rights, especially individual freedom and equality before the law.” What makes this report particularly interesting is the impressive list of persons that have worked on it. Among the drafters are not only academics from some of the most reputable universities in Europe, but also former high level politicians, including Emma Bonino, Javier Solana and Joschka Fischer.
These latter know very well from personal experience that politicians experience pressure from their electorate when drawing up policies and laws in an attempt to tackle the challenges faced in European states characterised by increased diversity. Their presence has clearly added concrete value and reliability to the findings of the report. At one point the report for instance recognises that “[t]ormented by the twin fear of being “swamped” by an uncontrolled influx of immigrants and/or massacred by Islamic terrorists, Europeans look to the state to protect them, and political leaders fear they have little chance of re-election if they are seen to fail on either front. States are thus under constant pressure to tighten controls on immigration and to keep potential or suspected terrorists under very close observation.” Because the authors of the report are not (or no longer) under such pressure, they are liberated to immediately counter such arguments based on fear: “[t]oo often, it is assumed that there is a direct trade-off between security and civil liberties, and governments feel obliged to restrict the latter in the hope of guaranteeing the former. Yet the trade-off is highly questionable: civil liberties are the essential prerequisite of democracy, and the citizen’s freedom to live as he or she chooses is the essence of what security is there to protect. … Therefore we believe that the overreaction of the state and the imposition of excessive controls do indeed represent a serious risk to the health and strength of our European democracies.”
The report has a broad scope, dealing with a wide variety of elements relating to diversity in contemporary Europe. Its focus and findings are – if any short quotes are to be selected – best reflected in the following paragraphs: “[t]he report holds firmly that identities are a voluntary matter for the individual concerned, and that no one should be forced to choose or accept one primary identity to the exclusion of others. It argues that European societies need to embrace diversity, and accept that one can be a “hyphenated European” – for instance a Turkish-German, a North African-Frenchwoman or an Asian-Brit – just as one can be an African- or Italian-American. But this can work only if all long-term residents are accepted as citizens and if all, whatever their faith, culture or ethnicity, are treated equally by the law, the authorities and their fellow citizens. Like all other citizens in a democracy they should have a say in making the law, but neither religion nor culture can be accepted as an excuse for breaking it.” and “most of those who have come to Europe in recent decades, and their descendants, are here to stay. Many remain attached to the cultural heritage of their countries of origin. What is wrong with that? So long as they obey the law, people who come to live in a new country should not be expected to leave their faith, culture or identity behind. Indeed, this diversity can contribute to the creativity that Europe needs, now more than ever.” In recognition of the importance members of minority groups attach to their identity – just as members of the majority do – the report recommends that members of minority groups “are not expected to renounce their faith, culture or identity. Neither Islam nor any other religion should be considered a priori incompatible with European values. None of us has only one identity – we identify differently according to context.” Yet it is precisely this respect for others’ identity that is increasingly undermined in Europe, as shown by the continuing rise of nationalist parties in certain countries and the increased call for reaffirmation of a European or national identity in others. Such developments automatically lead to demands of assimilation of members of minority groups, who are expected to ‘change’ – as if one could adopt a different identity and could be forced to do so – and are treated with intolerance and discrimination if they do not.
Intolerance and Discrimination
The report identifies several factors that have contributed to the intolerance and discrimination of minorities (used in the wide sense; including ethnic and religious minorities, but also immigrants and their descendants). These factors are: “insecurity (stemming from Europe’s economic difficulties and sense of relative decline); the phenomenon of large-scale immigration (both as actually experienced and as perceived); distorted images and harmful stereotypes of minorities in the media and public opinion; and a shortage of leaders who can inspire confidence by articulating a clear vision of Europe’s destiny.” With respect to insecurity about the economic future of Europe and the impact of large scale immigration, the report puts the finger on the wound eloquently and without compromise: “Europeans are also well aware – because politicians, economic pundits and the media are constantly telling them – that their position in the world pecking order is slipping, as emerging economies, especially in East and South Asia, recover much faster from the crisis than the already industrialised world, competing successfully for export markets and attracting investment from employers who sometimes close factories in Europe while opening new ones in the “global south”. They know that their society is aging, and that their education system is less and less competitive on the world market. And they are more aware than people in most other parts of the world that their current way of life may not be sustainable, because they are consuming nonrenewable (sic.) resources and risking catastrophic climate change. Their mood is therefore defensive – worried about their future in a fast changing world; anxious to protect their wealth; worried about their children’s future in a rapidly globalising world; and feeling threatened in their way of life by the unfamiliar cultures and traditions of new neighbours living in their midst.” This is an unmistakable warning that an us against them mentality, while a natural reflex in times of economic depression (as history has taught us all too well), is not the way forward for Europe today.
