Jelle Creemers is a professor and the academic dean of religious studies at the Evangelische Theologische Faculteit (ETF) in Leuven, Belgium.
The final judgment of the European Court of Human Rights (ECtHR) in the case of Executief van de Moslims in België and Others v. Belgium (13 February 2024) could not have been more clear. The seven judges unanimously held that the Flemish and Walloon decrees banning ritual slaughter of animals without prior stunning did not constitute a violation of Article 9 (freedom of religion or belief) or of Article 14 (nondiscrimination), read in conjunction with Article 9 of the European Convention on Human Rights (ECHR). This decision ended the appeal of several Belgian Muslim and Jewish organizations and individuals seeking a legal exemption that would allow them to slaughter animals according to their religious convictions. The ECtHR judgment prompted debate among, and critical feedback from, European FoRB experts.
This post reviews the case with particular attention to an element that was surprisingly absent from the Court’s reasoning: the vulnerability of the applicants and the impact thereof in preceding ECtHR rulings. It explores how the lens of vulnerability can shed new light on this Strasbourg judgment and what analysis through that lens may mean for the balance between freedom of religion and other public concerns.
Vulnerability Theory
The question of vulnerability is directly related to the idea of human flourishing. A concern for human flourishing—of individuals and communities—has become central in political philosophy and human rights law through Martha Nussbaum’s capabilities approach, which defines justice in terms of the opportunities people need to live a life worthy of human dignity.[1] Flourishing presupposes the recognition of human vulnerability.
This is where Martha Fineman’s vulnerability theory comes in.[2] Fineman asks us to move away from the classical image of the liberal legal subject, imagined as rational, autonomous and independent, and to focus instead on the vulnerable legal subject—an individual who is inherently fragile, embodied, dependent on others, and embedded in institutions. For Fineman, the state cannot limit itself to guaranteeing formal freedoms but has an active responsibility to build and sustain institutions that allow individuals and groups to cope with their inevitable vulnerabilities.
EMB and Others v. Belgium
Executief van de Moslims in België (EMB) and Others v. Belgium relates to decrees adopted in Flanders (2017) and Wallonia (2018), which ended long-standing exceptions that allowed ritual slaughter without prior stunning. The new laws required all animals to be stunned before slaughter, with reversible stunning permitted in case of religious slaughter.
Muslim and Jewish applicants, both individuals and organizations, argued that the new laws prevented them from organizing ritual slaughter in accordance with their religious precepts, in violation of ECHR Article 9 and Article 14 (in conjunction with Article 9).
The Strasbourg Court accepted that the laws interfered with religious freedom, but the Court recognized, for the first time, animal welfare as a legitimate ground that could justify such interference under Article 9(2). Referring to earlier judgments such as Friend v. United Kingdom (2009), the Court accepted that animal welfare could fall under the “protection of morals.” Because of the diversity of national approaches and the serious parliamentary and judicial debates in Belgium and at the EU level preceding this case, the Court gave Belgium a broad margin of appreciation in concluding unanimously that the laws did not violate either Article 9 or Article 14.
Debate on EMB and Others v. Belgium
This judgment has triggered significant scholarly debate. Some commentators, such as Lawson and Nakanishi, have applauded the way in which the Belgian Constitutional Court, the European Court of Justice, and the Strasbourg Court came to the same conclusion.[3] Others, such as Verniers, see the judgment as an important signal that animal welfare is increasingly taken seriously in European law.
At the same time, critical voices have spoken up. Theodor Schilling has argued that the Court gave far too much weight to animal welfare and too little to religious freedom.[4] Ní Chinnéide and Van de Graaf complain that the Court relied on process-based review, which risks leaving minority concerns at the mercy of majoritarian legislatures.[5] Critics also note that the proportionality analysis was weak, the comparison with hunters and fishers who are allowed to kill without prior stunning was dismissed too easily, and the possibility of importing meat is a fragile solution—a sunset clause, as Granet and Van Calster put it, since such imports may not be possible in the future if other countries follow Belgium’s lead.
Vulnerability in Strasbourg Jurisprudence
With this background in mind, let us now return to vulnerability reasoning and its place in Strasbourg jurisprudence. Fineman’s theory insists that vulnerability is not an exception but a universal and constant feature of human life. Every person is vulnerable, and institutions have the task of mitigating this vulnerability in ways that support resilience and flourishing. Scholars such as Monika Mayrhofer have noted that the concept of vulnerability sits uneasily next to concepts like inequality or intersectionality, but it nevertheless remains a valuable sensitizing tool.[6]
In the jurisprudence of the Strasbourg Court, the term has become increasingly visible. Al Tamimi has shown that by 2014, references to vulnerability appeared in nearly 8% of judgments, compared to less than 2% before 2007.[7] Vulnerability has been recognized especially in relation to groups such as detainees, children, asylum seekers, Roma, and people with disabilities.
Peroni and Timmer have argued that religious minorities, too, can be considered vulnerable groups, and in fact the Court has occasionally described them as such[8] Arnardóttir has stressed that recognizing vulnerability has consequences: it narrows the state’s margin of appreciation in discrimination cases and strengthens the level of protection minorities can expect.[9]
EMB and Others v. Belgium and Vulnerability
So how would this perspective change the reading of EMB and Others v. Belgium?
