The Return of French Exceptionalism: France Bans the Burqa, Deports the Roma

by Julian Ku

The conventional wisdom among many international law folks is that the U.S. has (wrongly) embraced American exceptionalism in world affairs, often to the detriment of compliance with international law.  I don’t disagree that American exceptionalism exists, but I think the main problem with the “exceptionalism” meme is the idea that the U.S. is unique in its “exceptionalist” philosophy.  Other countries can, when push comes to shove, be just as “exceptionalist” as the United States. France’s recent outburst of exceptionalism is a nice case in point.

Today, France’s legislature voted overwhelmingly to ban the wearing of the burqa in public, despite the fact that the ban could in fact violate various international human rights treaties.  Separately, France has been aggressively deporting Roma (albeit with a plane ticket and cash voucher), despite the fact that this too could violate various international treaty obligations.

I actually don’t think the legal challenges to these two actions are really all that strong, but what is interesting to me is that France’s government is fighting back to international criticism by invoking France’s exceptional role in the development of human rights.  As France’s European Affairs minister said yesterday in response to a serious tongue-lashing from a EU commissioner,

“The tone she took … is not the manner one uses to address a great state like France, which is the mother of human rights,” he told French radio. “We are not the naughty pupil of the class whom the teacher tells off and we are not the criminal before the prosecutor.”

This sort of exceptionalist reaction to international criticism should sound familiar to Americans, although they may disagree about who is the true “mother of human rights”!

http://opiniojuris.org/2010/09/15/the-return-of-french-exceptionalism-france-bans-the-burqa-deports-the-roma/

6 Responses

  1. I actually don’t think the legal challenges to these two actions are really all that strong

    Huh? Since when are EU Member States allowed to throw out EU citizens without an individualised basis for doing so? While it is surely true that the free movement rights of EU citizens who are not workers are not as generous as often assumed, there is still no way that France can send a whole ethnic group back to their home MS without first checking whether any of them are in fact workers within the meaning of the Treaties. In a nutshell and transition periods aside: if a person does one honest day’s work every three months or so, they can stay, as can all their dependents. Then there is the possibility that some of them might qualify as established entrepreneurs.

    Art. 19(1) of the Charter of Fundamental rights couldn’t be clearer: “Collective expulsions are prohibited”.

    Then there is the non-discrimination rule of art. 21 Charter. Need I go on? How can this French policy possibly pass legal muster under EU law alone? (If need be, another quite viable legal challenge can be constructed under ECHR law.)

  2. It looks like the US are getting involved in the Roma thing: http://euobserver.com/9/30823/?rk=1

  3. I think the point is that the French state is taking a politically “popular” action and then waiting for the cases that rule against them to be decided in the distant future as they wend their way through the court system.

    The radio comments sound of the French term “cocorico!” known to many observers/lovers of France.  It also sounds in a “bras d’honneur”.

    Treating a minority group bad has a long history in France – as in many countries – especially as regard the Roma.  The irony of course is the limits placed on Eastern European countries by the EU to make sure that they are respecting Roma rights in their countries as part of the effort to be integrated into the European Space.

    As to American Exceptionalism, we recognize some others as being civilized but sometimes not sure if we think certain people are human.  Under French Exceptionalism, they recognize others as human, but do not see anyone else as civilized.  (Hope that makes someone smile).

    Best,
    Ben

  4. @Benjamin Davis: Both the French and EU court systems do in fact have interim measures. Perhaps Commissioner Reading should consider not only filing a case against France, but also asking the ECJ to file an injunction…

  5. On the Burqa ban…

    France is party to the European convention of human rights (ECHR).  All member states have ratified that their “domestic law[s] and administrative practices conform to the Convention” and if the Court holds that a member states is in violation of human rights, then that the state has to take positive action to remedy the breach, if necessary by introducing corrective legislation in its national Parliament.

    Any laws passed in the member states that outlaw the wearing of niqab or burqas can be legally challenged at the Court through Article 9 of the Convention.

    Article 9 guarantees every individual residing in the member states the right to freedom of thought, conscience and religion; including the right to manifest his religion or belief, in worship, teaching, practice and observance.  

    However, there are limitations to the expression or manifestation of religion “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.” 

    Several cases have been decided by the European Court of HR in relation to protecting the rights underlined in Article 9.  In order to challenge the state, a petitioner must show that there is state interference with his right to manifest his religious beliefs. That interference is easily shown here as France will fine women whom wear the burqa in public streets and govt and public buildings/facilities. To justify the interference, the state must demonstrate that the interference was 

    prescribed by law
    – which France can show now with the passing of the ban.  However since the French Constitutional Council warned against its constitutionality, it can be struck down and this prong won’t be met.

    directed at a legitimate aim
    – this will be very hard to show as the percentage of women actually wearing the burqa in France is less than 1% of France’s total population. If dignity for women is the goal – how this fine goes to preserving / giving dignity is very arguable.

    necessary in a democratic society – this is also arguable – democratic societies should let a woman choose her attire absent any national security or safety concerns which man French MPs say is not the motive behind the law. The stated motive is targeting the unequal treatment of Muslim women that is degrading by imprisoning them behind the burqa. There is no evidence supporting this view as most studies have shown that most women choose to wear the burqa and 25% of women wearing such niqabs are French converts of non Arab origin.

    Another question is how France will enforce such a law in a practical sense.

    If France’s intent is to increase the dignity of women and specifically Muslim women, it should not only look at things from a French ethnocentric perspective but also include a diverse pool of women in whatever study, forum or dialogue and brainstorm how to improve the status of all women in French society.   
    look to France 24 fo rmore info: http://www.france24.com/en/20100708-anti-veil-law-risks-being-shot-down-france-constitutional-council-burqa-ump-party-government

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