Despite many obstacles and postponing, the Resolution on “Sharia, the Cairo Declaration and the European Convention on Human Rights” was finally adopted on 22nd January 2019 in Strasbourg by the Parliamentary Assembly of the Council of Europe.
This resolution - though not binding - is of major political importance: it testifies of an awareness that Islamic law constitutes a legal-religious order competing with the law stemming from Western modernity, both in Europe and in the world. Because there is a competition today, and even rivalry, between sharia law and Western legal rationality based on freedom and equality. Both systems claim to be the only one that suits Man, universally. In Europe, this competition is mainly exercised in the field of family law; at the global level, it is exercised as to the very comprehension of law and human rights. This resolution also reveals the weakness of Europe in the face of this politico-religious phenomenon.
Sharia is already applied in Europe…
First of all, the Assembly of the Council of Europe “is also greatly concerned about the fact that Sharia law – including provisions which are in clear contradiction with the Convention – is applied, either officially or unofficially, in several Council of Europe member States, or parts thereof”. Namely mainly Greece, Chechnya and the United Kingdom.
It regrets that the Greek authorities have not yet abolished the application of Sharia law in Thrace, where it continues to formally regulate relations within the Muslim community since its annexation to Greece after the First World War. The Assembly “denounces in particular the fact that in divorce and inheritance proceedings – two key areas over which muftis have jurisdiction – women are at a distinct disadvantage”. Moreover, these procedures do not offer a satisfactory guarantee. Thus, the presence of a lawyer is not required, the decisions are final and cannot be appealed. As for the Greek courts supposed to supervise these jurisdictions, the Parliamentary Report written in support of the resolution deplores the fact that they “provide a mere façade of review, ratifying 99% of the decisions they receive.”
The Assembly declares it is “also concerned about the “judicial” activities of “Sharia councils” in the United Kingdom”. These private and informal bodies provide advice and deliver judgments in matters of divorce (including child custody and financial matters), as well as inheritance and commercial law. Their operation is even more opaque than in Greece. Mostly connected to mosques, there could be as many as eighty-five, in England and Wales alone. Although lacking official jurisdiction, these parallel “courts” consider themselves legitimate authorities within “their” community. In fact, only they are able to pronounce an Islamic divorce at the request of the wife; yet, many Muslim couples married only religiously [that is, the marriage was not conducted by an authorised celebrant” and thus not legal or officially recognised], depriving the wife - sometimes very young at marriage - of the guarantees offered by civil divorce proceedings. She is then locked into the marriage, the Islamic community and the Islamic law because she is often ignorant of her civil rights and remedies in British courts. This is all the more worrying as these Sharia councils are not sufficiently respectful of women’s rights and as some have been, according to the Report, “condoning wife-beating, ignoring marital rape and allowing forced marriage”. In Greece, other councils of this type have “have also officiated at a number of Muslim weddings by proxy without the express consent of the brides, who are sometimes underage”.
Sharia law is also applied in the North Caucasian Federal District, and more specifically in Chechnya (Russian Federation). Surprisingly, the Assembly says nothing about it, even though it is particularly violent and discriminatory against women. Perhaps it is due to the suspension of the participation of the Russian Federation in the same Assembly since its intervention in Crimea.
Informal Islamic Courts may exist in other Council of Europe member States
The Assembly has the real merit of warning that “informal Islamic Courts may exist in other Council of Europe member States too”. In fact, they appear spontaneously within Muslim communities living on the margins of society, as it is natural for an Islamic community to be governed by its Islamic law. Moreover, the Quran provides for the application of Islamic law when the Muslim population is the majority in a given territory. It is therefore important for European states to be vigilant.
Once settled within “their” community, it becomes very difficult to remove these Islamic courts. This is particularly the case in the United Kingdom, where the Parliament must now choose between banning these parallel bodies, at the risk of making them more clandestine, and regulating them, which amounts to giving them official judicial jurisdiction and implies the establishment of a confessional multi-legal system (which Islamic law actually also provides for).
Surprisingly, the Assembly does not ask the United Kingdom to put an end to the application of sharia on its territory (as it did to Greece), but calls on it to “ensure that Sharia councils operate within the law, especially as it relates to the prohibition of discrimination against women, and respect all procedural rights”. It also calls on the United Kingdom to “make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony”. This difference in approach between the United Kingdom and Greece may be explained by the demographic importance of the Muslim communities present in their respective territories: millions across the Channel against a hundred thousand in Thrace.
Towards the recognition of Islamic courts in the United Kingdom?
The Assembly therefore calls on the United Kingdom to opt for formalization. Yet, it is precisely on the conditions of such a formalization that the European Court ruled on 19 December in the case of Molla Sali v. Greece. In that judgment, it accepted the very principle of the existence of a multi-legal confessional system and laid down its conditions. This is the very heart of the judgment, which some newspapers and commentators did not want to see, even though it occupies the central place in the press release drafted by the Court. The Court stated that states are not bound by religious freedom, but may, if they so wish, “create a particular legal framework in order to grant religious communities a special status entailing specific privileges”. She laid down three conditions. The first (with an ambiguous wording) seems to impose onto the State the obligation to offer all religious communities the right to benefit, without discrimination, from such a “special status” when it offers it to one of them. The second obliges the State to make the use of religious status optional and voluntary, in preference to ordinary law. This condition is based on the dubious assumption of consent, assuming that people would be socially “free” to submit to or escape the application of Sharia law. The third condition concerns the content of religious norms: they can be chosen in place of common law unless “an important public interest” opposes them. This notion of interest is vague and evolutionary; moreover, the Court does not specify in the judgment whether the inheritance inequality of which Muslim women are victims in Greece collides with such an interest.