One relevant point is that vulnerability theory cannot be applied to animals in Strasbourg case law, since the ECHR is an anthropocentric instrument. Unlike the Belgian Constitution (Article 7bis) or EU regulations, the Convention does not provide a legal basis for granting animals the status of rights holders. So the vulnerability of animals cannot be taken into account in Strasbourg jurisprudence.
A second point is the applicants themselves. Can Muslims and Jews in Belgium be considered vulnerable groups? Looking at their history of discrimination in Europe, their dependence on state regulation for religious practices, and the recognition in EU and Council of Europe documents that religious minorities are at risk, the answer is yes. Interestingly, the Jewish applicants explicitly described themselves as a vulnerable group (para. 75) and asked for their cultural and religious specificities to be respected. That the Court ignored this self-identification and avoided using the language of vulnerability is remarkable, especially given that in other contexts it has not hesitated to recognize religious groups as vulnerable.
A third point is the possible impact of factoring vulnerability into the judgment. Had the Court recognized the applicants as vulnerable, such recognition would have narrowed Belgium’s margin of appreciation in view of Article 9. Instead of granting wide discretion, the Court should have applied stricter scrutiny to the interference with religious freedom. In relation to Article 14, vulnerability reasoning would have demanded more serious engagement with the discrimination claim, especially the comparison with hunters and fishers. And finally, a vulnerability perspective would have drawn attention to the long-term effects of the judgment: If other European states adopt similar bans, religious minorities will become increasingly vulnerable, unable to live according to their religious dietary precepts. By ignoring this future vulnerability, the Court has left minorities in a precarious position.[10]
Conclusions
What conclusions can be drawn from the above? Vulnerability analysis does not bring entirely new arguments to the case, but it does enrich existing reasoning and adds depth to the analysis. It weighs in strongly on the critical side of the debate, emphasizing that the Court could and perhaps should have taken more seriously the vulnerable position of religious minorities. As Heri has argued, such an approach enables responses to both individual needs and structural patterns of discrimination and powerlessness.[11] If flourishing is the ultimate horizon of human rights protection, then recognizing vulnerability is indispensable. It allows the law to see not only abstract freedoms but also the concrete fragilities of communities and traditions.
Had a vulnerability analysis been integrated in EMB and Others v. Belgium, the balance might have tipped toward stronger protection of religious freedom. Whether one agrees with that outcome or not, the exercise shows that attention to vulnerability matters for the future development of Strasbourg jurisprudence.
References:
[1] Her seminal work introducing the capabilities approach is MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (Cambridge Univ. Press 2000).
[2] Martha Albertson Fineman, Universality, Vulnerability, and Collective Responsibility, 16(1) LES ATELIERS DE L’ETHIQUE 103, 103–16 (2021); LAW, VULNERABILITY, AND THE RESPONSIVE STATE: BEYOND EQUALITY AND LIBERTY (Martha Albertson Fineman & Laura Spitz eds., Routledge 2024).
[3] Rick Lawson, Atlas Shrugged: An Analysis of the ECtHR Case Law Involving Issues of EU Law Since Opinion 2/13, 9(2) EUROPEAN PAPERS 647, 647–71 (2024); Yumiko Nakanishi, Judicial Dialogue Involving the Belgian Constitutional Court, Court of Justice of the European Union, and European Court of Human Rights with a Focus on Animal Welfare, 25(1) HITOTSUBASHI JOURNAL OF LAW & POLITICS 1,1–12 (2025).
[4] Theodor Schilling, Tierwohl schlägt Religionsfreiheit: Zum Urteil des EGMR in Sachen Executief van de Moslims van België u. a. ./. Belgien (16760/22 u. a.) vom 13. Februar 2024, 29(1) MENSCHENRECHTSMAGAZIN 61, 61–72 (2024).
[5] Harriet Ní Chinnéide & Cathérine Van de Graaf, Animal Welfare v Religious Freedom: Reflecting on the ECtHR’s Decision in Executief van de Moslims van België and Others vs. Belgium, EUROPEAN CONSTITUTIONAL LAW REVIEW 20 (2024): 678, 678–98.
[6] Monika Mayrhofer, The Concept of Vulnerability and Its Relation to the Concepts of Inequality and Discrimination – A Review Article, THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 1589, 1590–91 (24 April 2025).
[7] Yussef Al Tamimi, The Protection of Vulnerable Groups and Individuals by the European Court of Human Rights, 2016(5) EUROPEAN JOURNAL OF HUMAN RIGHTS 561, 561–83 (2016).
[8] Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law, 11 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 1056, 1056–85 (2013).
[9] Oddný Mjöll Arnardóttir, Vulnerability Under Article 14 of the European Convention on Human Rights, 4(3) OLSO LAW REVIEW150, 150–71 (2017).
[10] Note that in the neighboring country of the Netherlands, a similar law is in preparation. It is noteworthy that the Council of State recently (15 October 2025) gave a positive recommendation with reference to this ECtHR decision, without giving any attention to the sunset clause.
[11] CORINA HERI, RESPONSIVE HUMAN RIGHTS: VULNERABILITY, ILL-TREATMENT AND THE ECtHR 106, 146 (Hart Publishing 2021).