Conscience Protection Under International Treaty
Introduction
In 2003, the Slovak Republic and the Holy See began drafting a Treaty that made provisions for increased protection for freedom of conscience in the Slovak Republic. Although freedom of conscience is already protected by domestic law in Slovakia , it would have
been reinforced by the Treaty between the Slovak Republic and the Holy See on the Right to Objection of Conscience" (hereafter "the Treaty"). The Treaty would have set out the scope and terms for exercising the right to "objection of conscience." The Slovak Republic would be obligated to respect and/or implement this right into national law. "Objection of conscience" was defined as an objection raised in conformity with the principle of the freedom of conscience, according to which anyone may refuse to act in a manner that he deems incompatible, in his conscience, with the teachings of faith and morals of the Catholic Church.
Had the government and the National Council of the Slovak Republic approved the Treaty, Slovakia would have been the first country in the world that secured conscience protection by a particular international treaty with the Holy See. This international legal instrument would have bound the Slovak Republic not to breach the freedom of conscience for its citizens and to guarantee this freedom under Slovak laws. The Treaty also required the Slovak Republic not to impose an obligation on organizations (hospitals and healthcare facilities) founded or to be founded in the future by the Catholic Church to perform abortions, artificial or assisted fertilizations, experiments with or handling of human organs, human embryos or human sex cells, euthanasia, cloning, sterilizations and acts connected with contraception.
Three other European countries currently have concordats regarding conscience protection with the Holy See: Italy, Latvia, and Portugal. However these treaties only provide for religious exemption in regards to military service. As noted, the proposed concordat with Slovakia provided much more comprehensive protection. According to Article 4 (1) of the Treaty, the right to conscientious objection would apply in the following areas:
I. The service in the armed forces or an armed corps, including conscription service;
II. Performing certain acts in the area of healthcare, in particular acts related to artificial abortion, artificial or assisted fertilization, experiments with and handling of human organs, human embryos and human sex cells, euthanasia, cloning, sterilization or contraception;
III. Activities in the field of education, in particular those relating to Articles 12 and 13 of the Basic Treaty between the Slovak Republic and the Holy See ;
IV. Provision of legal services;
V. Labor law and other employment relationships falling under the scope of the Treaty.
The Treaty would have bound the Slovak Republic to allow professionals and Catholic medical institutions to refuse to perform procedures such as abortion and in vitro fertilization because they contradict their conscience or the ethos and teaching of the Catholic Church. The Treaty would not outlaw abortion on demand, which in Slovakia is legal until the twelfth week of pregnancy, for any reason. If an issue would arise in connection with the interpretation or execution of this Treaty, it was to be resolved through mutual consultations of Slovakia and the Holy See. The Treaty would establish a joint commission to identify changes that should be made in Slovak law.
A. Negotiations between the Holy See and the Slovak Republic
On November 24, 2000, the Slovak Republic and the Holy See signed the Basic Treaty between the Slovak Republic and the Holy See (hereafter "the Basic Treaty"). The Basic Treaty regulates the relationship between the Slovak Republic and the Catholic Church in the Slovak Republic. In the Basic Treaty, the Slovak Republic recognized that everybody has the right to objection of conscience according to the teaching on faith and morals of the Catholic Church. A future treaty was to be concluded between the Holy See and the Slovak Republic regarding the scope of, and the conditions for the exercise of, this right. Therefore, the Slovak Republic had an international obligation to enter into an additional treaty on the right to objection of conscience.
The Basic Treaty also obligates the Slovak Republic to sign additional treaties with the Holy See regarding Catholic education, the pastoral care of Catholics in the armed forces, and financial support of the Catholic Church. The first two of these additional treaties have been ratified with the Catholic Church.
B. Effect on Other Religious Organizations and Societies
In order to maintain religious equality, a model of the Basic Treaty between the Slovak Republic and the Holy See was used also for other churches and religious societies in Slovakia. The Agreement between the Slovak Republic and the registered churches and religious societies on the right to objection of conscience (hereafter "the Agreement") was drafted simultaneously with the specific conscience protection Treaty between the Slovak Republic and the Holy See. The draft
Agreement is identical with the Treaty, and it guarantees that the Slovak Republic will not "impose an obligation" on the hospitals and healthcare facilities founded by the registered churches and religious societies to perform certain specified activities. It also obliges the Slovak Republic to implement in law the right for objection of conscience of physicians associated with other religions.
