Religion, Migration, and Existential Wellbeing

Theorizing the Role of Religion in Contemporary Migration and Integration Governance

Moa Kindström Dahlin,Oscar Larsson,Anneli Winell

• Editore: Routledge
• Anno: 2020
• ISBN:
  9781000191028
• Edizione: 1
• Argomento: Teologia e religione
• Categoria: Religione, politica e Stato

This book uses the very latest research to examine current interactions between religion, migration and existential wellbeing. In particular, it demonstrates the role of religion and religious organizations in the social, medical and existential wellbeing of immigrants within their host societies. By focusing on the role and politics of religion and religious organisations as well as the religious identity and faith of individuals, it highlights the connection between existential wellbeing, integration and social cohesion.

The book brings together researchers from various disciplines taking on the challenge to elaborate on the theme of this book from different perspectives, using different methods and theories with a wide selection of cases from various parts of the world. The value of multidisciplinary research on the role of religion in a globalised society – locally, nationally and internationally – is important for understanding the composition and potential solutions to social and political problems. Religious aspects and organisations are present in legal, political and social forms of governance and form the basis for future research on e.g. secularisation, democracy, minorities, human rights, welfare, healthcare and identity formation. These and other related topics are discussed in this book.

This book is an up-to-date and multifaceted study of how religion engages with the mass movement of peoples. As such, it will be of great interest to any scholar of Religious Studies, Migrant Studies, Sociology of Religion, Religion and Politics, as well as Legal Studies with a human right focus.

Part I

Historical and constitutional aspects of religious diversity

1 Religious freedom and equality rights, and their contentious implementation
Norm conflicts deriving from the chasm between international and national human rights¹

Annette Schnabel, Heiko Beyer, and Kathrin Behrens

Introduction

June 26, 1945: Representatives of the 50 countries met in the auditorium of the Veterans’ Memorial Hall in San Francisco to sign what President Truman would later call a document with which “the world can begin to look forward to the time when all worthy human beings may be permitted to live decently as free people” (United Nations 2018).

The San Francisco Conference was one of the largest international gatherings ever: 850 delegates from 50 countries, their advisors and staff members added up to about 3,500 people (United Nations 2018). They drafted, discussed, and finally signed the Charter of the United Nations and Statute of the International Court of Justice, the foundational treaty of the United Nations which is still the most comprehensive intergovernmental organisation. The Charter of the United Nations contains the first international commitment to uphold human rights outlined as broadly formulated fundamental principles. In Article 56 of the Charter all members pledge to support in separate or joint action the goals that are specified in Article 55:

1. higher standards of living, full employment, and conditions of economic and social progress and development;
2. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
3. universal respect for, and observance of human rights and fundamental freedoms for, all without distinction as to race, sex, language, or religion.

The UN Charter was signed in reaction to the Holocaust and a period of unbelievable terror and war. Its purpose was to “save succeeding generations from the scourge of war, which twice in our life-time has brought untold sorrow to mankind” (Preamble of the UN Charter) and to secure international peace and security.

Not long after that, on December 10, 1948, the Universal Declaration of Human Rights (UDHR) was adopted as Resolution 217 by the United Nations General Assembly with 48 out of 56 votes. In 30 Articles Resolution 217 specifies what was previously subsumed sparsely in Article 55 c. Its content can be traced back to past historic bills as “The French Declaration of the Rights of Man and of the Citizen” from 1789 and the “United States Bill of Rights” from 1791. While until then, human rights were exclusively a matter of national governments and their constitutions, the UDHR was a major step towards “legal globalisation” (Teubner 1992): Its ratification was accompanied by the hope to reduce the likelihood for another great war (Morsink 1999: 13). It was designed to be realised and enforced by trans-national institutions which were considered a necessary prerequisite. However, at the beginning of the Cold War its success was slowed down and an agreement about its enforcement seemed to be highly unlikely. Contrary to the hope that the UDHR would become a binding human rights treaty that all member states of the UN were obliged to adopt, the UDHR is still more of a recommended standard than a binding document.

However, the UDHR constitutes the most fundamental international framework of civil, political, and social rights protecting the inherent dignity of the person, civil and political rights of individuals and collectives, rights of women, minorities, and ethnic groups, environmental rights, and social rights (Nickel 2017). Because of its character as universal moral principles, the UDHR has to be implemented into national law to become legally binding and enforceable. This leads to specific potentials for norm conflicts on different levels.

In recent years, such conflicts gained particular visibility regarding the topic of religion: freedom of religion and conscience, the freedom to manifest one’s religion or belief by worshipping, teaching, practice, and observance, and the prohibition of discrimination based on an individual’s religious beliefs became topics of contestation – especially in the supposedly secularised Europe.

