An EU Report on Concordats

Different NGOs, including the European Humanist Federation, asked the All Party Working Group on the Separation of Religion and Politics of the European Parliament to examine the issue of concordats in Europe. The parliamentary group asked for a legal report on the impact of concordats on European legislation. As a result the EU Network of Independent experts on Fundamental Rights has deposited a report, titled The Right to Conscientious Objection and the Conclusion by EU Member States of Concordats with the Holy See, which focuses especially on the Draft Treaty between the Slovak Republic and the Holy See on the Right to Objection of Conscience (see: http://www.europa.eu.int/comm/justice_home/cfr_cdf/doc/ avis/2005_4_en.pdf). According to the Network, the Treaty is in contradiction with fundamental laws, which the Slovak Republic has signed as a member state of the European Union.

In March 2003 the Holy See and the Slovak Republic started negotiations on the Treaty. Once ratified, the text will have the status of a treaty under international law. Therefore, as I argued before (IHN Concordats and International Law), even if the Treaty is legal from a formalistic point of view, its content also has to respect fundamental rules of international law. As we read in Article 53 of the Vienna Convention on the Law of Treaties, (Vienna Convention on the Law of Treaties (1969), Article 53)

“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” 1

The Proposed Concordat with Slovakia

And that is where the shoe pinches, according to the Network. For it notes that the Draft Treaty currently under consideration by the Slovak Republic may lead to 1. the State violating its obligations under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women and 2. a violation of the obligations of the Slovak Republic under Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

The biggest problem resides in article 4 (b) which states that The right to exercise objection of conscience shall apply to performing certain acts in the area of healthcare, in particular acts related to artificial abortion, artificial or assisted fertilisation, experiments with and handling of human organs, human embryos and human sex cells, euthanasia, cloning, sterilisation or contraception. In paragraph 2 of the same article they add that The Slovak Republic undertakes not to impose an obligation on the hospitals and healthcare facilities founded by the Catholic Church or an organisation thereof to perform… one of the just mentioned activities.

Human Rights vs. Freedom of Religion

It cannot be excluded in principle that certain religious organisations have a right not to perform certain activities, where this would conflict with the ethos or belief on which they are founded. This idea is not unknown to either the European Convention on Human Rights or to European Community law, both of which recognize that not only individuals, but also organisations, may invoke freedom of thought, conscience and religion to protect the inner faith and the external manifestations of this inner faith, as it translates into words or acts (article 9 ECHR).

However, it is important that the exercise of this right does not conflict with the rights of others, including the right of all women to receive certain medical services or counselling without any discrimination. When we know that approximately 70% of the population in the Republic of Slovakia is Catholic, then there is a risk that the recognition of a right to exercise objection of conscience in the field of reproductive healthcare will make it in practice impossible or very difficult for women to receive advice or treatment in this field, especially in the rural areas. Even if article 6 (2) of the Draft Treaty states that The exercise of objection of conscience must not endanger human life or human health, it is doubtful that this will be interpreted to imply the legal liability of health care practitioners which would refuse to counsel women on how to interrupt their pregnancy or on contraceptic devices, where they seek to shield themselves from such liability by invoking Article 4 (1) (b) of the Draft Treaty.

In conclusion we can say that this report constitutes a first but important finding on the problem of concordats that was an achievement for the Humanists, thanks to the support of European Humanist Parliamentarians.

Jenoff Van Hulle is International Relations Officer of European Humanist Federation (www.humanism.be)