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Human Rights and the Burqa Ban in France

Introduction

Ever since the policy of multiculturalism had attained official status in Western countries, the conceptual incompatibility between universalist legislations, concerned with the protection of people’s human rights, and the ethnically visible citizens’ tendency to go about taking a practical advantage of their endowment with human rights in a cultural relativist manner, started to become increasingly apparent. The validity of this statement can be well illustrated, in regards to the controversy, associated with the French Senate’s 2010 decision to forbid Muslim women to wear burqas (also known as hijabs), while in public, which attained a legal status on April 5, 2001 (Britton 2011). Even though the justification for the passing of, what is now being commonly referred to as the ‘burqa ban’, has been concerned with reaffirming France’s status, as a thoroughly democratic and secular country, the fact that this ban now substantially reduces the scope of French Muslims’ religious freedoms, does not allow France to be considered a de facto democracy (Hunter-Henin 2012). In this paper, I will seek to explore the full soundness of this suggestion, while expounding on how the affected French citizens may go about opposing the ‘burqa ban’ in the court of law.

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Analytical part

As it was implied in the Introduction, the foremost motivation that prompted French politicians to introduce a ban on wearing burqas in public places, had to do with their belief that, while limiting the scope of Muslim citizens’ religious freedoms, they would be able to advance the cause of democracy. Apparently, these politicians never doubted the validity of their assumption that, regardless of what happened to be the specifics of French citizens’ ethnic or religious affiliation, all of them are being equally enthusiastic about celebrating the values of democracy. This, however, cannot possibly be the case – given the fact that the qualitative essence of people’s attitudes towards just about any socio-political concept (e.g. democracy) reflects the concerned individuals’ biologically predetermined cognitive predispositions; the assumed perceptual ‘neutrality’ of democracy is nothing but a universalist myth. What it means is that, while striving to promote democracy, by the mean of introducing the ‘burqa ban’, French politicians were in fact trying to advance their own vision on what the concept of democracy stands for. This, however, was done at the expense of denying the conceptual validity to other equally legitimate visions. In its turn, this explains why there are strongly defined feminist overtones to the publicly announced justifications of the ‘burqa ban’, “Many detractors of the burqa view it as a form of discrimination against women and argue that the garment should be banned in order to achieve gender equality and to ensure women’s dignity” (Heider 2012, p. 93). Therefore, there is nothing particularly odd about the fact that the ‘burqa ban’ has been met with much criticism, on the part of French Muslims, who rightly point out the ban’s racist implications, which uphold the legitimacy of the specifically White people’s view on democracy. After all, the U.N. 1949 Universal Declaration of Human Rights (UDHR) does not contain any provisions, as to the fact that the people’s right to exercise their freedom of religion should be assessed in regards to the particulars of a specific religion’s theological postulates. Moreover, the UDHR also points out the sheer illegality of the practice of denying believers the right to manifest their religious affiliation in public, “Everyone has the right to… manifest his religion or belief in teaching, practice, worship and observance” (UDHR Article 18 2001, para. 1). However, given the fact that, as of today, there is no legal mechanism for enforcing the UDHR’s provisions in practice, while arguing their case against the ‘burqa ban’, French Muslims will be so much better off doing it within the legal framework of the European Convention on Human Rights (ECHR). This is because the ECHR’s principles (which also establish an undeniable right for the EU’s citizens to practice their religion) are supposed to be enforced by the European Court of Human Rights” (Vakulenko 2007). At the same time, however, the ECHR does suggest that under certain circumstances, it is being justifiable for the governments in the EU’s countries to impose temporal restrictions upon the citizens’ right to exercise their freedom of religion. In essence, the governmentally sponsored restriction of the earlier mentioned human right can only be defined appropriate if: a) it promotes the cause of democracy, b) it is being concerned with the establishment of prerequisites for the state to be able to advance a particular legally legitimate aim, c) it observes the concerned country’s cultural climate (Bratza 2012). In other words, in order for French Muslims to prompt the European Court of Human Rights to declare the French ‘burqa ban’ illegal, they would have to prove that the passing of this ban has failed to take into account the earlier mentioned stipulations. In its turn, this provides us with insight on how the representatives of the French Muslim community may approach the task of arguing their stance on the issue:

