Contents
Introduction…………………………………………………………………………………….....2
Origins of hijab and human rights discourse…………………………………………………………………………………………..4
Hijab discourse in judgments related to human rights…………………………………………....8
National experience of worldwide obstacles………………………………………………………………………………………….12
Hijab and the doctrine of human rights: possible development and expectations……………….15
Conclusion……………………………………………………………………………………….17
References………………………………………………………………………………………..18
Introduction
Nowadays, in conditions of intercultural integration running at a blistering pace, specific legal means to sustain human rights should be actually not overvalued. On the onset of forthcoming economic and political crises, human rights organizations are established sufficiently in order to provide these rights with a profound legal framework. A tremendous agenda to mainstream human freedoms and rights has been successfully introduced to public administrations as the guiding principle of their inner and foreign policies. Hence supranational, international and national bodies have been established to monitor human rights and to provide them with governmental assistance.
Under the Vienna Declaration and Programme of Action adopted in 1993 by the World Conference on Human Rights incorporated national standards are proposed as the domestic human rights instruments involved to promote institutes and legislation. Thus, natural human rights should stay safeguarded under the state inner policies.
However, as long as public morals and political culture may be concerned a kind of cultural, political and religious discourse is revealed both in national and international aspects. Contemporary globalization is supposed to obtain a profound legal framework providing various cultures united by their colonial past with the opportunity of solid coordination. Though all controversies between neo-liberal European and domestic traditional ideologies allow neither efficient paradigm shift, nor comprehensible gradual path to consensus.
One of the most notorious examples of cultural diversity may be observed in personal and public relations between contemporary Europeans and immigrate Muslims. Specifically, intercultural communication in a context of religious freedoms is worth looking at. Whereas one’s right to obey his religious beliefs hardly could be concerned, the right to behave under informal rules on the issue of outfit is reprimanded more and more often.
The right of Muslim women to wear a headscarf as a visible marker of their religious identity induces a growing amount of debates all over the world. The natural opportunity to act under the dogma of private conscience corresponds the obligation for others to be tolerant and respectful. At the same time, the headscarf legitimacy may be concerned as far as human visions of equality are differentiated. The rights of Muslim women transfer the obligations to others, though Muslims are accused of not taking traditional rules of European culture into their account.
The natural law grant the basics of human rights not to an actual sovereign citizen, but to the humans at all. Whilst one’s right should be respected and appreciated, a question of equity is invoked due to diverse cultural systems and their coordination. The key points of human rights discourse and the proliferation of human rights organization in the face of rather frequent violations should be examined close to the questions of institutional change. The main goal of this article is to clear out if the necessity of such change is required in practice.
Origins of Hijab and Human Rights Discourse
According to theoretical bases of state and law, enactment of legal rules as a formal means to conduct human behavior differ substantially from the nature of religious dogmas. Traditional, cultural, historical and political features of nation do maintain faith.[1] At the same time, the natural law refers to objective values and demands of human genesis and acts as the only ideal condition either for state, or for its legislature. Hence the law in a sense of its natural aspect is considered as source of unalienable human rights set up irrespectively of concrete legal systems. Under the doctrine of natural law traditional and cultural behavior features influence only the content of right, while the sense of law is respected as fundamental. Religion is a specific cultural form that determines development of humans in the community. Thus, the law in objective sense maintains subjective human right that is defined within historical sense of a concrete cultural system.[2]
Even though the natural basis of human rights is objective the guiding policy principle of human rights are embraced by the acts of international law: Universal Declaration of Human Rights (1948), European Convention on Human Rights (1950), International Covenant on Civil and Political Rights (1966).
According to Art. 2 of the Universal Declaration of Human Rights (UDHR) everyone is entitled to all the rights and freedoms set in the Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, status. Under Art. 9 of European Convention on Human Rights everyone has the right to freedom of thought, conscience and religion (including the right to manifest his belief or religion.
International human rights organizations, notably the United Nations Office of the High Commissioner for Human Rights, have addressed human rights impact as the priority, which should be monitored strictly.[3] In this case, general legal provisions of international treaties determine the way nascent national legislature should be developed. Thus, both human rights discourse and probable violations of human rights should be prosecuted on the national level.
In fact, the most curious example of controversies between indigenous values and traditions of foreign political system may be observed under the French legislation.Actually, the headscarf (hijab or nicab, purdah) represents the identity of woman, whose beliefs belong to Islam. According to international declarations and covenants women are free to manifest their beliefs or religion. Moreover, up to Art. 1 of the French Constitution of October 4, 1958 France shall ensure the equality of all citizens before the law, without distinction to origin, race or religion. Nevertheless, neither international, nor constitutional doctrine of human rights nowadays is rallied with the French common policy.
