COUNTERING ISLAMOPHOBIA IN EUROPE – Book Sample
Islamophobia in European Human Rights Law- EU Directives
According to the European Monitoring Centre on Racism and Xenophobia (EUMC), Muslims experience higher unemployment rates (EUMC 2006, p. 11), poorer housing conditions and increased homelessness (EUMC 2006, p. 13).
Moreover, Muslims are shown to experience discrimination through ‘negative stereotyping’ and acts of hatred ‘from verbal threats through to physical attacks on people and property’. Given that, according to the EUMC, Islamophobia is a multi-dimensional problem involving disproportionate limitations on freedom of religion, discrimination and social exclusion, it is crucial that EU member states fully implement the relevant EU Law Directives (EUMC 2006, p. 109).
The two main discrimination law instruments in EU law deal with the phenomenon of Islamophobia in indirect ways. The Directive 2000/43/EC implements the principle of equal treatment between persons irre-spective of racial or ethnic origin in employment, education, social security and protection, healthcare, and access to goods and services.
As its focus is on discrimination on grounds of racial or ethnic origin, the Directive 2000/43/EC applies to religious discrimination, albeit only in an indirect way, that is, in cases of ‘multiple’ (see mutatis mutandis para. 15 of the Preamble) or intersectional discrimination involving, for instance, religion, gender and ethnic origin. This is potentially useful, as it is arguable that many cases of Islamophobia could be framed as cases of intersectional discrimination involving race or ethnic origin and religion. However, it is noteworthy that there are no cases before the European courts, including the CJEU (Court of Justice of the European Union), following this path to date.
The second relevant EU law Directive is the Employment Equality Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation. The Employment Equality Directive aims to guarantee an equal playing field regardless of religion or belief, albeit only in employment and occupation. As with the Directive 2000/43/EC, its engagement with Islamophobia is also indirect. The Employment Equality Directive includes ‘religion’ and ‘belief’ among the prohibited grounds of direct discrimination, indirect discrimination and harassment.
Thus, given that Islamophobia often motivates, and finds expression in, various forms of religious and intersectional discrimi-nation in the workplace, the full implementation of the Employment Equality Directive by EU member states is crucial. On a conceptual level, what is also useful is that the Employment Equality Directive highlights that equal access to employment is one of the key aspects of effective social integration (in para. 11).
Finally, it is noteworthy that the Employment Equality Directive places significant emphasis on the importance of social dialogue to foster equal treatment, including through monitoring, exchange of good practices and dialogue with NGOs (arts. 13 and 14).
Another Directive which is relevant to Islamophobia is the Television Broadcasting Directive 1989/552/EEC, which bans incitement to hatred on grounds of racism and religion in EU television programmes (art 22). More specifically, it provides that television advertising should not ‘be offensive to religious or political beliefs’ (art 12).
Given that Islamophobia is closely linked to the dissemination of inaccurate or negative representa-tions of Muslim groups and individuals in television programmes and advertising, the Television Broadcasting Directive could be helpful for policy makers. The same concern with incitement to hatred is reflected in the EU Council Framework Decision 2008/913/JHA on combating rac-ism and xenophobia by means of criminal law. This Framework Decision by the Council of the EU is relevant to Islamophobia as it examines reli-gion as a part of hate speech and discrimination. It includes a legal duty on EU member states to criminally penalise public incitement to racist violence or hatred, and to consider racist or xenophobic motivation as an aggravating factor (art 4). This includes groups defined by religion and therefore the Framework Decision applies to hate speech and discrimina-tion against Muslims.
The Council of Europe
The Council of Europe, both through the work of its Parliamentary Assembly (PACE) and through the work of the European Commission Against Racism and Intolerance (ECRI), has directly addressed Islamophobia and religious discrimination through a significant number of non-binding resolutions and recommendations.
Their common char-acteristic is a holistic and mixed approach to framing Islamophobia, which is described predominantly as a multifaceted problem of arbitrary limitations on religious freedom, unlawful (religious and intersectional) discrimination and social exclusion of Muslim groups and individuals. The first Recommendation directly addressing Islamophobia is the ECRI General Policy Recommendation No. 5 on combating intolerance and discrimination against Muslims (ECRI General Policy Recommen-dation No. 5 2000).
It was adopted in 2000 and represents one of the first attempts of the Council of Europe to engage directly with inaccurate portrayals of Islam. According to the Recommendation No. 5, Islamophobia can manifest itself in different guises, which often include violence and harassment. States are required to respond through promoting social integration and solidarity between individuals and groups from different cultural and religious backgrounds. More specific positive duties on the member states of the Council of Europe include equal protection of the right to freedom of religion—and most notably religious manifestation through worship and other forms of religious practice, which must be equally protected regardless of religion.
It is noteworthy that Recommendation No. 5 stresses that Islamophobia is a multifaceted prob-lem manifested through unlawful restrictions on the right of Muslims to manifest their religion in public, religious discrimination and social exclusion. Due to its multifaceted form, state responses to Islamophobia require interventions both on the realm of general policy and on the role of core institutions, including employment, education and the media. It is important to ensure that those core structures encourage diversity and do not perpetuate prejudice against Muslims. Finally, it is noteworthy that Recommendation No. 5 specifically recognises the intersectionality of discrimination against Muslim women, who are often affected by both gender discrimination and Islamophobia.
ECRI’s description of Islamophobia as a multifaceted problem of restricted religious freedom, religious (and intersectional) discrimination and social exclusion has proved very influential on the formulation and scope of a significant number of relevant Resolutions and Recommendations issued by the PACE. In the 2008 Resolution 1605 on European Muslim communities and extremism (PACE Resolution 1605 2008a), PACE warns member states against any confusion between Islam as faith and Islamic fundamentalism as an ideology (PACE Resolution 1605 2008a, para. 2). Islamophobia is described again as a problem both of religious discrimination and of social exclusion of Muslims, which can be addressed through positive measures such as providing fair access to…
Complaints of Violations of Freedom of Religion or Freedom from Religious
Discrimination by Muslim Applicants- The European Court of Human Rights: Overview
There is a notable disconnect between the soft-law instruments discussed above and the jurisprudence of the ECtHR. On the one hand, it is a common characteristic among the relevant Recommendations and Resolutions of the Council of Europe that they target actions and positive duties on a (Member) State level and do not include sufficiently clear directions for the interpretation of the relevant human rights norms by supranational judicial bodies, such as the ECtHR or the CJEU.
On the other hand, the ECtHR has not placed any significant emphasis on the recommendations and resolutions of the Council of Europe on Islamophobia. There are different reasons for this. Arguably, only a lim-ited number of cases involving Muslim applicants complaining about religious discrimination have reached the ECtHR so far.
Moreover, and more generally, until fairly recently cases on religious discrimination have been framed as cases on unjustifiable limitations on the right to freedom of religion, which gave limited opportunities to the Court to develop its jurisprudence on religious discrimination. In addition, it is noteworthy that NGOs have intervened before the ECtHR in only a handful of cases on Islamophobia, whereas data on Islamophobia are also scarce in the case law of the ECtHR. All those characteristics limit to a significant extent the potency of the case law of the ECtHR as a potential source of counter-narratives of Islamophobia: on the contrary, the jurisprudence of the ECtHR is patchy, includes very limited refer-ences to Islamophobia and, as a result, is liable to a heightened danger of majoritarian bias.
To be even more specific, the moment these lines are written the ECtHR has considered 39 cases in total, which involve applications by Muslim individuals (or groups of individuals) complaining about a viola-tion of their right to freedom of religion (secured under Article 9 ECHR) and/or their right to freedom from religious discrimination (secured
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