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The Role of International Accords in Securing Religious Freedom PDF Print E-mail

Jurgen Warnke
International Academy for Freedom of Religion and Belief, Germany

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Washington DC, April 17-19, 1998

am a lawyer in Frankfurt, Germany, and represent several religious groups concerning religious liberty and church-state relations. Also, I am a member of the International Academy for Freedom of Religion.

Lawyers tend to believe that laws, international accords, and treaties are well known to the public and widely respected. I had to learn a new experience, which shattered my understanding of the authority of law and treaties and that I would like to relate to you. I visited an eastern European country this month where the majority of the population is Christian Orthodox. I was with a delegation from the International Academy and we were invited by the government to discuss the draft of a new law that would govern the relations between state and church. Our counterparts were the assistants to the president’s ministers of justice, labor, and minorities and religions. Several church leaders also attended. After three days of intense discussion, in which we had to explain to them that their draft was not in compliance with international regulations and European standards, one high government official said, “We do not understand why you lawyers from Western countries put so much emphasis on written law. The law is one thing and the actual situation in our country is a different thing.”

This puzzled me, and I thought, “What am I doing here when I have a totally different understanding of law and its authority?” I was reminded of Huntington’s famous book, The Clash of Civilizations and the Remaking of World Order. He wrote on page 70, “rule of law, the concept of the centrality of law to civilized existence, was inherited from the Romans.” Medieval thinkers elaborated the idea of natural law as the basis on which monarchs were supposed to exercise their power. In England, the common law tradition developed.

In the face of absolutism in the 16th and 17th centuries, the rule of law was observed more in the breach than in reality, but the idea persisted of the subordination of human power to some external restraint. The tradition of the rule of law laid the basis for constitutionalism and for the theory of human rights, including poverty rights, against the exercise of arbitrary power.

We sometimes lose this perspective. We think that everybody shares this same understanding of law that developed in Western Europe. In our view, the prince or king, the government, or the president all come under the law. The law is sovereign, and those who exercise its authority operate under the rules and by the authority bequeathed to them by the law.

In former centuries, especially since the Westphalian Peace Treaty of 1648, we experienced a curious view of religion. Those of a different religion than the king often had to leave the country, to immigrate to the East. Later many immigrated to the West, to the New World. Many German believers immigrated to eastern Europe. They were even invited by the Russian czars, like Peter the Great and Catherine the Great. They took their belief with them and practiced it in their new homes. They built their own cities in Russia, from Novgorod in the north to Odessa in the south, with a guarantee from the czar that they could keep their own law and religion.

I find it interesting that in these contracts, or, better, these letters of guarantee, the Germans were forbidden to proselytize members of other churches. In order to ease tensions, they were allowed to proselytize only among other German immigrants, who usually were Protestants.

Immigration is no longer possible, at least on a broad scale. There is no empty space left for people suffering from religious discrimination and persecution. Therefore, we only have one choice: to live in pluralistic societies with as much religious freedom as possible.

In a treaty between Prussia under King Frederick the Great and the United States, signed in 1785, we find the following clause, probably a first in an international treaty. Article 11 of this contract says, “The most perfect freedom of conscience and of worship is granted to the citizens or subjects of either party within the jurisdiction of the other.”

This contract was valid from 1785 to 1917. Why did we lose this great principle? Frederick the Great said, “Every man may be saved according to his own religion.” In those days, such a sentence from a king was really extraordinary. The other royalty of Europe thought it was a scandal not because Frederick the Great was such a religious person, but just was not interested in religion. Nevertheless, this clause and attitude had great impact on the treatment of religions in Prussia.

Prussia became a safe harbor for many refugees in Europe, including French Huguenots, Jews, and many others. I think we lost this attitude with the emerging ideas of nations and nationalism at the end of the last century. After the Second World War, great efforts were made to restore to the conscience of people the ideas of religious freedom. The Universal Declaration of Human Rights in 1948, the UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Beliefs in 1982, the International Covenant on Civil and Political Rights in 1966, the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950, the concluding documents of the Vienna meeting in 1986, and the American Convention of Human Rights in 1978, are all examples of the efforts to ensure freedom of conscience and religion.

The idea of religious liberty has won extremely broad acceptance worldwide in our day. In every major international human rights declaration and treaty and almost every national constitution, this fundamental human right is recognized, although there are many variations and the extent to which this idea is implemented in the laws and constitutions in the real life of different countries varies. Even within the different religions you can find increasing support for religious liberty, which of course makes it easier for societies to create and enforce pluralism in their countries and to treat religious groups equally.

In “Religious Human Rights in the Global Perspective,” it is recognized that globalization is enhancing our sense of pluralism. Although there is still substantial religious practice in many parts of the world, or at least there are areas where one religious group is clearly in a majority position, on a global level there are no majority religions. This is a very important idea: that there are no majority religions on the global scale.

In Frankfurt, a Muslim group applied for a building permit for a mosque. The mayor denied this application for one reason. He said, there is no reciprocity, that is, Christian churches in Turkey suffer discrimination and persecution. This argument surely would not win in a courtroom and, in the end, this group will receive their permit. This example shows clearly that all religions are a minority in some part of the world and that we all have to learn to protect the rights of minorities.

