Human Rights and Religion: The Islamic Headscarf Debate in Europe
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The debate on multiculturalism and human rights in Europe was reignited in 2004 by the Islamic headscarf ban in France. The legal and political tensions thrown up by this debate are now being witnessed in many European states. The Place of religion in schools in general, and wearing of religious dress in states schools in general, and wearing of religious dress in state schools in particular, has become an issue across Europe. Supporters of the right to wear the Islamic headscarf argue that the ban similar prohibitions infringe a number of human rights. This book examines the issues by considering question of language, meaning and symbolism. In doing so it identifies the debates behind the debates. Detailed consideration is given to the headscarf debate in France. Comparative practice in a number of European states - Germany, Switzerland, Spain, Italy, Belgium, the Netherlands, the United Kingdom and Turkey - is also examined. Brief consideration is also given to a number of non-European states. The book also outlines the role and function of and international human rights law approach to the Islamic headscarf. It concludes with some wider reflections on the broader political and cultural struggles that lie behind the Islamic headscarf debate. This wider frame of analysis reveals the deeper significance of the Islamic headscarf bans.
Acknowledgments viiTable of Cases xvIntroduction 11 Human Rights and Religion: the Challenge of the Islamic Headscarf-Hijab 4Introduction 4The Headscarf-Hijab: Language, Meaning and Significance 4The Headscarf-Hijab as a Religious Obligation? 8The Real Debates Behind the Debates on the Headscarf-Hijab 12The Headscarf-Hijab as an Instrument of Oppression of Woman 13The Headscarf-Hijab as a Political Symbol 17The Headscarf-Hijab as Evidence of the Failed Integration of Immigrants 17The Headscarf-Hijab and Terrorism 20Human Rights Perspectives on the Headscarf-Hijab 22Religion and Human Rights 24The Human Right to Freedom of Religion 25Article 18 of the International Covenant on Civil and Political Rights 26Article 9 of the European Convention on Human Rights 27The National Assessment and the margin of Appreciation 28Parents and Children 30European Union Standards 30The Role of Human Rights Thinking 312 The Islamic Headscarf Debate in France 34Introduction 34The Church and State in France 36The Law of 1905 36Laicite and Secularism 38The French Approach to Rights 41Assimilation and Integration 44France and International Human Rights law 46How France view Muslims 47Muslims in France 52The Wearing of the Headscarf-Hijab in France 61The Headscarf-Hijab Debate in France: l' Affaire du Foulard 64The 1989 Opinion of the Conseil d' Etat 68Cases in the Conseil d'Etat 70The Neutrality of Civil Servants and Teachers 73The School Context 76The Headscarf-Hijab in the Private Sector 80President Chirac's Speech of 16 December 2003 81The Stasi commission 83The French Law onHeadscarves-Hijab of 2004 90The Application of the New Law 91Reactions to the Ban on the Headscarf-Hijab 96The Law of 2004-Two Years On 100Concluding Comments 1013 Comparative State Practice; Germany 107Introduction 107The Church and State in Germany 107The Muslim Community in Germany 109The Headscarf-Hijab Debate in Germany 110The Ludin Case 111The Minority Judgment in Ludin 114Responses to the Ludin Case 115Concluding Comments 1184 Comparative state Practice: Switzerland 120Church and state in Switzerland 120Muslims in Switzerland 120The Dahlab Case 121The Dehlab Case in the Swiss Federal Court 122The European Court of Human Rights in Dahlab 129Concluding Comments 1315 Comparative state Practice: Turkey 132Introduction 132State and Religion in Turkey 132The Headscarf-Hijab Debate in Turkey 133Turkish Cases Before the European Commission on Human Rights 137Leyla Sahin v Turkey the Judgment of the European Court of Human Rights 140The Assessment of the Grand Chamber on Article 9 European Convention on Human Rights Freedom of Religion 150The Assessment of the Grand Chamber of Article 2 of Protocol 1: the Right to Education 157The Assessment of the Grand Chamber on Articles 8 (privacy), 10 (expression) and 14 (non-discrimination) 159The Dissent of judge Tulkens' in the Grand Chamber 159The Significance of the Decision in Leyla Sahin v Turkey 167The Advocacy of Islamic Headscarves-Hijab in Turkish Politics 169Concluding Comments 1716 Comparative State Practice United Kingdom 173Introduction 173State and Church in the United Kingdom 173Muslims in the United Kingdom 174Muslims and School Uniforms in England and Wales 176The Begum Case in the High Court 180The Begum Case in the Court of Appeal 184The Begum Case in the House of Lords 190Conduding Comments 2037 Comparative State Proactive Spain, Italy, Belgium the Netherlands, and Other European States 205Spain 205Italy 206Belgium 210The Netherlands 212Other European States 214Concluding Comments 2188 Comparative State Practice; Non-European States 220Introduction 220The United States 220Uzbekistan 225Trinidad 230Afghanistan 232Singapore 233Saudi Arabia 233Iran 234Concluding Comments 2369 Applying International Human Rights Standards to the Headscarf-Hijab 237Introduction 237Individual Applications to National Courts and International Human Rights Bodies 237Individual and Group Identities and Rights 241Negative and Positive Aspects of a Human Rights 244The Right to Freedom of Religion 246The Human Rights Context of Church-State Relations Under the ECHR 247Limitations on religious freedoms on the basis of the 'protection of public order' and the 'protection of the rights and freedoms of others' 250Religious Discrimination and Islamophobia 252Religious Discrimination and the European Union 257Racial Discrimination 259Gender Discrimination and Feminist Perspectives 261Autonomy and Consent 270Minority Rights and Cultural Rights 275Children's Rights and Parents Rights 276Teachers Rights and Children's Rights 282Concluding Comments 28610 Wider Perspectives on the Headscarf-Hijab 288Introduction 288National Identity 288National Identity and International Human Rights law 289Changing National Identity 294Multiculturalism and Islamophobia 298Secularism Versus Religion 301Secularism and International Human Rights Law 303Secularism and Neutrality 304Liberalism and Religious Education 305Liberalism and Religious Fundamentalism 306Concluding Comments 308Author Index 311Index 317
