1. Hertie
School
of
Governance
Class
U5
Law
and
Governance
Convenor
Professor
Dr.
Nico
Krisch
Student
Steven
Lauwers
Date
11.11.2010
MEMO
2:
DOES
FRANCE’S
LAW
TO
BAN
THE
ISLAMIC
HIJAB,
OR
BURQA,
IN
PUBLIC
SPACE
VIOLATE
THE
EUROPEAN
CONVENTION
ON
HUMAN
RIGHTS
(‘ECHR’)?
(word
count:
915)
Introduction:
Article
9,
§1
of
the
ECHR
guarantees
the
“freedom
of
thought,
conscience
and
religion;
(…)
and
in
public
or
private,
to
manifest
his
religion
or
belief,
in
worship,
teaching,
practice
and
observance.”
This
freedom
is
however
limited
in
§2,
as
it
is
“subject
only
to
such
limitations
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
the
protection
of
the
rights
and
freedoms
of
others.”
i
The
memo
will
explain
why
France’s
law
violates
Article
9
of
the
ECHR.
Interference:
Does
France’s
law
interfere
with
Article
9
of
the
ECHR?
-­
Yes.
France’s
new
law
states
that
“(i)n
a
public
space,
it
is
prohibited
to
wear
clothing
that
covers
the
face”.
ii
This
law
thus
applies
to
the
Burqa
(or
Hijab):
a
garment
worn
by
women
in
some
Islamic
traditions
to
cover
their
bodies
and
face
in
public
spaces.
While
some
might
argue
the
Burqa,
or
Hijab,
is
“not
a
religious
symbol”,
depending
on
how
one
interprets
the
Koran,
it
is
undeniably
associated
with
Islam
religion.
iii
Legitimacy:
Is
the
measure
prescribed
by
law?
-­
Yes.
If
we
refer
to
the
case
Şahin
v
Turkey,
law
can
be
defined
as
“regulatory
measures
taken
by
professional
regulatory
bodies”
and
“the
provision
in
force”
iv.
The
Lower
House
of
Parliament
approved
the
legislation
in
September
this
year
and
the
(preliminary)
law
was
already
published
in
Le
Journal
Officiel
on
March
17,
2004.
The
European
Court
for
Human
Rights
(‘ECtHR’)
may
even
consider
that
extensive
coverage
of
the
law
in
the
international
press
as
a
source
of
basic
due
process
notification.
v
Suitability:
Does
the
measure
have
a
legitimate
aim?
-­
Yes.
§2
of
Article
9
of
the
ECHR
explains
under
what
circumstances
the
states
may
interfere
with
religious
freedom.
France
argues
the
ban
is
necessary
in
their
democratic
society
to
safeguard
the
principle
of
secularism
(“laicité”),
which
protects
government
affairs
from
religious
involvement
-­‐
and
the
other
way
around.
Also,
in
order
to
uphold
public
safety
in
society,
a
person
in
a
public
space
has
to
be
identifiable
at
all
times.
Finally,
as
the
Burqa
is
associated
with
the
suppression
of
women,
the
ban
will
enhance
gender
equality
in
society.

2. Necessity:
Is
the
measure
proportionate
to
the
aim
to
be
achieved?
-­
No.
Article
9
of
the
ECHR
protects
the
individual
right
of
freedom
of
religion;
it
is
thus
important
that
the
interference
of
the
French
government
with
Article
9
of
the
ECHR
is
well-­‐
balanced
with
an
individual’s
need
and/or
right
of
freedom
of
religion
and/or
the
manifestation
of
his/her
religion.
The
following
analysis
will
show
that
the
measure
is
disproportionate
to
the
aim
to
be
achieved.
A
first
important
step
is
to
define
what
margin
of
appreciation
the
ECtHR
would
grant
France
to
interfere
with
Article
9
of
the
ECHR.
While
France
has
valid
concerns
for
the
ban
(ref.
‘Suitability’),
“many
legal
provisions
already
serve
to
ban
or
in
certain
cases
deter
people
from
wearing
the
full
veil
(…).”
vi
France
has
a
wide
range
of
individual
prescriptions
or
prohibitions,
making
its
legislation,
compared
with
that
of
similar
democracies,
one
of
the
most
restrictive
with
respect
to
these
practices.
vii
France
identifies
the
principle
of
“laicité”
as
one
of
the
pillars
of
their
society
and
argues
the
ban
is
necessary
to
safeguard
this
secularism.
The
principle
of
secularism
however
only
applies
to
public
institutions
to
assure
neutrality
from
representatives
of
public
authorities
in
the
exercise
of
their
duties.