Our article recognises three respective types of conflicts. (i) The most fundamental one refers to inconsistencies between the UDHR on the one hand, and national constitutions in Europe on the other. Although most states rhetorically accept the implementation of religious freedom in national constitutions there is no simple ‘copy and paste’ process. A specific issue regards the religious freedom of worship that some European constitutions restrict on the basis of the ‘preservation of public’ and ‘moral order’ or ‘public health.’ In those cases, the state does not only safeguard the religious freedom of its citizens, but at the same time restricts this freedom in order to protect itself against what is considered as a potential threat caused by religious actors, practices, and organisations. Such threats may be based on manifest actions or abstract religious programs directed against the constitutional or societal order.² (ii) A second source of conflicts derives from the contradiction between global human rights’ universalism and the particularism of state religions which implicitly or explicitly support a specific set of religious beliefs and practices. Some constitutions even guarantee special rights and privileges for church organisations or church members. (iii) Finally, while the human rights regime guarantees individual freedom of religion, this right – especially the freedom of worshipping – may conflict with other individual rights and freedoms – for example, the physical integrity of children (which may be seen as at risk due to circumcision practices), non-discrimination of women (which is incompatible with religious dogma and practices which forbid the exercise of religious professions or the free access to public spaces for women), or the free choice of sexual partners (since some religious denominations forbid e.g., homosexual relationships). The article will discuss these types of norm conflicts in the context of Europe using both a quantitative document analysis of European constitutions and case studies.

The ambivalent liaison of human rights and national constitutions

Although it can be understood as an expression of the most fundamental values of the international community, the Universal Declaration of Human Rights is not a treaty as such and by that, it does not create legal obligations for countries. The UDHR therefore is seen as soft law referring to “non-legally binding instruments used in contemporary international relations by States and international organisations” (Boyle 2006: 119/120).³ Their protection through adjudication depends on the individual country’s legal system. It, however, gave rise to legally binding international agreements such as the UN Human Rights treaties, comprising among others, of the “International Covenant on Civil and Political Rights,” the “Genocide Convention,” the “International Convention on the Elimination of All Forms of Racial Discrimination,” the “Convention on the Elimination of All Forms of Discrimination Against Women,” the “Convention on the Rights of the Child,” and the “Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.” Besides such UN-conventions unfolding their obligating powers by ratification or accession, national constitutions are a major source of protecting human rights:

Article 56 of the UN Charter obligates member states to take ‘joint and separate action’ to promote observance of human rights and fundamental freedoms for all. Within a country, means of promoting international human rights include incorporating international norms into a state’s constitution and criminal law; creating limits on federalism; and, promoting human rights through propaganda and education.

(Nickel 2017)

By that, the UDHR neither entails mere moral obligations nor does it establish de facto personal legal rights. It comprises, as Benhabib (2016: 88) puts it, “political and legal principles” restricting the political will of sovereign entities.

However, translating moral obligations into nationally enforceable law is complicated and creates tensions and various conflicts. Such tensions and conflicts develop from contradictions between human rights claiming universal validity for all human beings on one hand, and on the other, the obvious individual differences and the enormous variations between geographical regions’ regarding specific worldviews, (religious) beliefs, traditions, customs, practices, the disparate degrees of institutionalisation and the different shapes of the economic and political systems. When faced with this variety, the universality paradigm seems to offer no satisfactory solution to the problem of legitimation. Literature on human rights and constitutions suggest two lines of arguments addressing contradictions resulting from this “legitimisation deficit” (Benhabib 2016: 77).

Relativist critiques

First, contradictions can emerge because every justification of human rights may be considered as necessarily bound to particular ideas about actionality, needs and desires, and rationality of human beings. This so-called relativist viewpoint argues that all ethical, legal, and political standards are related to traditional, historical, and cultural contexts and are highly path dependent. They encompass even different convictions about humanity and what unifies human beings (for a summary see Stewart and Thomas 1991).⁴ Most relativist perspectives seem to draw their conclusions from empirical observations about moral conflicts as anthropologically ubiquitous and as based on seemingly fundamental “cultural differences” (Stewart and Thomas 1991: 85).

The relativist perspective suggests that even the UDHR cannot be universal and applicable to all societies. Critiques therefore accuse the UN human rights regime of arrogance, intolerance, and imperialistic intentions (James 1999; Risse-Kappen et al. 1999). Feminist activists – among others – made this point very prominently. They argue that women and their position in society have not been considered enough during the process of negotiation of the UDHR as women have not been involved in the drafting process of the documents. The critiques point to the fact that the UDHR is grounded in the idea that men and women are born equal. However, women are excluded from public life in many countries. Because they are not included in the political sphere, they cannot seize their civic and political rights. Additionally, violence against women most often occurs in the private sphere among family members. The UDHR does not protect women against such inner-familiar threats (Okin 1998: 33 ff.). During the last decades, this critique gave rise to a broader debate about women’s rights as human rights, to the enactment of the “Convention on the Elimination of All Forms of Discrimination Against Women” (CEDAW) in 1979 which is now ratified by 189 states.⁵

The second example of criticism concerns the accusation of cultural hegemony of the UDHR: Especially representatives from the Global South advocate that the UDHR is based on predominantly Christian values and values of the European area of Enlightenment (e.g., Spivak 2004: 531). During the 1990s, representatives of Asian countries required the consideration of so-called ‘Asian Values’ such as the prioritisation of social harmony over personal freedom, compliance with political leaders and political institutions, personal responsibility, and hard work for the collective good (Bell 1996: 659 ff.). This request cumulated in the ‘Vienna Declaration’ at the Vienna World Conference on Human rights in 1993 acknowledging “the significance of national and regional particularities and various historical, cultural and religious backgrounds” (Art. 5 of the Vienna Declaration).

Constitutional defences

While the human rights themselves are a target of critiques of moral relativism, their realisation in constitutional texts is confronted with different challenges. Although the UDHR constitute international norms that shall protect people from severe political, legal, and social abuse, their implementation and enforcement dep...