We lost the ideal of religious liberty at the end of the last century due to the forces of nationalism, religious extremism, and other anti-liberal forces. There are still strong nationalist ideas in many countries of the world, especially in Orthodox countries, where you often find that nationalism goes together with a religious majority group, which makes it even more dangerous for religious liberty.

In the German Revolution of 1848 in Frankfurt, one member of the Parliament asked, “can’t we go back to the old times of law and order and have only one church for the whole country?” He proposed that the Constitutional Assembly, with government force, should combine all religious groups in Germany into one religion led by the Roman Catholics. His idea received only laughter from the audience, but this story makes clear there is no way back to those old times.

Umberto Eco wrote a well-known book about the origin of language and of speech. He relates the story of the Tower of Babel and how people afterward were cursed with different tongues so they couldn’t understand each other anymore. Eco said, “We were taught in school and from our religions to see it only as a curse. But we should try to see it as a chance for more diversity, more chances to express feelings.” He said it would be a great loss to the world if we lose even a single language—for instance, the Romanian language—forever.

The same might apply to religions. It is a great chance for a society to have such a wide variety of religions and so many different believers. Unfortunately, most churches do not like to hear that. They want to be the only one. They want to be the only son loved by the Father. They want to convince everyone else that they are the only one loved by the Father. Those people in the world who stand for religious liberty need courage. International accords help all decision-makers to keep in mind the great human right of religious liberty.

In Germany, state-church relations are not a federal matter because we took over the clauses from the constitution of 1919 after the Second World War without any significant changes. In the Ministry of Cultural Affairs and the different German states, there is one government official, usually a lawyer, who deals with questions concerning state and church relations. I know all of them personally, and, in fact I am invited to their annual meeting next week to discuss church-state matters. They are aware of the relevant international agreements and treaties. They want to follow them, but they are under pressure from religious groups in Germany that are fighting against other churches. They are the ones who implemented what we heard about yesterday—the anticult specialists for sects and new religious movements that are not connected to the government agencies. At first, they were implemented slowly, paid by the two major churches in Germany. In those countries where the Protestants have gained political power and influence, these former Sektenexperten were called to be ministers for cultural affairs.

In a discussion with one such minister about pamphlets issued against new religious movements, she said, “Why do you complain? These religious groups do not complain.” I said, “When you are the minister you should control your steps and yourself, and check if they are in compliance with our constitution and other international agreements. You should not pass a law or regulation knowing that it is unconstitutional.”

We have a new law in Austria, for instance, effective since January 1998, that is not in compliance with international agreements. The Austrian government surely is aware of this fact. I am going to have a meeting with a professor in Vienna who is working for the minister of cultural affairs on this subject. I also wrote a letter to a minister and hope that we can have a discussion in the near future.

In Romania, the draft for a new law on church-state relations defines in about 18 articles the different religious entities and totally forgets to mention individual religious liberty. We explained to them that this draft is not in compliance with international agreements and that they should work on it to avoid problems with the EC, the UN, and even NATO. Even more importantly, they should provide for religious freedom to avoid problems and future tensions in their own country.

Mr. Armor, the UN arbiter for religious intolerance, said in Rio de Janeiro in 1997 that reality mostly did not keep pace with international agreements. He urged the audience to have courage not only to defend religious liberty, but to use the international agreements as a tool. He said, “Religious liberty cannot be ordered. It needs understanding, belief, and education. International accords give us the recipe for religious liberty in this world and in all different states for living together in a pluralistic society. They help us to avoid tensions and conflicts between groups and peoples and, most importantly, give the individual his self-esteem and his fulfillment.” Mr. Armor visited Germany about six months ago and met with many representatives of minor churches and government officials. Afterward, he issued a report that is now being discussed in Germany.

It is so necessary to have meetings such as this one where we can have dialogue and speak about religious liberty in all countries so that we might fight against this trend against religious freedom. Public officials tend to make decisions to please the media. The media are against religions. Several years ago both the Protestants and Roman Catholics created a group of specialists in new religious movements to educate society about how dangerous these groups are. Recently, I read an internal report written by a Protestant pastor in which he said that this approach “backfires against themselves—against their own religion. We have to learn that we are all sitting in the same boat in so far as the trend is against religions.”

For instance, perhaps you remember that when we had the reunification of Germany, religions—especially Protestants—worked hard for reunification. People were visiting churches and having big meetings in the former German Democratic Republic. We thought that after reunification we would have a trend toward religions, but it was the other way around! The new unified Germany has some areas where only 20 percent of the population say they have some relation to religion. Eighty percent are just not religious.

From this trend you might understand some of the decisions in Germany. We just heard that Scientology is not recognized as a religion. This is not quite correct. They claim Scientology is a business. The same would apply to any other religion that has businesses connected to their church, even if the organization is a nonprofit entity.

There are lots of misunderstandings about what is going on in different countries, and I think it is really good that we are having this meeting where we can have dialogue to foster and help religious liberty in all countries.