When within the European Union the Lisbon Treaty was elaborated, the negotiators easily reached agreement on subjecting the EU to the constraints of the European Convention on Human Rights (ECHR). It seemed to be an anomaly that all the Member States should be subject to the review power of the Strasbourg Court of Human Rights (ECtHR) while the EU itself was exempt from that control procedure.
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Over 30,000 migrants, including rape and torture victims, are detained in the UK in the course of a year, a third of them for over 28 days. Some detainees remain incarcerated for years, as Britain does not set a time limit to immigration detention (the only country in the European Union not to do so). No detainee is ever told how long his or her detention will last, for nobody knows. It can be days, it can be years.
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On 1 July 2014, the Grand Chamber of the European Court of Human Rights (ECHR) announced its latest judgment affirming France’s ban on full-face veil (burqa law) in public (SAS v. France). Almost a decade after the 2005 controversial decision by the Grand Chamber to uphold Turkey’s headscarf ban in Universities (Leyla Sahin v. Turkey), the ECHR made it clear that Muslim women’s individual rights of religious freedom (Article 9) will not be protected. Although the Court’s main arguments were not the same in each case, both judgments are equally questionable from the point of view of protecting religious freedom and of the exclusion of Muslim women from public space.
The recent judgment was brought to the ECHR by an unnamed French woman known only as “SAS” against the law introduced in 2011 that makes it illegal for anyone to cover their face in a public place. Although the legislation includes hoods, face-masks, and helmets, it is understood to be the first legislation against the full-face veil in Europe. A similar ban was also passed in Belgium after the French law. France was also the first country to ban the wearing of “conspicuous religious symbols” – directed at the wearing of the headscarf in public high schools — in 2004. Since then several European countries have established policies restricting Muslim religious dress.
The French law targeted all public places, defined as anywhere not the home. Penalties for violating the law include fines and citizenship lessons designed to remind the offender of the “republican values of tolerance and respect for human dignity, and to raise awareness of her penal and civil responsibility and duties imposed life in society.”
SAS argued the ban on the full-face veil violated several articles of the European Convention and was “inhumane and degrading, against the right of respect for family and private life, freedom of thought, conscience and religion, freedom of speech and discriminatory.” She did not challenge the requirement to remove scarves, veils and turbans for security checks, also upheld by the ECHR. The ECHR rejected her argument and accepted the main argument made by the government: that the state has a legitimate interest in promoting a certain idea of “living together.”
By now, it is clear that Article 9 of the European Convention does not protect freedom of religion when the subject is a woman and the religion is Islam. While this may seem harsh, consider the ECHR’s 2011 judgment in Lautsi v. Italy, which found the display of the crucifix in Italian state schools compatible with secularism.
In Lautsi case, the Court argued that the symbol did not significantly impact the denominational neutrality of Italian schools because the crucifix is part of Italian culture. Human rights scholars have not missed the contrast between the Italian case and the earlier 2005 decision in Leyla Sahin v Turkey where the Court found that the wearing of the headscarf by students was not compatible with the principle of laicité or secularism.
The Court did not make a value judgment in SAS case about Islam, women’ rights in Islamic societies, or gender equality, as it did in earlier cases where they upheld bans on the wearing of the headscarf by teachers and students in France, Turkey and Switzerland. In all cases involving Islamic dress codes, the ECHR emphasized the “margin of appreciation” rule, which permits the court to defer to national laws.
The ECHR acted politically and opportunistically not to challenge France’s strong Republicanism and principles of laicité, sacrificing the rights of the small minority of Muslims who wear the full-face veil. Rather than protecting the individual freedom of the 2000 women, the ECHR protected the majority view of France.
The ECHR is the most powerful supra national human rights court and its decisions have widespread impact. Several countries in Europe, such as Denmark, Norway, Spain, Austria, and even the UK, have already started to discuss whether to create similar laws banning the burqa in public places. This raises concerns that cases related to the cultural behavior and religious practices of minorities could shift public opinion dangerously away from the principles of multiculturalism, democracy, human rights and religious tolerance.
The most recent law bans the full-face veil, but tomorrow, the prohibitions may be against halal food, circumcision, the location of a mosque or the visibility of a minaret; even religious education might be banned for reasons of public health, security or cultural integration. Muslims, Roma, and to some extent Jews and Sikhs, are already struggling to be accepted as equal citizens in Europe, where right wing extremism is rising, in a situation of economic crisis.
