The symbolism of places of worship and their place in urban aesthetics: exploring the role of international law

Having had to spend the better part of last year on bed rest, I had considerable time to devote to researching and writing about the protection of places of worship under international law. While my article, soon to be published in Ephemerides Iuris Canonici, briefly touched upon a rather thought-provoking question on whether places of worship could also be considered as religious symbols, I was unable to delve into it due to constraints of space and coherence. However, peer-reviewers, colleagues, and even myself (if I can immodestly say so) recognized it as one of the most interesting aspects of the article. After submitting the final draft, the question continued to nag at me, prompting me to embark on a new side-project. While I have only drafted an extended abstract and shared it with a few colleagues, their insightful feedback has raised numerous pertinent questions, which could potentially take a decade to fully explore. Nevertheless, I am confident that this is a worthwhile research topic, and I continue looking forward to any future feedback.

The presence of places of worship represents one of the few aesthetic aspects common to cities and urban settlements in parts of the world otherwise characterized by profound social, cultural, and religious diversity. In addition to its spiritual aspects, and regardless of the actual spread of religious sentiment among members of a community, religion constitutes one of the founding elements of various regional, national, and local cultures; and places of worship are often not only spaces where religion is cultivated and practiced, but also symbols of a territory, a nation, or a culture.

International law recognizes and protects both the religious and cultural functions of places of worship. On one hand, the establishment and maintenance of places for the expression of religious sentiment, the association of individuals practicing the same religion, and the manifestation of religion in all its forms are direct expressions of the norms on freedom of religion present in the main human rights protection instruments, such as Article 18 of the Universal Declaration of Human Rights, Article 18 of the International Covenant on Civil and Political Rights, Article 9 of the European Convention on Human Rights, or Article 10 of the Charter of Fundamental Rights of the European Union. On the other hand, the issue of protecting places of worship has long been part of the United Nations agenda for a variety of reasons - reasons that include, among others, the need for states to adopt essential measures to ensure respect for places of worship as part of the broader obligation to respect religious freedom, and the attention to the risks of violence and attacks against places of worship. Such attacks are often motivated both by the religious function of the said places of worship as well as by their relevance at a cultural level for the communities to which they belong. Reference is made here in particular to Articles 53 and 16 respectively of the First and Second Additional Protocols to the Geneva Conventions of 1949, according to which 'any act of hostility directed against historic monuments, works of art or places of worship that constitute the cultural or spiritual heritage of peoples' is prohibited.

The international legal scholarship has often addressed the issue of protecting places of worship, even - if not primarily - indirectly, as part of broader investigations into protecting the cultural life of people in situations of conflict (and to a lesser extent, as mentioned beforehand, as an expression of the norms protecting freedom of religion or belief). The issue of the role of religion in the culture of people, however, raises a further question regarding the visibility of the place of worship and its role in the aesthetics of a community. The Committee of the Regions of the European Union, first and foremost, has reiterated the importance of places of worship within a inhabited centre as an expression of the cultures and identities of the communities residing there. The Committee also recommended that member states collaborate with religious authorities in order to support the construction and maintenance of places of worship, not to subject them to state control, but to confirm the role of such places within a community and prevent them from becoming centres of radicalization. It can therefore be argued that the issue of protecting places of worship under international law concerns not only the physical protection of the site but also its visibility and its space within the territory of the community in which it is located.

Although one might think that the issue of the visibility of religion is essentially a socio-political rather than a legal issue - and that, even if it were legal, it would be mainly a matter of domestic law - the problem has actually been addressed in the case-law of international courts and tribunals. However, looking at such case-law, it appears that the said courts and tribunals focus primarily on the right of members of religious minorities to manifest their beliefs through symbols in situations where prohibitions and restrictions are typically based on genuine or alleged reasons of public order. With regard to places of worship the issue obviously becomes more problematic: on the one hand, a place of worship is, in itself, a religious symbol, and as such an expression of the right to manifest one's religion guaranteed by all the main instruments for the protection of human rights; on the other hand, especially in countries where the coexistence of different beliefs has not always been peaceful, reasons of public order can actually justify certain limitations on the visibility of places of worship. However, aside of confessional states (whose compatibility with international law has been in fact called into question by some scholars), the processes of globalization and, above all, the massive migratory movements of the last thirty years have led to the construction of societies that are not only multi-ethnic but also multi-religious. Limitations on the erection and maintenance of places of worship, if not justified by serious reasons of public order, would thus amount to discrimination both according to the norms on the protection of religious freedom as well as those on the protection of the rights of minorities. Attacks and violence against places of worship are part of strategies to erase the identities of minority groups within states and communities; conversely, the current multiculturalism of most Western states cannot ignore the protection of places of worship, and - I suggest - their visibility. Is it possible to conceive of the protection of an individual's or a community's identity without the symbols of that identity or community being visible?

The question finds only a partial answer in the instruments aimed at protecting freedom and religious identity. The aforementioned treaties (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the ECHR, and the Charter of Fundamental Rights of the European Union) protect the right to practice one's religion through its rites; there is no explicit provision for the specific protection of the spaces in which such rites take place - or, rather, the aesthetics of such spaces. The relevant case-law also does not clarify the issue, as both reasons of public order (a concept that seems to change in shape in each state, and on the assessment of which international tribunals have traditionally granted a wide margin) and interactions with other fundamental human rights have often led to limitations on the display of religious symbols by individuals.

Therefore, the possibility of a limitation of the visibility of the place of worship - and therefore a limit to the application of international law norms on religious freedom - could be at least imagined in cases where such visibility constitutes a real or potential problem of public order, or to the extent that the place displays discriminatory symbols. Even outside of these cases, however, there cannot be an excessive margin of appreciation for states with regard to the aesthetics of the places of worship present in their territory. Just as the display of religious symbols in an individual's clothing can only be limited for serious and proven reasons of public order, so too must it be considered regarding the public display of religious symbols in the spaces of a community. This is consistent with both the rules on religious freedom, aimed at protecting the spiritual aspects of a religion or creed, and with the provisions of the 1954 Hague Convention and additional protocols to the Geneva Conventions aimed at protecting the cultural identity of a population.

The objective of this study is therefore to explore whether a place of worship can be considered a religious symbol, and the ramifications of each possible answer to this question. If the answer is affirmative, the interpretation of the rules for the protection of religious freedom proposed by the ECHR and the Human Rights Committee involves, on one hand, the risk that the aesthetics of places of worship may be subject to limitations justifiable as 'necessary measures, in a democratic society, for public safety, the protection of order, health or morals, or the protection of the rights and freedoms of others' and, on the other hand, the possibility of a proliferation of visibly conspicuous constructions intended for the practice of any religion or belief. If, on the other hand, the place of worship is not - despite clear aesthetic references - a religious symbol, a reflection is necessary on the effectiveness of a protection regime for places of worship in international law that ignores the cultural aspects of religion in times of peace to make them predominant (with all that follows in terms of protecting freedom of religion or belief) in situations of conflict.