The report singles out a number of specific groups that are deemed to suffer the most from prejudice and discrimination. Despite increased international attention to their plights and clear jurisprudence of the European Court of Human Rights, Roma still figure prominently as perhaps the most discriminated group in Europe. The report holds firmly that “the condition of the Roma people throughout Europe is a standing reproach to the entire continent, and one of the most persistent violations by Europeans of what we like to think of as “European values”.” It calls on “European leaders at all levels to channel the long overdue interest in their plight kindled by recent large-scale repatriations of Roma from western to eastern Europe into actions which will effectively eliminate discrimination against them.”
The European Court of Human Rights
The one part where I feel the report falls a bit flat is in its engagement with the jurisprudence of the European Court of Human Rights. Quite disappointingly, the report does not substantially engage with the role the ECtHR plays in promoting diversity and equal respect in Europe, apart from recognising its vital role as “the last line of defence for those whose rights are violated”. Instead, the authors limit themselves to extremely brief statements. Especially the ‘section’ on freedom of religion lacks any substance. The whole section is just one paragraph: “[t]here has been a noticeable increase over the last 10 years in the number of cases concerning this right. In particular, the regulation of religious dress has given rise to considerable controversy. As regards the internal aspect of freedom of religion, the Court has generally considered that the state may not require individuals to disclose their religious convictions.” One possible explanation for the lack of critical engagement with the “controversy” surrounding regulation of religious dress is disagreement on this issue among the authors of the report. With honesty, they indicate themselves that “[o]pinions may legitimately differ, and on at least one such issue – whether women (or men for that matter) should be allowed to appear in public with their face fully covered – even the members of our Group were unable to agree.” However, in light of the vital role of the Court as a last line of defence for individual rights, I would have liked to see the report engage – at least in a general matter – with the prejudiced and stereotyped language the Court uses to describe Islam and, more particularly, the Islamic headscarf. The Court has time and again recalled that the headscarf “appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality”, thus stigmatising a whole minority group (Muslim women). That the report does not at least point to this failing on the part of the Court is particularly disappointing in light of the fact that it does include a specific section on distorted images of minorities in the media and harmful stereotypes.
A Possible Clash between Freedom of Expression and Freedom of Religion
A final section of the report worth mentioning addresses a “possible clash between “religious freedom” and freedom of expression”. The report takes a balanced approach to the issue, but makes it entirely clear that this is not an area in which the law should impose restrictions on speech: “[f]reedom of expression lies at the heart of a free society, and is a fundamental human right. Devout believers in a religion can be deeply hurt, or feel that their identity or their community is being victimised, if the religion in question, its founder or its sacred symbols are subjected to public ridicule or vilification. Freedom of expression should therefore be exercised responsibly and with due consideration for such feelings, particularly in the mass media. But it is not the province of the law or the public authorities to enforce such consideration.” The report goes on to point out that discriminatory or prejudicial speech should be combated in the public arena: “[w]e do, however, consider it very important that public statements tending to build or reinforce public prejudice against members of any group – and particularly members of minorities, immigrants or people of recent migrant origin – should not be left unanswered. We believe that all citizens, and especially those in positions of authority or enjoying privileged access to the public ear, have an obligation to condemn racial or religious abuse, and to refute misleading generalisations or stereotypes, wherever they may encounter them. If the battle for public opinion does not belong mainly in the law courts, it must be fought where it does belong, namely in the media and public debate.” Regarding discriminatory or prejudicial speech, Alexandra has written several posts (here, here and here) on the European Court of Human Rights case of Aksu v. Turkey, arguing that this case involves stereotyping of Roma of the type described by the report.