The ECHR should be extremely careful in its decisions, given the growth of nationalism, xenophobia, and anti-immigrant sentiment in Europe.Considering this context, the EHCR’s main argument in this latest judgment is worrisome, since it accepted France’s view that covering the face in public runs counter to the society’s notion of “living together,” even though this is not one of the principles of the European Convention.
The Court recognized that the concept of “living together” was problematic (Para 122). And, even in using the “wide margin of appreciation” rule, the Court acknowledged that it should “engage in a careful examination” to avoid majority’s subordination of minorities. Considering the Court’s own rules, the main reasoning for the full face veil ban—“living together” seems to be inconsistent with the Court’s own jurisprudence.
Further concerns were raised about Islamophobic remarks during the adoption debate of the French Burqa Law, and evidence that prejudice and intolerance against Muslims in French society influenced the adoption of the law. Such concerns were more strongly raised by the two dissenting opinions. The dissent found the Court’s insensitivity to what’s needed to ensure tolerance between the vast majority and a small minority could increase tensions (Para 14). The dissenting opinion was especially critical of prioritizing “living together,” not even a Convention principle, over “concrete individual rights” guaranteed by the Convention.
While the integration of Muslims and other immigrants across Europe is a legitimate concern, it is vitally important the ECHR’s constructive role. The decision in SAS v France is a dangerous jurisprudential opening for future cases involving the religious and cultural practices of minorities. The French burqa law has created discomfort among Muslims. By upholding the law, the European court deepens the mistrust between the majority of citizens and religious minorities.
Headline image credit: Arabic woman in Muslim religious dress, © Vadmary, via iStock Photo..
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By Marko Milanovic
Last week the European Court of Human Rights produced a landmark decision in Al-Skeini v. UK, a case dealing with the extraterritorial application of the European Convention on Human Rights (ECHR). What a mouthful of legalese this is, you might think – so let me try to clarify things a bit. The main purpose of human rights treaties like the ECHR is to require the states that sign up to them, say the UK, France or Turkey, to respect such things as the right to life and legal due process, and prohibit the torture, of people living within the UK, France or Turkey.
But what happens when the US detains foreigners on foreign soil (Guantanamo), or kills people in Yemen, Pakistan, and Afghanistan with unmanned drones, or a former Russian spy is poisoned in London ostensibly at the orders or with the collusion of the Kremlin? The question that then arises is whether all these individuals have rights under human rights treaties against the US, the UK or Russia, even though the alleged violations of their rights did not take place in the US, the UK or Russia.
This question might appear to be counterintuitive. Human rights are, after all, supposed to be universal—why should it matter whether a state violates a person’s rights by acting within its territory or outside it? At the legal level however it is a matter of treaty interpretation. The scope of application of many major human rights treaties, including the ECHR, is defined by a very similar clause: the persons concerned must fall within the state’s jurisdiction for that person to be able to raise his or her rights against the state.
Courts both international and domestic have produced mounds of conflicting case law on how this is different from the state’s territory, with two main strands of decisions defining ‘jurisdiction’ either in spatial terms, as state control over territory, or in personal terms, as control over individuals, with a number of deviations from these two models in between. These contradictions flow partly from the vagueness of the legal concepts, but, also more importantly from conflicting policy considerations. On one hand, courts want to follow their human rights-friendly impulse and protect the individual affected by extraterritorial state action. On the other, courts fear political fallout, and therefore choose to unduly restrict the extraterritorial application of human rights instruments, often on seemingly completely arbitrary grounds.
The Al-Skeini case with which I started this post is a perfect example of this tension. It concerned six individuals, all killed by British troops in Basra, in UK-occupied southern Iraq. One of them, Baha Mousa, was killed while in custody in a British detention facility after much mistreatment. The five others were killed in varying circumstances by British troops on patrol. Some may even have been killed in justifiable or at least excusable circumstances, but their families wanted the UK to conduct an ECHR-compliant effective investigation into their killings. They thus brought proceedings before the UK courts under the Human Rights Act, claiming that the ECHR applied to the killing of their relatives in Iraq. The House of Lords (now rebranded as the UK Supreme Court) held that only Baha Mousa was protected by the ECHR, as his killing took place in a UK military prison, which (I kid you not) was somehow analogous to an embassy (more on that here). As for the other five, they were held not to have been within the UK’s jurisdiction as the ECHR could generally not apply outside the