C. Conscience Protection and Domestic Politics
The political party which was the main proponent of the Basic Treaty between the Slovak Republic and the Holy See, and therefore also of the draft Treaty on conscience, was the Christian Democratic Movement (KDH party). Within Slovakia, preparation of the Treaty on conscience was the responsibility of the Ministry of Justice, led by Minister Daniel Lipic from the KDH party. In the beginning, the Treaty was supported by Prime Minister Dzurinda's Slovak Democratic and Christian Party (SDKZ), the leading party in the government coalition, as well as the Hungarian Coalition Party (SMK).
The Manifesto of the Government of the Slovak Republic of 2002, which is a political agreement between government coalition parties, agreed to complete the Treaty and the Agreement. However, in 2004, the coalition's liberal party, Alliance of the New Citizen (ANO), came out in the opposition to the Treaty. Later in the 2005, the SDKZ refused to support the Treaty. After this political decision, KDH party decided to leave the government, and pre-term elections were held.
ANO and the secular-humanist organization, Prometheus, which is primarily concerned with protecting non-religious Slovakian citizens, initiated a petition in November 2005 against the Treaty that was signed by more than twenty-one thousand people. Catholics and Protestants together with the pro-life organization, Forum for Life, circulated their own petition in support for the Treaty. This petition was signed by more than 111, 000 people.
D. Conscience Protection in Slovakia and the European Union
There was no official reaction from the European Union on the Treaty between the Slovak Republic and the Holy See on the Right to Objection of Conscience. There was, however, a major initiative opposing the Treaty from the European Parliament as well as campaigns by non-governmental organizations.
In May 2005, 52 members of the European Parliament from fourteen countries and six parliamentary fractions signed a letter opposing the Treaty and sent it to Prime Minister Mikula Dzurinda. This was an initiative of the European Parliament working group for the Separation of Religion and Politics, and was supported by the international non-governmental, non-Catholic organization, Catholics for a Free Choice.
Two major concerns were raised about the Treaty. The first concern was that the Treaty would be discriminatory against non-Catholics and would be contradictory to the draft Constitution of the E.U., especially to the draft Charter of Fundamental Rights of the E.U. Secondly, the letter stated that the Treaty was superfluous because Article 10 (2) of the E.U. Charter guarantees the right to conscientious objection. In addition, the letter claimed that the Slovak Republic had sufficient domestic legislation to protect freedom of conscience.
Dzurinda also received a letter opposing the Treaty signed by 130 representatives of non-governmental organizations from around the world. (This was also an initiative of Catholics for a Free Choice). This second letter made similar accusations to the ones in the first. The letter alleged that the Treaty would make Catholic doctrine the highest principle for exercising the right to conscientious objection. Moreover, according to the NGO signatories, the Treaty would violate the principle of separation between Church and State as provided for in the Constitution of the Slovak Republic, as well as in existing Slovak commitments to the Convention on Elimination of all forms of Discrimination against Women (CEDAW) and the International Conference on Population and Development Programme of Action (ICPD).
One of the main weaknesses of these criticisms was that the arguments were based on the draft Constitution and Charter of the E.U., which was never ratified (being rejected by France and the Netherlands). Because the Constitution and Charter were never ratified, they can hardly serve as a legal standard against which the Treaty could be judged.
The main concern of critics was about sexual and reproductive rights interpreted so as to include abortion. But no such international right exists, and many countries in the E.U. (for example Poland, Malta, or Ireland) have stricter rules on abortion than Slovakia. The second weakness in their criticisms was that they were based on an old draft of the Treaty and did not acknowledge that similar agreement drafted between the Slovak Republic and registered churches and religious societies, thereby preventing freedom of conscience from being limited only to Catholics. The Ministry of Justice of the Slovak Republic stated that the letter of the members of the European Parliament was based on false information provided by a feminist organization from Slovakia. The feminist organization did not inform the E.U. about the parallel agreement with other registered churches and religious societies.
