© 2019 Berkeley Journal of International Law || BAA

Mailing Address

Berkeley Journal of International Law
374 Law Building
School of Law, UC at Berkeley
Berkeley, CA 94720 USA

Email

Editor in Chief: bjil@law.berkeley.edu

Follow us on Twitter

  • BJIL

Prohibition of face veils in the EU and how it violates International Law


Article by Ramita Sareen,

The Burqa ban has proliferated in Western Europe at an alarming rate and around 14 countries have banned and implemented some kind of ban on face-coverings in public areas, with the Netherlands being the most recent. France and Belgium were the first countries to deal with this adherence to the burqa. A few of them have introduced general bans that extend to all public places while others have introduced regional bans in public spaces like schools and government buildings. The new legislation is largely viewed as targeting Muslim women who wear veils such as niqab and burqa, and thus, violating their basic human rights. This became clear in 2010, when France passed a law outlawing the wearing of any face-covering clothing items in public areas and subsequently in 2012, 2 Muslim women were fined when they wore the niqab publicly. Sas. v. France. The proponents of the ban argued that the dress symbolizes oppression of women, offends sexual equality, and poses a risk to public security as the person cannot be easily identified and could easily hide explosives or weapons and it prevented the people in France from “living together”.This is turn concealed the identity of the wearer which posed a security threat.


The primary focus of this Article is how compatible burqa bans are with international human rights law and how does International law view this legislative ban. Statistics show that there are only marginal numbers of women who wear burqas or niqabs in Europe. Despite that this has become a major issue and is still an ongoing issue in the continent. In addition to dealing and assessing this question of compatibility, this Article will focus on freedom of religion of Muslim women, how their right is violated, and assuming that this fundamental right is the one that is most invaded by this new illicit legislation. This article will also argue that a general ban on face veils especially in France cannot be justified.


THE INTERNATIONAL LAW PERSPECTIVE


There are several international and regional instruments under international human rights law that cover and protect the rights of individuals. These rights are the right to freedom of expression, freedom to profess any religion, prohibition against discrimination and other fundamental rights. These documents include the Universal Declaration of Human Rights(UDHR), International Covenant on Civil and Political Rights(ICCPR), Elimination on all forms of Discrimination against Women and the European Court of Human Rights. To understand the compatibility of the legislation with this law one must understand what does right to freedom of religion and expression cover and how does International law view this. Article 18 of the ICCPR states that “everyone shall have the right to freedom of thought, conscience, and religion.” The United Nations Human Rights Committee also states that this Article is not limited in its application to traditional religions or religions and beliefs with institutional characteristics and thus, has to interpreted broadly.


This issue is also covered by the European Convention on Human Rights (ECHR). Article 9 of the European Convention on Human Rights explicitly states that everyone has the right to freedom of thought, conscience, and religion. In Europe, Muslim women can rely on these human rights protections to defend themselves.


GENERAL BAN IN FRANCE


France has set a precedent for the rest of the countries in the EU, who have tried to implement some form of face veil ban. France’s general ban has said to violate all the conventions mentioned above. The “Living together” ruling of the European Court of Human Rights has been incompatible with all the conventions and the court has been in continuous violation of the various freedoms awarded to the Muslim women through these. Further, it is not articulated as a permissible reason to limit the rights guaranteed under Article 9. However, the Court stated that this was a valid ground to limit their freedoms and rights under various conventions.


The decision of the United Nations Human Rights Committee was opposite to that of the European Court of Human Rights. It ruled out that France’s ban on face coverings in public violates the rights of women who wear full veils even though France contends that their motive and concern is public security and that the idea to promote gender equality. Further, it also found that France’s general ban has inevitably harmed the rights of Muslim women to manifest their religious beliefs and is not convinced with Franc’s claim that such a ban was necessary to attain the goal of “living together” in society.


ADMISSIBILITY


France which has ratified various UN human rights treaties has failed to comply with the provisions of the conventions, especially Article 18 and 26 that define freedom of religion and right to non-discrimination respectively. Herein, France argued that this ban was a permissible limitation to the right of religion. The permissible limit as imposed by France does not pursue any legislative aim concerning any rights or reputations of others, the protection of national security, and the maintenance of public health or order or morals. For a restriction to be permissible it needs to respect the principle of equality and should be non-discriminatory. This satisfies that France had not complied under its obligations by violating the rights of Muslim women. France has failed to prove and identify that a threat to public safety could only be achieved by banning face veils and that most of the public threat and terrorism is caused by women who wear burqas or any other kind of face coverings. It has further failed to explain why was it necessary. A mere justification of public safety and the “living together” principle does not satisfy this big huge step and requires more explanation.


CONCLUSION


A general ban on the burqa is discriminatory and incompatible with both International law and human rights standards. Even though discrimination has been carefully crafted to include all kinds of face veils, it has mostly targeted the small population of Muslim women. The ban has divided the country and has failed to attain the goal of “living together” society. France has interfered with the religious freedom of Muslim women. A general nation-wide ban cannot be justified and requires more substance and clarity. The legislative ban is likely to be ineffective as there are women who have been encouraged to wear full veils in range and anger. Partial bans can, however, be justified in response to a particular situation or an emergency. Thus, I would discourage such interpretation of the laws and believe that France’s argument on public security, safety and order needs to be more coherent and transparent.