Under the Art. L. 141-41 of the French Education Code in state primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. SuchanamendmenttolegislationwaspassedonMarch 15, 2004. As mentioned by Ellen Wiles, all questions on the legitimacy of the law banning headscarves have consequently opened Pandora’s box of cultural and legal controversies. The embodiment of the French legislation has provoked an amount of major collisions either domestically, or internationally.[4]
The common allegation of the French government refers to the general and non-personal pattern of a legal enactment. In fact, there could be hardly a notice of discrimination, while the enacted provisions are universal. Hence the equity principle is not violated and religious manifestations are prohibited without any stress on a specific social group or community. The amendment to the French Code of Education, being considered within the broader social conditions, seems to restrict rights of Muslims in France specifically.
Firstly, the amendment matches up with the abided policy of national secularism (laicite) inherited from the colonial past of Muslims in France.[5] The guiding ideology underlying the attitude to religious diversity and immigration was already set up in 1993 by President Francois Mitterand. Under the report on issue of High Commission of Integration establishment, the following principle was introduced: “the French conception of integration should obey a logic of equality and not a logic of minorities.[6]
Initially, the interpretation of equality as cultural sameness excluding minority may be considered as precondition of the current French human rights policy. Neo-liberal values govern marginal ideologies of globalization, but in fact any cultural approach of the immigrants contradicts universal European political culture. The key point of the last one is reflected with “sameness excluding minority” concept. Besides, the doctrine of human rights should have never been equal to a cover of pure political correctness. Hence the guiding idea of western policy in relation to local communities performs as the only alternative to classical theory of liberalism. Positive law and public institutions established may obtain nothing in common with human rights, whereas, firstly, political culture is a kind of universal civilized violence and, secondary, traditional features are annihilated.[7]
In spite of integration concept suggested by Mitterand, definition developed by Fukuyama seems more relevant to contemporary human rights ideology. As Fukuyama prescribes, integration is based not on the concept of total globalization, but on issue of intercultural interdependence and tolerance as a true democratic criterion. In fact, two main attributes should be considered as ones of vital importance. Firstly, all the notorious nationalistic ideas are developing, whereas national sovereignty contravenes integration. Secondary, massive migration of intercultural residents affects the policy and economy of Europeans without any regard of tolerance. When financial system does suffer it may be upheld with the legal regime. The benefit of the overall nation seems for national state to be prior to pure correctness and natural law that may never do profit.
Despite Mitterrand’s mood, the further diversity between the French and Muslims has been intensely warmed up since 1993 report was prepared by Mitterand. In 2002, then-Interior Minister Nicolas Sarkozy attempted to demonstrate solidarity with Muslims by permitting a Muslim Council to formally represent Muslim views. However, there still has been hardly tolerant mood. So, in 2009, Sarkozy expressed his opinion on issue quite clearly: “Hijab symbolizes all women’s slavery. A woman dressed up in hijab are actually between the bars – they lack either social life, or their private individuality”.[8]
In March 2010, the National Assembly initiated a bill in order to prohibit hijab and nicab completely. Consequently, the bill was rejected by the Council of State. The proposed legal provisions were treated as contravene either to the Constitution of France, or to European Convention on Human Rights. If enacted the bill must have invoked far too much suits that may have totally paralyzed national court system.
Under the doctrine of natural law human beings are free to manifest their religious beliefs independently. At the same time, as long as objective human rights are advanced by locating their cultural roots dissension and conflicts may be observed.[9]
It is worth notice that France is not the only country, in which multiculturalism and secularism discourses cannot help being arisen. For instance, two years later than France the House of Lords delivered a judgment in the case of schoolgirl prevented from wearing her traditional clothes (R v. Headteachers and Governors of Denbigh High School, 2006). The Law Lords overrode the lower Court of Appeal’s judgment along with the reasons of policy priorities conflict and cultural diversity issues. Academic discourse and commentary were awoken immediately.
Hijab discourse in judgments related to human rights
After a glance at the specific example of French and Britishintercultural hijab discourse practice and hearings of the European Court of Human Rights (ECtHR) may be scanned in a sense of human rights principles and violation of them. As long as intercultural relationships in a sense of religion should be concerned, debates on issue of common sense, discrimination and bias hardly could be avoided. The principles of non-discrimination were outlined by ECtHR in respect of religion and conscience. Specifically, ECtHR has delivered decisions on the issues concerning prohibitions of the wearing hijab in the public.