Thus, in this judgment, the Court shows European governments how to allow the official application of Sharia norms in their territory, if they do not want to, or can, prohibit it. A clear impression of compromise emerges from the Assembly’s resolution and from the Court’s judgment. The Court followed the recommendation of the Greek Government to “conduct a case-by-case examination of each rule of Sharia law applying to actual cases concerning Muslims residing in non-Muslim States”, so as to bear in mind “respect for multiculturalism in today’s Europe.”
Islamic law, at least as far as family law is concerned, could therefore be accepted in Europe because of multiculturalism. Through such a multi-legal system, supporters of liberalism may hope to neutralize Sharia by formalizing it, while Islamists will hope on the contrary to gradually extend its application and, in so doing, the autonomy of their community.
Islamic law promoted by some Council of Europe member states
The problem with the application of Sharia law in Europe does not only concern people, but also States. It is indeed a “great concern” as the Assembly points out, that three Council of Europe member states, Albania, Azerbaijan and Turkey, have “endorsed, explicitly or implicitly, the 1990 Cairo Declaration”. Yet this “Declaration on Human Rights in Islam” is presented as an Islamic version of the major declarations of rights, such as the Universal Declaration of Human Rights. It states, among other things, that all men are born Muslims and that “All the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia”. Unsurprisingly, it denies the equality of people regardless of gender and religion, and does not guarantee freedom of expression, religion nor marriage.
This Declaration was adopted by the Organization of Islamic Cooperation (OIC), the second largest intergovernmental organization after the UN, equally with the OSCE. It includes 57 Muslim-majority states and represents a population of more than 1.3 billion people spread over about a quarter of the Earth’s surface. Its temporary seat is in Jeddah “until the liberation of the city of al Quds” that is to say Jerusalem. This organization, made possible by the fact that Islam does not distinguish religion from politics, aims primarily “to enhance and strengthen the bond of unity and solidarity among the Muslim peoples and Member States”, “to endeavour to work for revitalizing Islam’s pioneering role in the world” or help Muslims communities living in non-Muslim countries to “preserve their dignity, cultural and religious identity”
As such, it works internationally to adapt international law to sharia law. Thus, it has tried for years to impose to the United Nations the recognition of an international crime of “defamation of religions”. It also works to make Sharia the law that officially governs relations between Muslim states. For example, the OIC has established an International Islamic Court of Justice with jurisdiction to rule on any question of international law, including inter-State conflicts. Its statute, adopted in 1986, provides that sharia is its “fundamental law”, while international law is a secondary source from which it “can draw inspiration”. The OIC has also established, among other things, an independent Permanent Human Rights Commission to promote fundamental rights “in conformity [the] Islamic principles”. In other words, the dual membership of the OIC and the Council of Europe poses a real problem as these bodies are based on opposing and competing values. The Assembly of the Council of Europe, however, did not ask Albania, Azerbaijan, or Turkey to leave the OIC, but only invited them to “consider[…] withdrawing from the Cairo declaration” and to establish clearly and formally the primacy of the European Convention on Human Rights over this Declaration.
All Turkish and Azerbaijani deputies present voted against the Resolution
Unfortunately, the 14 Turkish and Azerbaijani deputies present at the vote all voted against the Resolution; they were the only ones. The Turkish deputies are all members of the government coalition of President Erdoğan. Eight other deputies abstained, members of liberal and far-left parties.
This Resolution has the merit of alerting on Sharia, its application in Europe and the fact that it is conceived by many States as a global system, alternative and superior to contemporary international law, including the human rights. In the face of Islamic law, the Resolution opposes a list of values, such as pluralism, tolerance, openness, gender equality, non-discrimination, or the idea that “where human rights are concerned, there is no room for religious or cultural exceptions”.
These are two universal conceptions that confront each other, one liberal and agnostic (even atheist), the other totalitarian and religious. Each one thinks it can win. However, the opposition between liberalism and sharia offers no satisfactory solution, since both systems have in common the denial of the very foundation of human rights, namely the existence of a natural right that can be known by reason in observing human nature, and that exists independently of the arbitrary will of “Allah” or individuals. In the absence of human nature, why refuse Islamic polygamy when we accept same-sex marriage? Why refuse repudiation when facilitating express and unilateral divorce? Why refuse “voluntary excision” when voluntary abortion and euthanasia are rights? If ending one’s life is a right, why not that of being mutilated? He who can do more can do less. Thus, by symmetrical means, agnostic liberalism and Islamic sharia sometimes lead to the same result. And it may well be that the first paves the way to the second, in a climate of tolerance and pluralism.
Only a return to modest and objective understanding of human rights, grounded in natural law, would make it possible to escape this conflict of civilizations. Human rights would then regain their universality, because human nature remains universal. It was possible 70 years ago when the Universal Declaration was adopted. Islam had not yet erupted, and Western countries had not yet professed atheism and individualism, still knew that man was naturally religious, communal and traditional, and could still understand the rest of the world.
Seventy years ago, the Council of Europe was founded to protect “free Europe” from the communist danger, both inside and outside. He did this by promoting democracy and respect for rights. It is now a question of facing another danger, both inside and outside: political Islam. Universal values, this time, will probably not be enough to overcome them, because they do not respond well to the religious, community and traditional nature of people. Europe will only succeed if it gets back to its own Christian identity.
Translated by BMG
 The Council of Europe, not to be mistaken with the European Union, counts 47 Member states, including Russia and the Caucasus countries, and is mainly responsible for human rights. The European Court of Human Rights is one of its organs.