It
can
also
only
be
binding
on
society
or
individuals
by
virtue
of
the
specific
demands
on
certain
public
services,
as
for
example
the
ban
in
(public)
schools.
viii
The
need
to
identify
individuals’
faces
is
the
core
of
the
public
security
argument,
but
a
ban
in
all
public
areas
is
disproportionate
to
the
aim
pursued,
especially
in
light
of
the
far-­‐reaching
implications
it
has
for
individuals
to
express
their
religious
beliefs.
ix
In
the
case
of
Ahmet
Arslan
and
others
v.
Turkey
the
ECtHR
ruled
that
the
limitations
imposed
on
the
followers
of
a
religious
minority,
who
were
sanctioned
for
wearing
their
religious
attire
in
the
streets,
were
not
proportionate
to
the
legitimate
aims
(public
safety
and
public
order)
pursued
by
the
Turkish
authorities.
x
Existing
provisions
in
France,
based
on
public
security
and
anti-­‐fraud
consideration,
already
require
people
to
identify
themselves
at
particular
times
and
thus
to
uncover
their
faces.
xi
Also,
insofar,
no
particular
public
security
problems
have
been
associated
with
the
Burqa,
or
Hijab,
as
such.
If
limited
to
situations
where
accurate
identification
is
of
crucial
importance
(e.g.
court
hearings,
airport
safety
checks,
etc.),
a
ban
would
be
proportionate
to
the
measures
to
be
achieved.
xii
Whereas
the
claim
of
gender
equality
may
be
justified
in
certain
cases,
the
complete
ban
of
the
Burqa
may
actually
aggravate
the
situation.
xiii
It
could
further
restrict
the
women's
freedom
by
tying
them
to
their
private
homes.
xiv
In
Şahin
v
Turkey,
the
ECtHR
stated
that
banning
headscarves
would
protect
the
freedoms
of
those
who
do
not
wish
to
wear
a
headscarf.
xv
The
ECtHR
will
however
need
to
consider
the
possibility
that
women
might
legitimately
feel
the
need
to
wear
the
headscarf
as
part
of
their
personal
duty
to
their
faith
and
not
due
to
coercion
from
outside.
Thus,
as
a
consequence
of
the
ban,
women
might
be
derived
from
the
possibility
to
exercise
their
personal
freedom.

3.
i
European
Convention
on
Human
Rights.
Available
at:
http://www.hri.org/docs/ECHR50.html
[Visited:
November
6,
2010].
ii
Projet
de
loi.
Available
at:
http://www.senat.fr/petite-­‐loi-­‐ameli/2009-­‐2010/700.html
[Visited:
November
6,
2010].
iii
ECLJ.
Legal
Analysis
Regarding
the
"Legitimacy
of
French
Proposal
to
Ban
the
Burqa
in
Public
Sphere.
Available
at:
http://www.eclj.org/Releases/Read.aspx?GUID=9bf429be-­‐368e-­‐463b-­‐831e-­‐5f0328b0ff00&s=eur
[Visited:
November
8,
2010].
iv
Leyla
Şahin
v.
Turkey.
2004.
European
Court
of
Human
Rights.
Para
77.
v
Boustead
K.
French
headscarf
law
before
ECHR.
Available
at:
http://www.law.fsu.edu/journals/transnational/backissues/issue16_2.html
[Visited:
November
9,
2010].
vi
Conseil
d'État.
Étude
relative
aux
possibilités
juridiques
d’interdiction
du
port
du
voile
intégral.
Available
at:
http://www.conseil-­‐etat.fr/cde/node.php?articleid=2000
[Visited:
November
6,
2010].
vii
Ibidem
viii
Ibidem
ix
L.
Peroni.
Would
a
Niqab
and
Burqa
ban
pass
the
Strasbourg
test.
Strasbourg
Observers.
Available
at:
http://strasbourgobservers.com/2010/05/04/burqa-­‐and-­‐niqab-­‐ban/#more-­‐166
[Visited:
November
6,
2010].
x
Ahmet
Arslan
and
others
v.
Turkey.
2010.
ECtHR.
xi
Conseil
d'État.
Idem.
xii
E.M.
Krockow.
Open
Think
Tank
Article
"The
Burqa
Ban
-­‐
Motiviations,
Justifications
and
Likely
Consequences".
Atlantic
Community.
Available
at:
http://www.atlantic-­‐community.org/index/articles/view/The_Burqa_Ban_-­‐
_Motiviations,_Justifications_and_Likely_Consequences
[Visited:
November
7,
2010].
xiii
T.
Hoopes.
The
Leyla
Şahin
v.
Turkey
Case
Before
the
European
Court
of
Human
Rights.
Chinese
Journal
of
International
Law.
Available
at:
http://chinesejil.oxfordjournals.org/content/5/3/719.full
[Visited:
November
10,
2010].
xiv
Ibidem
xv
Leyla
Sahin
v.
Turkey.
2004.
European
Court
of
Human
Rights.
Para
111.