In December 2005, the E.U. Network of Independent Experts on Fundamental Rights released their report on the Treaty after receiving complaints from the Center for Reproductive Rights, Catholics for a Free Choice, and the International Planned Parenthood Federation. While the document acknowledged the changes in the second draft, it also maintained concerns about the Agreement, especially concerning the status of women's health as well as the status of other religious groups. Section 5.2 of the report states: "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." The report held that since seventy percent of the country's population is Catholic, if a doctor were to refuse to perform a procedure based on issues of conscience, there would be limited options for the patient, resulting in discrimination. "The right to religious conscientious objection may be and should be respected, but with safeguards that make it possible for women to seek legal abortion. This is the problem the draft text may be posing," said Professor Oliver de Schutter, who headed the commission.
The report maintains that the state must make sure that there are policies in place so that if a physician refuses to perform a legal abortion, a woman will be told where she can go to get the procedure and that it be easily accessible to her. A representative of the Slovakian government replied, saying, "The objective of the agreement is to ensure that every individual can apply their right to the objection of conscience. It is neither right nor just for a doctor-gynecologist, who is for example a supporter of the culture of life, to be forced to perform an abortion." Furthermore, many proponents of the Treaty felt that providing a woman with information about physicians that do perform abortions would be a conscience violation, as the physician in question would be cooperating in providing an abortion.
With regards to other religious groups in Slovakia, the report acknowledged the Agreement drawn up in Slovakia between the government and recognized religious institutes, but felt that it was not sufficient. It noted that the domestic Agreement only provided protection for people falling within a registered religious organization. However, for those not included in this category, there was no guarantee of conscience protection. Also, since the Treaty between Slovakia and the Holy See was an international agreement on human rights, it would have precedence over Slovak law. This would not be the case for the Agreement between the government and other religions.
But these complaints did not correctly refer to the wording and purpose of the Treaty. According to Article 3 (2) of the Treaty, "anyone may refuse to act in a manner that he deems incompatible, in his conscience, with the teachings of faith and morals" of the Catholic Church. Since the teaching of the Catholic Church about freedom of conscience is arguably the most extensive in the world, and the Treaty would protect freedom of conscience for all, including non-Catholic believers and nonbelievers. Article 5 of the Treaty says that the "right to exercise objection of conscience shall be implemented in conformity with the legal system of the Slovak Republic and within its limits." The role of the Slovak Republic would then be to enact such laws, which would be in accordance with both the Treaty and the Agreement, but which would cover freedom of conscience for all people no matter what their religion is.
Concerning the different legal status of the Treaty with the Holy See and the Agreement with other churches, this is due to the fact that the official representative of the Catholic Church is the Holy See, which is a legal subject of international law, while other churches are not. The Basic Treaty w ith the Holy See ratified in 2000 is an international treaty, while the basic Agreement between the Slovak Republic and the registered churches and religious societies ratified in 2002 is a domestic agreement. This has been the traditional contractual framework with churches in Slovakia. Previously, this difference was never considered as a problem. The Holy See has been an independent legal personality in international matters for hundreds of years. This simple fact does not constitute discrimination against other churches.
E. Conclusion: Effect of the Proposed Treaty on the Slovak Republic
Prime Minister Dzurida withdrew his support for the Treaty and the Agreement in early 2006, citing outside criticism as well as jurisdiction issues, and he refused to allow a vote on the Treaty until after the September 2006 elections. Following this decision, the KDH party left Slovakia's governing coalition, and several key leaders resigned, including Minister of Justice Daniel Lipic. This forced government elections to be held in June, rather than September 2006. On June 17, 2006, Dzurinda and his party were replaced by Robert Fico and the left-wing Direction-Social Democracy party (Smer). Smer received twenty-nine percent of the vote, while SDKU received eighteen percent and KDH received eight percent. According to Duan aplovic, the new deputy prime minister, the new government "will not launch any initiative" with regards to the Treaty. However, the international obligation of the Slovak Republic under the Basic Treaty to enact the Treaty on Conscience still exists, and this issue will probably come up again in 2010 when new parliamentary elections will be held.