  1. The ‘burqa ban’ cannot be defined, as such that promotes democracy, because the concept of democracy presupposes the rule of a majority. However, given the fact that, according to the recent demographic studies, French Muslims (consisting of predominantly non-Whites) will soon attain the majority status in France (Westoff & Frejka 2007), there can be very few justifications for continuing to believe that it is specifically the representatives of France’s ‘title-nation’ (White Christians), which are being in a unilateral position to impose their (highly secular) view of this concept upon their ethnically diverse co-citizens. The realization of this fact alone should provide the European Court’s juries with a good enough reason to seek the recall of the ‘burqa ban’ in France.
  2. The French ‘burqa ban’ cannot be referred to as such that helps the French government to pursue any legally legitimate state agenda. This is because, in order for legally binding legislation to be considered lawful, it must be thoroughly universalist. That is, they cannot have an effect on only selectively targeted categories of citizens while leaving the rest of the citizens unaffected (Cherti 2010). The validity of this statement appears especially self-evident, in regards to the fact that there are objective reasons to believe that the ‘burqa ban’ will be applied exclusively to the ‘ethnically visible’ French citizens. This, of course, exposes an essentially discriminatory nature of the ban in question and removes even a slight possibility for it to be thought of, as such that serves any lawful aim.
  3. While passing the ban on wearing burqas in public, French politicians have failed to take into account the particulars of the cultural climate in their country, concerned with the existence of ‘ethnic ghettoes’ in just about every French city (populated by the representatives of visually identifiable racial minorities), where French secular laws do not quite apply. Had it been otherwise, French police officers would not be receiving unofficial orders not to enter these ‘ghettoes’, especially during the time of racial riots, such as the one of 2005 (Brown 2007; Schneider 2008). What it means is that, due to the specifics of multicultural living in France, the French state authorities are being effectively deprived of an actual mechanism to enforce the implementation of the ‘burqa ban’. This should provide the European Court’s juries with yet an additional reason to declare the ban unlawful.

Conclusion

As it was shown in the paper’s Analytical part, there indeed exists a legal way for French Muslims to argue in favor of their opposition to the ‘burqa ban’, as such that violates their basic human rights. However, these people’s chances of winning their case in the European Court of Human Rights are not being solely concerned with their ability to expose the legal inconsistencies of the ban in question. This is because, despite the apparent progressiveness of the European Convention’s provisions, concerned with the protection of people’s right to practice their religion, they appear largely euro-centric – hence, the Convention’s overall universalist sounding. What it means is that along with resorting to the legal means of defying the ‘burqa ban’, French Muslims should also be concerned with creating objective preconditions for the Court’s juries to be simply in no position to continue denying the actual state of affairs, regarding the current cultural climate in France. Therefore, it will only be logical for these people to carry on indulging in the acts of civil disobedience, as the most effective method of encouraging the European Court’s jurors to come up with a discursively legitimate verdict, regarding the subject matter at stake.

References

Bratza, N 2012, ‘The “precious asset”: Freedom of religion under the European Convention on Human Rights’, Ecclesiastical Law Journal, vol. 14 no. 2, pp. 256-271.

Britton, D 2011, ‘Lifting the veil: France’s new crusade,’ Boston College International & Comparative Law Review, vol. 34 no. 1, pp. 117-145.

Brown, B 2007, ‘God and man in the French riots’, American Foreign Policy Interests, vol. 29 no. 3, pp. 183-199.

Cherti, M 2010, ‘The politics of Muslim visibility in Europe’, Public Policy Research vol. 17 no. 3, pp. 157-161.

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Heider, J 2012, ‘Unveiling the truth behind the French burqa ban: The unwarranted restriction of the right to freedom of religion and the European Court of Human Rights’, Indiana International & Comparative Law Review, vol. 22 no. 1, pp. 93-129.

Hunter-Henin, M 2012, ‘Why the French doesn’t like the burqa/laicite: National identity and religious freedom’, International & Comparative Law Quarterly, vol. 61 no. 3, pp. 613-639.

Schneider, C 2008, ‘Police power and race riots in Paris’, Politics & Society, vol. 36 no.1, pp. 33-159.

UDHR: Article 18. n.d. Web.

Vakulenko, 2007, ‘Islamic headscarves and the European Convention on Human Rights: An intersectional perspective’, Social & Legal Studies, vol. 16 no. 2, pp. 183-199.

Westoff, C & Frejka,T 2007, ‘Religiousness and fertility among European Muslims’, Population and Development Review, vol. 33 no. 4, pp. 785-809.

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