There are many reactions to the results from the referendum in Switzerland that tries to impose a ban on further construction of minarets in the country. However, most of them are (understandably) quite emotional.
From a political perspective a lot must be done now to assess the reasons for that vote. After all, 53,4% of the Swiss electorate voted and 57,5% of the votes have approved the ban on construction of new minarets.
However, I am much more interested in the legal analysis of that referendum. Back in October 2009 experts from the UN Human Rights Committee voiced concerns that the ban will infringe human rights protected by the International Covenant on Civil and Political Rights. They said that the initiative should have been declared inadmissible under the Swiss Constitution. The experts probably referred to a violation of art. 18 of the Covenant:
1. 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.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. 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.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”
Switzerland does not have a reservation on art. 18 and therefore it is fully applicable. That much is certain. However, we now know that being a party to this international covenant will not necessarily produce an observable direct impact. That leads us to the question – Even if Switzerland does violate the Covenant on Civil and Political Rights, what can we do?
Well, Switzerland is also part to the Convention for the Protection of Human Rights and Fundamental Freedoms. Art. 9 of the Convention:
“Article 9 . Freedom of thought, conscience and religion
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 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.”
I believe that this text will be used to challenge the ban both before Swiss courts and later – before the European Court of Human Rights (ECHR) in Strasbourg. From what we know about the jurisprudence of ECHR, this legal challenge will probably succeed.
The issue is of great importance to the European Union as well. Switzerland is surrounded by the EU and the Union is an essential trade and political partner for the country. Provided that the ban does violate the relevant international human rights law and the European Convention on Human Rights in particular, this will inevitably strain relations between the parties and may lead to serious consequences for Switzerland.
From a legal perspective I would also like to point out that introducing such a ban is currently impossible in any EU Member State, irrelevant of the local political challenges.