Discussion of the Treaty and the Agreement has had a significant impact on freedom of conscience in Slovakia. Even though neither the Treaty nor the Agreement was ratified, discussion of this issue had a positive influence on Slovak national law, and there was progress in protection of freedom of conscience in Slovak national legislation in the last few years. In fact, the freedom of conscience is, within certain specified limits, now granted for medical workers, pharmacists, soldiers, armed forces, attorneys, teachers, and in general for all employees. Political struggles over the Treaty and the Agreement helped to raise public awareness about freedom of conscience. All this can help to build a free and just society in Slovakia, where nobody will be forced to act in contradiction with his or her conscience and beliefs.
William L. Saunders is Senior Fellow and Director of the Center for Human Life & Bioethics at Family Research Council. Pavol Kubik is a journalist and Patrik Daniska is a lawyer in Slovakia. Both were Witherspoon Fellows at the Family Research Council.
Appendix A
TREATY
Between the Slovak Republic and the Holy See on the Right to Objection of Conscience
(Unofficial translation)
The Slovak Republic and the Holy See,
Recognising the freedom of conscience in the protection and promotion of values intrinsic to the meaning of human life,
Emphasising this recognition in relation to the freedom of thought and freedom of religion,
Recognising human life, human dignity, meaning of human life, family and marriage as the highest universal values, which are at the source of common good and, as such, must be protected from loss or injury and from impediments to their development and generational handing down,
Declaring the will to protect the right to human life, human dignity, human physical integrity, human biological and psychological identity, family and marriage, invoking the commitments given in the Basic Treaty between the Slovak Republic and the Holy See, signed in the Vatican on 24 November 2000 (hereafter the "Basic Treaty"),
And
The Slovak Republic, applying the Constitution of the Slovak Republic, and the Holy See, applying the teaching of faith and morals of the Catholic Church,
Have agreed as follows:
Article l
The Slovak Republic and the Holy See (hereafter "Contracting Parties") conclude this Treaty with the aim to set out the scope and terms of exercising the right to objection of conscience in conformity with Article 7 of the Basic Treaty.
Article 2
The Contracting Parties recognise the freedom of conscience regarding human life, human dignity, the meaning of human life, family and marriage, and the right of everyone to freely exercise objection of conscience in relation to these universal human values.
Article 3
(1) For the purposes of this Treaty, "principles of the teaching of faith and morals" means the principles proclaimed in the Magisterium of the Catholic Church.
(2) For the purposes of this Treaty, "objection of conscience" means an objection raised in conformity with the principle of the freedom of conscience according to which anyone may refuse to act in a manner that he deems incompatible in his conscience with the teaching of faith and morals.
(3) The term "to act" includes participating in an act or any other activity of unspecified duration connected with such act, including assistance.
Article 4
(1) The right to exercise objection of conscience shall apply to:
VI. the service in the armed forces or an armed corps, including conscription service,
VII. 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,
VIII. activities in the field of education, in particular those relating to Articles 12 and 13 of the Basic Treaty,
IX. provision of legal services,
X. labor law and other employment relationships falling under the scope of this Treaty.
(2) 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 artificial abortions, artificial or assisted fertilisations, experiments with or handling of human organs, human embryos or human sex cells, euthanasia, cloning, sterilisations, acts connected with contraception, and not to make the establishment or operation of a hospital or a healthcare facility founded by the Catholic Church or an organisation thereof conditional on the performance of the aforementioned activities.
Article 5
The right to exercise objection of conscience shall be implemented in conformity with the legal system of the Slovak Republic and within its limits. In setting out the scope and manner of exercising the right to objection of conscience, the Slovak Republic shall take care to preserve the essence and the meaning of this right.
Article 6
(1) The exercise of objection of conscience shall not entail legal liability of the person who has exercised that right.
(2) The right to invoke objection of conscience shall not be exercised in a manner leading to the misuse of that right. The misuse of the right to objection of conscience shall not entail protection from legal liability. The exercise of objection of conscience must not endanger human life or human health.
