Do the Face-Veil Bans Violate International Law?

by Julian Ku

Belgium and France are both considering laws to ban the wearing of full-face veils in public. According to Amnesty International, such bans would violate international human rights law.

“A general ban on the wearing of full face veils would violate the rights to freedom of expression and religion of those women who choose to express their identity or beliefs in this way,” said Claudio Cordone, Amnesty International’s interim secretary general.

“At the same time the Belgian authorities must make sure that all women who chose to wear the full veil do so without coercion, harassment and discrimination.”

Under U.S. constitutional law analysis, such a ban would have serious trouble under the Constitution’s Free Exercise of religion clause, especially because it seems aimed pretty directly at the religious practice of a single group. (Are yamakas in public next?)  But it would depend on the secular purpose of the law, which I don’t know much about.

Under, say, Article 18 of the International Covenant on Civil and Political Rights to which both France and Belgium are parties, there seems to be a pretty serious conflict  since it guarantees a right to religious practice (emphasis added).

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

And then there is the European Convention on Human Rights, Art. 9(1) (emphasis added):

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

So maybe Amnesty has a point. I suppose there might be a decent argument that the full-face veil is simply not a manifestation of a religious belief through practice and observance. Or that there is a strong public need to ban this practice. But there seems a clear basis for a challenge under the ECHR at least.  But I am far from an expert in this area, and would encourage any readers with better knowledge of the facts behind the bans, or with knowledge of how Article 9(1) has been interpreted, to comment.

http://opiniojuris.org/2010/04/22/do-the-face-veil-bans-violate-international-law/

21 Responses

  1. I’m not sure that I know more about this stuff than you do, but I’d say it is extremely unlikely that a European court (France, Belgium or Strasbourg) would argue that face-veils are not a menifestation of religious belief. In the US, courts base their reluctance on establishment clause considerations. In Europe, that’s not quite it: it’s more a matter of general reluctance to wade into such political and sensitive areas.

    As for the ECtHR specifically: they might prefer not to go near it either. Given how sensitive this topic is, I’d say there’s a good chance they’d notch this one up to the countries’ “margin of appreciation”.

    BTW, I assume you know the French Conseil d’État has already opined that such a ban would be unconstitutional? This opinion is not binding, but it is certainly a place to start if you want to know what Continental courts will do with this.

  2. I don’t know if this comment will make it through the spam filter, but the full 46 page analysis of the Conseil d’État is here.

  3. How would the French government distinguish between veils worn for religious purposes and veils worn not for religious purposes? Other than a government-certified religious veil, I don’t know how the French legislature could separate the religious from the non-religious. But certification to wear the veil is a bad idea. And all of this presupposes that veils not worn for religious purposes are not protected by other French or international laws.

  4. For a pellucid perusal through the relevant issues, please see Ben Saul’s article, “Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols,” Forced Migration, Human Rights and Security, J. McAdam, ed.,  (Portland, OR: Hart, 2008): 181-212; Sydney Law School Research Paper No. 08/128; Islamic Law and Law of the Muslim World Paper No. 09-56. SSRN: http://ssrn.com/abstract=1292568

  5. The case on point is Leyla Sahin v Turkey. So the ECHR will not rule against France if it passes this law. All of the recent case law (El Morsli, Kurtulmus, Dogru, Singh, etc.) points in this direction.

    I assume the ban will be on all public face-covering, which would be compatible with Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). This law is really not that big a deal.

  6. For a detailed and thoughtful analysis that differs from Amnesty’s view on this subject, see Professor Karima Bennoune’s article cited below, in which she applies a contextual approach to conclude that the ECtHR ruled correctly in upholding the headscarf ban in Sahin v. Turkey:

    Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Equality Under International Law , 45 Colum. J. Transnat’l L. 367 (2007)

    SSRN: http://ssrn.com/abstract=989066

  7. An important issue is security. Hold-ups have been committed recently in France by people wearing face-veil, that is covering them from head to feet. It should indeed be clear that it is what the target of the law is: burqas covering women, or whoever is under this cloth, from head to feet, sometimes even with gloves.

    In other words, wearing the burqa might be a religious command, but it could be used by anybody to hide, and has been by people who were probably neither women, nor muslims. And in present times, that is not something you can afford.

  8. That’s brilliant Gilles, a really fantastic point you’ve made, because banning the burqa is surely going to stop bank robbers from covering themselves up. And I suppose we should outlaw wigs too, because although they bring succor to those undergoing chemotherapy, they can also be used to disguise one’s true identity.

    Give us a break.

  9. Indeed, Halloween masks have been used by not a few criminals here in the states but I’m not aware of any proposed legislation to ban them.

    And wearing the burqa or hijab is not a (Quranic) religious obligation (nor an injunction derived from hadith), in fact, it’s safe to say that veiling in general has been transformed by mass media in North America and Europe into a trope for and symbol of “many-things-Muslim” in ideologically motivated discourse. Hence, and for example, veiling becomes a thinly veiled discourse, say, between Islamists of various sorts and secularists of various stripes (as in both Iran and Turkey in the Islamic world and in France and elsewhere in Europe), one in which the concrete choice of Muslim women from around the world is submerged if not trivialized, and the variegated motley reasons (not all of which are simply and solely ‘religious,’ in fact, some we might rightly characterize as ‘Liberal’ or emancipatory) for veiling are ill-understood or ignored. As one author writes,
    Among countless other meanings, it [veiling] might make specific statements about a women’s piety, her values regarding sexual modesty, her resistance to Western notions of sexuality, he desire for privacy or mobility in male-dominated environments, or her membership in  a political or national movement.

