First, a few thoughts on how we should try to approach difficult questions concerning freedom of thought, conscience and religion. The general understanding in Europe has been that there are universal rights. In Europe the secular state does its best to guarantee that the rights of all are respected, as long as they do not harm the freedom of others to practice their beliefs. Outside Europe we try to promote human rights.
The Council of Europe and the European Union are built on the premises of human rights and fundamental freedoms. Membership requires respect for fundamental rights.
Switzerland is still a member of the Council of Europe, party to the European Convention on Human Rights and subject to the European Court of Human Rights. The Swiss can contravene the European Convention only by renouncing their membership.
The exact scope for different rights is a difficult issue, where we need discussion at European level to find satisfactory solutions. It is not easy, and we will probably see trial and error.
If we want to find principles applicable to all on issues concerning religious symbols (headscarves or crucifixes in secular state schools, for instance), we have to look towards ethical rules:
The Golden Rule, reciprocity, Kant’s categorical imperative.
Did the Swiss ban church towers and belfries as well? If not, then their vote is discriminatory.
Here are a few examples of lawyers who have analysed the Swiss minaret ban on their blogs:
Actualités du droit, Gilles Devers: Minarets: C’est illégal, et la Suisse devra renoncer (30 November 2009)
Verfassungsblog, Max Steinbeis: Schweiz: Diktatur der Mehrheit (30 November 2009)
European Union Law, Vihar Georgiev: The Swiss Ban on Minarets: Legal implications (30 November 2009)
The blogs discuss the matters from different angles (Swiss, European and international law; referendums and minority rights), but their conclusions are clear. There is a contradiction between the Swiss referendum result and the international obligations of Switzerland.
Let the corrective mechanisms take over. They can at least right the wrong in a legal sense, although they can do little to improve the image of Switzerland and the Swiss.
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