Article 7
(1) The Contracting Parties shall resolve contentious issues arising in connection with the interpretation or execution of this Treaty through mutual consultations. The Contracting Parties shall supply information to one another, in particular as regards individual activities falling under the scope of objection of conscience, and information concerning the drafts of generally binding legal acts that have a bearing on objection of conscience.
(2) The Contracting Parties shall set up a joint commission with an advisory status for the purposes of executing this Treaty. The joint commission shall have a parity composition and include three representatives of each Contracting Party; it will be convened at least twice a year or at any time when so requested by a Contracting Party. The tasks of the joint commission shall include, in particular:
a) monitoring the areas and particular activities in respect of which objection of conscience may be invoked,
b) submitting comments concerning the drafts of generally binding legal acts and making legislative proposals concerning the right to objection of conscience and preventing its misuse,
c) evaluating the implementation of this Treaty,
d) submitting proposals with a view to amending or supplementing this Treaty.
Article 8
The present Treaty can be changed and amended to include the facts that are not covered by the Treaty through written agreement of the Contracting Parties.
Article 9
This Treaty is concluded for an unlimited period and shall be terminated by agreement of the Contracting Parties or upon the termination of the Basic Treaty.
Article 10
This treaty shall be subject to ratification and shall enter into force as from the thirtieth day date from the date of exchange of the instruments of ratification.
Done in ........on.......... in two original copies, each in the Slovak and the Italian languages, both texts being equally authentic.
For the Slovak Republic:
For the Holy See:
Appendix B
AGREEMENT
Between the Slovak Republic and the Registered Churches and Religious Societies on the right to objection of conscience
(Unofficial translation)
The Slovak Republic
And
The Evangelical Church of the Augsburg Confession in Slovakia,
The Reformed Christian Church in Slovakia,
The Orthodox Church in Slovakia,
The Evangelical Methodist Church, Slovak province,
The Brotherly Union of Baptists in the Slovak Republic,
The Brethren Church in the Slovak Republic,
The Church of Seventh-Day Adventists, Slovak association,
The Apostolic Church in Slovakia,
The Central Union of Jewish Religious Communities in the Slovak Republic,
The Old Catholic Church of Slovakia,
The Czechoslovak Hussite Church in Slovakia,
As churches and religious societies registered under Act No. 308/1991 Coll. on freedom of religious faith and the status of churches and religious societies as amended by Act No. 394/2000 Coll. (hereafter "registered churches and religious societies"),
Recognising the freedom of conscience in the protection and promotion of values intrinsic to the meaning of human life,
Emphasising this recognition in relation to the freedom of thought and freedom of religion,
Recognising human life, human dignity, the meaning of human life, family and marriage as the highest universal values, which are at the source of common good and, as such, must be protected from loss or injury and from impediments to their development and generational handing down,
Declaring the will to protect the right to human life, human dignity, human physical integrity, human biological and psychological identity, family and marriage, invoking the commitments given in the Basic Agreement between the Slovak Republic and the Registered Churches and Religious Societies No. 250/2002 Coll. (hereafter the "Basic Agreement"),
And
The Slovak Republic based on the Constitution of the Slovak Republic, and the registered churches and religious societies based on the teaching of faith and morals of these registered churches and religious societies,
have agreed as follows:
Article l
(1) The Slovak Republic and the registered churches and religious societies (hereafter "Contracting Parties") conclude this Agreement with the aim to set out the scope and terms of exercising the right to objection of conscience in conformity with Article 7 of the Basic Agreement.
(2) Registered churches and religious societies mean those registered churches and religious societies that are parties to the Basic Agreement and to this Agreement.
Article 2
The Contracting Parties recognise the freedom of conscience in relation to human life, human dignity, the meaning of human life, family and marriage, and the right of everyone to freely exercise objection of conscience relating to these universal human values.
Article 3
(4) For the purposes of this Agreement, "principles of the teaching of faith and morals" means the principles proclaimed by registered churches or religious societies.
(5) For the purposes of this Agreement, "objection of conscience" means an objection raised in conformity with the principle of the freedom of conscience according to which anyone may refuse to act in a manner that he deems incompatible in his conscience with the teaching of faith and morals.