    The tradition of veiling and modest dress pre-dates Islam, “acting as a marker of class, faith, ethncity and age in many cultures.” Veiling is often Quranic in inspiration insofar as modest dress is recommended and veiling is thought to exemplify such modesty for women (the relevant Quranic verses, 24: 30-31, ‘direct both Muslim men and women to dress and interact modestly, and also instruct women not to display their beauty except to their husbands and close relatives’).

    When one examines the ostensible reasons for banning ”the veil” one finds them chock full of false assumptions, stereotypes and anxieties and thus success in the endeavor to deny this practice will only serve to prolong and exacerbate religious, cultural and political conflict.

  10. Patrick, aren’t you a little quick to assume that these women have a choice about covering their face?

  11. David,

    I am afraid there is no other reason why someone could legitimately walk in a bank with his face covered, let alone several people. In any other case, the person(s) would be identified as a potential danger and the staff could react immediately. Indeed, they might not even let him/them in in many banks where you have to go through a corridor to enter.

    And if you want to know more about it, listen to this: there is also a ban from any face cover in demonstrations, in order to identify immediately people who only come to act as vandals.

  12. Anon: Read the relevant literature, some of which is here: http://www.religiousleftlaw.com/2010/04/to-veil-or-not-to-veil.html 

  13. Do bans on bigamy violate international law?
    The reasons are similar. In theory a person should be able to ‘choose’ to be a forth wife. Such a choice could hypothetically be ‘emancipatory’ and ‘liberal’. But in reality the practice has been shown to be exploitive in general.

    There are practical limitations to what a government in a free society can control to secure an individual’s freedom from exploitation without violating privacy rights. We don’t have such problems on this side of the pond, because most of our Muslims are integrated from diverse areas of the world, unlike portions of Europe with clusters of sizeable populations that have kept some exploitive traditions. If Miami resembled Pakistan instead of Cuba we would likely have also been forced to evaluate such things too in order to protect the personal freedom of the exploited individuals (without infringing on privacy rights). Similarly, if we’d had to confront the Holocaust and the devastation of WWII as up close and personally as Europe did we likely would have bans on Neonazi hate speech as they do.

  14. Anon,

    Some women may not view their veiling as a product of free choice and they are often correct. I make no assumption that everywhere and always veiling involves an unconstrained exercise of the will. I am not in favor of compulsion in such matters and thus believe women have, or should have, the freedom to choose whether or not to veil. Making space for such freedom is not served by countries banning the practice.

    Liz,

    You might acquaint yourself with the recent and relevant literature (my comment referencing same is awaiting moderation) which does not endorse your conclusion that “in reality the practice has been shown to be exploitive in general.”

  15. Mr O’Donnell, as you admit that you “aren’t in favor of compulsion in such matters” how exactly can that be avoided? Values and beliefs are the result of social conditioning. Doubtless, back in the day of Japanese foot-binding women coveted those tiny feet, and societies raised with suttee some women supported self-immolation. At certain times in history, even slaves supported slavery. It’s a societal version of Stockholm syndrome.

  16. Liz,

    Not all values and beliefs are the product of social conditioning (better, because not Skinnerian nor unduly behavioristic or determinist: ‘socialization’ and ‘acculturation’) simpliciter: I’ve rejected a few of the values and beliefs that I learned from my parents, at school, from the larger society, etc., while adopting others in their stead. And, having reached the age of reason, I take full responsibility for the various beliefs and values–and the practical implications that follow therefrom–that constitute my worldview, such as it is (being a bit of a hodgepodge).

    While none of us is “absolutely free,” some values and beliefs may indeed be the product of distorted preferences (what in the literature is somewhat misleadingly termed ‘adaptive preferences’*), or self-deception, wishful thinking, and so on, I’ll readily grant that (e.g., the ‘happy slave’), but there’s nothing intrinsic to the choice of veiling that makes it in all or most cases emblematic of adaptive preference formation or contrary to an ethics of free choice (on the meaning of same in the context of (Millian) Liberalism, please see Kwame Anthony Appiah’s The Ethics of Identity [2005]) .

    Incidentally, footbinding was a Chinese, not Japanese, practice!

    *”Misleading,” because they’re not always problematic. On adaptive preferences, in particular with regard to women, see Martha Nussbaum’s discussion in Women and Human Development: The Capabilities Approach (2000): 111-166.

  17. Some of the assumptions here are very disturbing. The notion that “international law” reaches so far into the domestic affairs, indeed culture, of the French people, should chill anybody.

  18. Yes, the assumption that human rights are universal and thus transcend the particularities of nationalist, ethnic or cultural identity are disturbing to those who don’t understand the nature of, or don’t believe in, human rights. These are the very same folks, however, who uncritically cling to the soul-destroying universality of a capitalist marketplace that makes mincemeat of territorial boundaries, that runs roughshod over cultural identities, and relentlessly trumps the values and principles of communities which prefer conceptions of the common good not beholden to idolatrous worship of exclusively commercial interests. Chilling indeed! 

  19. Pray do tell, Lex Economicus, from your enlightened position, what the culture of the French people is. Who gets to determine it? The politicians, who speak for the majority and powerful? Or should we deign to let French culture be developed from within and by the people, ie by, among others, those muslims who constitute part of the population and who wish to wear their burqas.

  20. Does International law cover the domestic policies of countries where wearing the veil is NOT optional? I assume that when the issue of the veil goes to international court as a violation of the universal right to “freedom of expression” Saudi Arabia will also be held to account next to Belgium?

  21. Liz,

    Your latest comment prompted me to add an “update” to my post on veiling at Ratio Juris and Relgious Left Law. Thanks!  

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