For instance, under the case Thlimmenos v. Greece (application #34369/93, 8 April 2000 ECHR, 2000-IV p. 47) definition of so called positive discrimination is completely provided. Discrimination in a kind of wide and positive sense does include violation of equality principles. There is no point in treating people as equal, whereas the consequences of their experience and their living conditions differ a lot. Hence intercultural bias arises. When legal status of not only multiconfessional people contains inappropriate set of rights and obligations for each social role, Article 14 of ECHR is violated.
Legal position of ECtHR was also maintained under the case Saadi v. Italy. The priority of practice in relation to positive legislature was declared as the guideline of adequate human rights guarantee. Whereas human rights are violated by the positive law none of its discriminative norms should be treated in legal force. In this sense ECtHR underlined substantial diversity of the natural and positive law. The first one is considered as prior and must not be violated forever in order for human rights to be guaranteed.
The most notorious case, in whichintercultural Muslim relationships were definitely taken into account, was Leyla Sahin v. Turkey (application #44774/98, Strasbourg, 10.XI.2005, p. 74) and a number of “satellite”-cases to this major one. From the key point of case human freedom to identify his religion is reflected due to the right on free conscience. Limitation of human rights is considered by ECtHR as acceptable, when any reasonable consequences may be observed.
At the same time, such norm is prescribed within Art. 9 of ECHR, which states: freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. However, the postulate of obligatory positive law that allows slight exclusion in the name of one’s interests seems a bit contradictory to the guideline of Saadi v. Italy. The principle of practical-orientated behavior that dominates over administrative legal rules (Saadi v. Italy) has been changed to the concept of legal framework (Sahin v. Turkey). Actually, the second interpretation of positive law is prone to make much more sense under the doctrine of natural law. The first model acts as the most appropriate one from the point of national sovereignty doctrine. Hence it provides for more attractive abilities for inner state legislature in a reason of public policy needs.
In fact, following conclusion shows that various doctrinal approaches are possible in regard of different ECtHR applications. So let’s examine deeper the key case of Sahin v. Turkey along with its earlier satellite cases.
One of the earliest cases concerning the difficulties of wearing hijab was Karaduman v. Turkey considered by the European Commission on Human Rights in 1993. Under the matter of case, a university graduate was unable to confirm her qualifications with proper diploma as long as university rules required her to submit a photograph with an unveiled head. The legal bases of claim concerned breaches of Article 9 and Article 14 ECHR that prohibit discrimination in its national aspect. The case faced up the obstacles to overcome admissibility stage, though a kind of preliminary indications of the ECtHR further mood cannot help being noticed.
For example, the following position of European Commission on Human Rights may be surveyed. As soon as the complaint was examined, ECmHR was of the opinion that none of ECHR articles should always guarantee the right on deviant behavior in the public sphere. The applicant’s choice to study at a secular university was not ever compulsory. Hence legal status of European student does provide him with the number of implied certain rules to obey. Otherwise, the rights and freedoms of neighborhood will be violated. Consequently, ECmHR mentioned jeopardy of religious fundamentalist currents, protection against which justified all the restrictions on applicant.
Therefore, public policy of dominating community obtains influence on the basic natural principles of human rights that may be interpreted within the needs of the state. The perception of headscarves is rendered as not only religious-oriented issue, but in a sense of political and publicly influenced statement. Citing Vakulenko, dominant community structure was prone to dictate its conditions to local residents. The formal “choice” of secular universities should be treated as fictional –imposed by the governing structure. Due to presumption that all individuals perform as the most rational agents in a chase of utility, realistic option to obtain the same level of education in non-secular university seems unlikely indeed[10]. As the applicant stated none of foreign national students had been lack of total freedom in respect of clothing during their studies in Turkey. Turkish female students suffered particularly, whereas all the restrictions on gender and clothing were upheld by ECmHR.
In 2001, application on case of Dahlab v. Switzerland was delivered by ECtHR. Whilst in the earlier case of Karaduman female student had been abused in her rights, in Dahlab public-school teacher did suffer. Had been wearing hijab to her work for almost five years, she was asked to get rid of it once. The applicant’s claim found its grounds connected to tort of discrimination. Hence, as in Karaduman, Article 9 and Article 14 ECHR were involved, even though interpreted differently. Dahlab lost her case either. Nevertheless, ECtHR’s reasoning has slightly improved in respect of details. Hence the case is called “a critical point in the development of the ECHR jurisprudence on Islamic headscarves”.[11]