(6) The term "to act" also includes participating in an act or any other activity of unspecified duration connected with such act, including assistance.
Article 4
(1) The right to exercise objection of conscience shall apply to:
XI. the service in the armed forces or an armed corps, including conscription service,
XII. performing certain acts in the area of healthcare, in particular acts related to artificial abortion, artificial or assisted fertilisation, experiments with or handling of human organs, human embryos and human sex cells, euthanasia, cloning, sterilisation or contraception,
XIII. activities in the field of education, in particular those relating to Articles 12 and 13 of the Basic Agreement,
XIV. provision of legal services,
XV. labour law and other employment relationships falling under the scope of this Agreement.
(2) The Slovak Republic undertakes not to impose an obligation on the hospitals and healthcare facilities founded by the registered churches and religious societies or organisations thereof to perform artificial abortions, artificial or assisted fertilisations, experiments with or handling of human organs, human embryos or human sex cells, euthanasia, cloning, sterilisation, acts connected with contraception, and not to make the establishment or operation of a hospital or a healthcare facility founded by a registered church or a religious society or organisations thereof conditional on the performance of the aforementioned activities.
Article 5
The right to exercise objection of conscience shall be implemented in conformity with the legal system of the Slovak Republic and within its limits. In setting out the scope and manner of exercising the right to objection of conscience, the Slovak Republic shall take care to preserve the essence and the meaning of this right.
Article 6
(1) The exercise of the objection of conscience shall not entail legal liability of the person who has exercised that right.
(2) The right to invoke objection of conscience shall not be exercised in a manner leading to the misuse of that right. The misuse of the right to objection of conscience shall not entail protection from legal liability. The exercise of objection of conscience must not endanger human life or health.
Article 7
(1) The Contracting Parties shall resolve contentious issues arising in connection with the interpretation or execution of this Agreement through mutual consultations. The Contracting Parties shall supply information to one another, in particular as regards individual activities falling under the scope of objection of conscience, and information concerning the drafts of generally binding legal acts that have a bearing on the objection of conscience.
(2) The Contracting Parties shall set up a joint commission with an advisory status for the purposes of executing this Agreement. The joint commission shall have a parity composition and include six representatives of each Contracting Party; it will be convened at least twice a year or at any time when so requested by a Contracting Party. The tasks of the joint commission shall include, in particular:
e) monitoring the areas and particular activities in respect of which objection of conscience may be invoked,
f) submitting comments concerning the drafts of generally binding legal acts and making legislative proposals concerning the right to objection of conscience and preventing its misuse,
g) evaluating the implementation of this Agreement,
h) submitting proposals with a view to amending or supplementing this Agreement.
Article 8
This Agreement may be amended and supplemented so as to include the facts that are not contained therein by written agreement of the Contracting Parties.
Article 9
(1) This Agreement shall enter into force as from the first day of the calendar month following its approval by the National Council of the Slovak Republic, and shall take effect as from the date of its publication in the Collection of Laws of the Slovak Republic.
(2) This Agreement is concluded for an unlimited period and shall be terminated by agreement of the Contracting Parties or upon the termination of the Basic Agreement.
(3) This Agreement shall be open for accession to other churches and religious societies registered in conformity with the legal system of the Slovak Republic. They shall apply for accession in writing, and the decision on the application shall be made by the registered churches and religious societies that are parties to this Agreement and whose statutory representatives signed this Agreement. Accession to the Agreement must be approved by all the Contracting Parties.
Done in Bratislava ................ in sixteen original copies.
For the Slovak Republic:
For the registered churches and religious societies:
The Evangelical Church of the Augsburg Confession in Slovakia,
The Reformed Christian Church in Slovakia,
The Orthodox Church in Slovakia,
The Evangelical Methodist Church, Slovak province,
The Brotherly Union of Baptists in the Slovak Republic,
The Brethren Church in the Slovak Republic
The Church of Seventh-Day Adventists, Slovak association,
The Apostolic Church in Slovakia
The Central Union of Jewish Religious Communities in the Slovak Republic,
The Old Catholic Church in Slovakia,
The Czechoslovak Hussite Church in Slovakia,